-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hvl9dMKZsJyJ/h6e0CftOgvDSPwpcDn+jwg3S8ECDf6RrxlU0YyiJF8D9WyWCGlK O8c0N9DRnMDT3OI52IjO7g== 0000950131-97-003610.txt : 19970526 0000950131-97-003610.hdr.sgml : 19970526 ACCESSION NUMBER: 0000950131-97-003610 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19970523 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERCANTILE BANCORPORATION INC CENTRAL INDEX KEY: 0000064907 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 430951744 STATE OF INCORPORATION: MO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-25775 FILM NUMBER: 97613557 BUSINESS ADDRESS: STREET 1: P O BOX 524 CITY: ST LOUIS STATE: MO ZIP: 63166-0524 BUSINESS PHONE: 3144252525 MAIL ADDRESS: STREET 1: P O BOX 524 CITY: ST LOUIS STATE: MO ZIP: 63166-0524 FORMER COMPANY: FORMER CONFORMED NAME: MERCANTILE TRUST CO DATE OF NAME CHANGE: 19720229 S-3/A 1 MERCANTILE BANCORPORATION INC. AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 23, 1997 REGISTRATION NO. 333-25775 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- MERCANTILE BANCORPORATION INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) MISSOURI 6712 43-0951744 (STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER JURISDICTION OF INDUSTRIAL IDENTIFICATION NUMBER) INCORPORATION OR CLASSIFICATION CODE ORGANIZATION) NUMBER) ONE MERCANTILE CENTER P.O. BOX 524 ST. LOUIS, MISSOURI 63166-0524 (314) 425-2525 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) --------------- JON W. BILSTROM, ESQ. GENERAL COUNSEL AND SECRETARY MERCANTILE BANCORPORATION INC. P.O. BOX 524 ST. LOUIS, MISSOURI 63166-0524 (314) 425-2525 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) --------------- COPIES TO: JOHN Q. ARNOLD ROBERT M. LAROSE, ESQ. ROBERT P. DAVIS, ESQ. CHIEF FINANCIAL OFFICER THOMPSON COBURN CLEARY, GOTTLIEB, STEEN & MERCANTILE BANCORPORATION SUITE 3400 HAMILTON INC. ONE MERCANTILE CENTER 1 LIBERTY PLAZA P.O. BOX 524 ST. LOUIS, MISSOURI 63101 NEW YORK, NEW YORK 10006 ST. LOUIS, MISSOURI (314) 552-6000 (212) 225-2000 63166-0524 (314) 425-2525 --------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE PUBLIC: From time to time after the effective date of this Registration Statement as determined in light of market conditions. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
PROPOSED PROPOSED TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE(2) - ---------------------------------------------------------------------------------------------------- Debt Securities........ $500,000,000 100% $500,000,000 $151,515.15 - ----------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------- (1) Estimated solely for the purpose of computing the registration fee. (2) The Registrant previously paid $151,515.15 with the original filing on April 24, 1997. --------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED MAY 23, 1997 PROSPECTUS DEBT SECURITIES MERCANTILE BANCORPORATION INC. Mercantile Bancorporation Inc. ("Mercantile") from time to time may offer its unsecured debt securities (the "Debt Securities"), which may be either senior (the "Senior Debt Securities") or subordinated (the "Subordinated Debt Securities") in priority of payment, up to an amount resulting in proceeds to Mercantile of approximately $500,000,000. The Debt Securities may be offered as separate series in amounts, at maturities, at prices and on terms to be determined at the time of sale as set forth in a supplement or supplements to this Prospectus (a "Prospectus Supplement"). Mercantile may sell Debt Securities to or through underwriters, and also may sell Debt Securities directly to other purchasers or through agents. If Mercantile, directly or through agents, solicits offers to purchase the Debt Securities, Mercantile reserves the sole right to accept, and together with its agents, to reject in whole or in part any proposed purchase of Debt Securities. See "Plan of Distribution." The terms of a particular series of Debt Securities, including the specific designation, aggregate principal amount, denominations, maturity, rate (which may be fixed or variable) and time of payment of interest, if any, subordination terms, if any, any terms for redemption at the option of Mercantile or the holder, any terms for sinking fund payments, the initial public offering price, the names of, and the principal amounts, if any, to be purchased by, underwriters and the compensation of such underwriters, and the other terms in connection with the offering and sale of a particular series of the Debt Securities in respect of which this Prospectus is being delivered, will be set forth in a Prospectus Supplement. THE DEBT SECURITIES OFFERED BY THIS PROSPECTUS ARE NOT SAVINGS OR DEPOSIT ACCOUNTS, ARE NOT OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NON- BANKING AFFILIATE OF MERCANTILE BANCORPORATION INC., ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY AND INVOLVE INVESTMENT RISKS, INCLUDING POSSIBLE LOSS OF PRINCIPAL. ------------ THE DEBT SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is , 1997. NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY MERCANTILE, OR ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF MERCANTILE SINCE THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND ANY RELATED PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. AVAILABLE INFORMATION Mercantile is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, files with the Securities and Exchange Commission (the "Commission") reports, proxy statements and other information. Such reports, proxy statements and other information filed with the Commission by Mercantile can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional offices located at Suite 1300, Seven World Trade Center, New York, New York 10048 and Suite 1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661. The Commission maintains an Internet site on the World Wide Web containing reports, proxy and information statements and other information filed electronically by Mercantile with the Commission. The address of the World Wide Web site maintained by the Commission is http://www.sec.gov. Mercantile Common Stock is listed on the New York Stock Exchange (the "NYSE"), and such reports, proxy statements and other information concerning Mercantile are available for inspection and copying at the offices of the NYSE, 20 Broad Street, New York, New York 10005. This Prospectus constitutes a part of a registration statement on Form S-3 (together with all amendments and exhibits thereto, the "Registration Statement") filed by Mercantile with the Commission under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the Debt Securities offered hereby. This Prospectus does not contain all the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission, and reference is hereby made to the Registration Statement and to the exhibits relating thereto for further information with respect to Mercantile and the Debt Securities. Any statements contained herein concerning the provisions of any document are not necessarily complete, and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission, which may be inspected without charge at the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C 20549. Each such statement is qualified in its entirety by such reference. Copies of the Registration Statement may be obtained from the Commission at the same address upon payment of the prescribed fees. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE THIS PROSPECTUS INCORPORATES BY REFERENCE DOCUMENTS RELATING TO MERCANTILE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. IN ADDITION, THIS PROSPECTUS INCORPORATES BY REFERENCE DOCUMENTS RELATING TO ROOSEVELT FINANCIAL GROUP, INC. ("ROOSEVELT"), A DELAWARE CORPORATION AND SAVINGS AND LOAN HOLDING COMPANY, WHICH RECENTLY ENTERED INTO A DEFINITIVE AGREEMENT WITH MERCANTILE TO BE ACQUIRED BY MERCANTILE. SUCH DOCUMENTS, EXCLUDING EXHIBITS UNLESS SPECIFICALLY INCORPORATED THEREIN, ARE AVAILABLE -2- WITHOUT CHARGE TO ANY PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST, TO JON W. BILSTROM, GENERAL COUNSEL AND SECRETARY, MERCANTILE BANCORPORATION INC., P.O. BOX 524, ST. LOUIS, MISSOURI 63166-0524, TELEPHONE (314) 425-2525. The following documents filed with the Commission by Mercantile under the Exchange Act are incorporated herein by reference: (i) Annual Report on Form 10-K for the year ended December 31, 1996; (ii) Quarterly Report on Form 10-Q for the quarter ended March 31, 1997; (iii) Current Reports on Form 8-K dated May 2, 1997 and May 13, 1997 and Current Report on Form 8-K/A dated May 22, 1997; and (iv) Amendment No. 1 to Mercantile's Registration Statement on Form S-4 (File No. 333-25131), filed on May 19, 1997. The following document filed with the Commission by Roosevelt under the Exchange Act is incorporated herein by reference: Roosevelt's Annual Report on Form 10-K for the year ended December 31, 1996, as amended on Form 10-K/A on March 14, 1997 and on Form 10-K/A-2 on April 29, 1997. All documents filed by Mercantile and Roosevelt pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the termination of the offering made hereby shall be deemed to be incorporated by reference herein and made a part hereof from the date any such document is filed. The information relating to Mercantile and Roosevelt contained in this Prospectus does not purport to be complete and should be read together with the information in the documents incorporated by reference herein. Any statement contained herein or in a document incorporated herein by reference shall be deemed to be modified or superseded for purposes hereof to the extent that a subsequent statement contained herein or in any other subsequently filed document incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof. Any statements contained in this Prospectus involving matters of opinion, whether or not expressly so stated, are intended as such and not as representations of fact. As used herein, the terms "Prospectus" and "herein" mean this Prospectus, including such documents incorporated or deemed to be incorporated herein by reference, as the same may be amended, supplemented or otherwise modified from time to time. Statements contained in this Prospectus as to the contents of any contract or other document referred to herein do not purport to be complete, and where reference is made to the particular provisions of such contract or other document, such provisions are qualified in all respect by reference to all of the provisions of such contract or other document. CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS Certain statements contained in the sections entitled "Mercantile Bancorporation Inc." and "Recent Developments" and certain statements incorporated by reference from documents filed with the Commission by Mercantile and Roosevelt are or may constitute forward-looking statements (as such term is defined in the Private Securities Litigation Reform Act of 1995). Because such statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. MERCANTILE BANCORPORATION INC. Mercantile is a registered bank holding company headquartered in St. Louis, Missouri and incorporated under the laws of the State of Missouri in 1970. At March 31, 1997, Mercantile, directly or through its subsidiaries, owned all of the capital stock of Mercantile Bank National Association, based in St. Louis, Missouri ("Mercantile Bank") and 27 other commercial banks and one federally chartered thrift, all of which operate from 467 banking offices and 427 Fingertip Banking automated teller machines located throughout Missouri, Illinois, Iowa, Arkansas and eastern Kansas (collectively, the "Banking Subsidiaries"). Mercantile's services concentrate in three major lines of business-- consumer, corporate and trust and investment advisory services. Mercantile also operates non-banking subsidiaries that provide related financial services, including investment management, brokerage services and asset-based lending. -3- Mercantile has one acquisition transaction currently pending; the proposed acquisition of Roosevelt, which is headquartered in St. Louis, Missouri. For further information regarding the pending acquisition of Roosevelt, see "Recent Developments." Mercantile is a legal entity separate and distinct from Mercantile Bank and Mercantile's other Banking Subsidiaries and affiliates. Because Mercantile is a holding company, its rights and the rights of its creditors and shareholders, including the holders of the Debt Securities, to participate in the assets of any subsidiary upon its liquidation or recapitalization will be subject to the prior claims of such subsidiary's creditors except to the extent that Mercantile may itself be a creditor having recognized claims against such subsidiary, in which case it will share in such subsidiary's assets along with other creditors. As a result, the Debt Securities will be effectively subordinated to all existing and future liabilities, including trade payables, of Mercantile's subsidiaries. There are various legal and regulatory limitations on the extent to which Mercantile's Banking Subsidiaries may extend credit, pay dividends or otherwise supply funds to Mercantile. The approval of the Office of the Comptroller of the Currency (the "OCC") is required if total dividends declared by a national bank in any calendar year should exceed net profits for that year combined with its retained net profits for the preceding two years. Moreover, banks may not pay dividends in excess of their undivided profits. In determining whether and to what extent to pay dividends, each Banking Subsidiary must also consider the effect of dividend payments on applicable risk-based capital and leverage requirements as well as policy statements of the federal regulatory agencies to the effect that, generally, banking organizations should pay dividends out of current operating earnings. Mercantile's state-chartered Banking Subsidiaries are subject to similar restrictions under their respective state laws. While the specific standards vary from state to state, the Banking Subsidiaries are generally permitted to pay dividends only from net profits, and then, only after first deducting losses and credit write-offs. All of the applicable state statutes prohibit the payment of dividends if such a payment would impair capital. In addition, numerous governmental requirements and regulations affect the activities of Mercantile and its bank and non-bank subsidiaries. See the discussion in Part 1, Item 1 of Mercantile's Form 10-K for the year ended December 31, 1996 under the caption "Supervision and Regulation." The principal executive offices of Mercantile are located at One Mercantile Center, P.O. Box 524, St. Louis, Missouri 63166-0524 (telephone number (314) 425-2525). RECENT DEVELOPMENTS As of March 31, 1997, Mercantile reported, on a restated consolidated basis, total assets of $22.1 billion, total deposits of $17.4 billion and shareholders' equity of $1.9 billion compared with total assets of $20.9 billion, total deposits of $16.4 billion and shareholders' equity of $1.9 billion as of March 31, 1996. For the three months ended March 31, 1997, Mercantile reported, on a restated basis, net income of $0.98 per share, compared to $0.21 per share (which includes one-time acquisition charges) for the three months ended March 31, 1996. During the fourth quarter of 1996, Mercantile announced the execution of a definitive agreement to acquire Roosevelt, a Delaware corporation and a savings and loan holding company. The definitive agreement is dated December 23, 1996 and the transaction is expected to close during the third quarter of 1997. Such transaction is subject to prior approval of the stockholders of Roosevelt and appropriate regulatory approvals. Roosevelt, with its executive offices in St. Louis, Missouri, owns Roosevelt Bank and one Missouri state-chartered bank, all of which operate from 81 locations in Missouri, Kansas and Illinois. As of March 31, 1997, Roosevelt reported, on a consolidated basis, total assets of $7.5 billion, total deposits of $5.3 billion and total stockholders' equity of $469.6 million. Upon consummation of the transaction, Mercantile will issue up to 13 million shares (which will include up to 7 million reissued treasury shares) of its common stock at an exchange ratio of .4211 for each share of Roosevelt common stock, or $22.00 per share in cash, as consideration in the acquisition. The Roosevelt transaction will be accounted for as a purchase. -4- On February 4, 1997, Mercantile issued $150,000,000 of floating-rate debt through Mercantile Capital Trust I, a Delaware statutory business trust (the "Capital Trust"). For regulatory purposes, such debt is considered Tier I capital. Proceeds of this transaction are expected to be utilized for share repurchases relating to the Roosevelt transaction as well as for general corporate purposes. On March 5, 1997, Mercantile completed the acquisition of Regional Bancshares, Inc. ("Regional"), an Illinois corporation and a bank holding company. The acquisition was accounted for under the purchase method of accounting. As of March 5, 1997, Regional reported, on a consolidated basis, total assets of $181.4 million, total deposits of $146.8 million and shareholders' equity of $25.0 million. On April 25, 1997, Mercantile completed the acquisition of Mark Twain Bancshares, Inc. ("Mark Twain"), a Missouri corporation and bank holding company. This acquisition was accounted for under the pooling-of-interests method of accounting. As of March 31, 1997, Mark Twain reported, on a consolidated basis, total assets of $3.2 billion, total deposits of $2.5 billion and shareholders' equity of $320.4 million. In connection with the acquisition of Mark Twain, Mercantile restated its consolidated financial statements as of and for the years ended December 31, 1996, 1995 and 1994 and as of and for the three months ended March 31, 1997 and 1996. Mercantile filed supplemental financial statements as of and for the years ended December 31, 1996, 1995 and 1994 and as of and for the three months ended March 31, 1997 and 1996 in a Current Report on Form 8-K dated May 13, 1997, which has been incorporated by reference into this Prospectus. RATIO OF EARNINGS TO FIXED CHARGES
THREE MONTHS ENDED YEAR ENDED DECEMBER 31, MARCH 31, ---------------------------- 1997 1996 1995 1994 1993 1992 ------------------ ---- ---- ---- ---- ---- Ratio of Earnings to Fixed Charges(1) Excluding Interest on Deposits.................. 4.00x 3.75x 3.88x 4.70x 5.40x 4.27x Including Interest on Deposits.................. 1.62x 1.51x 1.59x 1.69x 1.60x 1.39x
- -------- (1) For purposes of calculating the ratio of earnings to fixed charges, earnings consist of earnings before income taxes plus interest and one- third of rental expense. Fixed charges, excluding interest on deposits, consists of interest on indebtedness and one-third of rental expense (which is deemed representative of the interest factor). Fixed charges, including interest on deposits, consists of the foregoing items plus interest on deposits. USE OF PROCEEDS Mercantile intends to use the net proceeds from the sale of the Debt Securities to fund the proposed acquisition of Roosevelt, including the repurchase of shares to be reissued in connection therewith, and the balance, if any, for general corporate purposes, including, without limitation, the reduction of indebtedness, investments in and advances to subsidiaries and possible future acquisitions of bank and non-bank subsidiaries. Although Mercantile from time to time evaluates potential acquisitions, it currently has no understandings, commitments or agreements with respect to any acquisitions, except with respect to Roosevelt. See "Recent Developments." Pending such application, the net proceeds will be invested in short-term investment grade obligations. -5- DESCRIPTION OF DEBT SECURITIES The Debt Securities will consist of either Senior Debt Securities or Subordinated Debt Securities. The Senior Debt Securities will be issued under a senior indenture (the "Senior Indenture") and the Subordinated Debt Securities will be issued under a subordinated indenture (the "Subordinated Indenture"). The Senior Indenture and the Subordinated Indenture collectively are referred to as the "Indentures" and the trustee under the Senior Indenture (the "Senior Trustee") and the trustee under the Subordinated Indenture (the "Subordinated Trustee") sometimes are referred to as the "Trustee". The following description of Debt Securities relates to Debt Securities to be issued in connection with either a United States Offering or an International Offering, except, in the case of an International Offering, as otherwise specified in the Prospectus Supplement relating thereto. The trustee for a particular series of Debt Securities will be identified in the Prospectus Supplement for such series, and all references to "Trustee" shall be deemed to mean the trustee so identified. No Trustee shall be responsible for the acts, obligations, liabilities or responsibilities of any other trustee. The following summaries of certain provisions of the Indentures do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Indentures, including the definitions therein of certain terms. Wherever particular sections or defined terms of the Indentures are referred to, it is intended that such sections or definitions shall be incorporated herein by reference. The following sets forth certain terms and provisions of the Debt Securities to which any Prospectus Supplement may relate. The particular terms of the Debt Securities offered by any Prospectus Supplement (the "Offered Securities") and the extent, if any, to which such general provisions may apply to the Debt Securities so offered, will be described in the Prospectus Supplement relating to such Offered Securities. GENERAL The Indentures do not limit the aggregate principal amount of Debt Securities that may be issued thereunder and provide that Debt Securities may be issued from time to time in one or more series. The Debt Securities will be unsecured obligations of Mercantile. Neither the Indentures nor the Debt Securities will limit or otherwise restrict the amount of other indebtedness that may be incurred or other securities that may be issued by Mercantile or any of its subsidiaries. Reference is made to the Prospectus Supplement relating to the particular series of Offered Securities for the following terms of such Offered Securities: (1) the title; (2) any limit on the aggregate principal amount; (3) whether such Offered Securities are Senior Debt Securities or Subordinated Debt Securities; (4) the price or prices (expressed as a percentage of the aggregate principal amount thereof) at which such Offered Securities will be issued; (5) the date or dates on which such Offered Securities will mature; (6) the rate or rates (which may be fixed or floating) per year at which such Offered Securities will bear interest, if any, or the method of determining the same; (7) the date from which such interest, if any, on such Offered Securities will accrue, the dates on which such interest, if any, will be payable, the date on which payment of such interest, if any, will commence and the Regular Record Dates for such Interest Payment Dates, if any; (8) the extent to which any of such Offered Securities will be issuable in the form of one or more temporary or permanent Global Securities, and, if so, the identity of the depository for such Global Securities, or the manner in which any interest payable on temporary or permanent Global Securities will be paid; (9) the dates, if any, on which, and the price or prices at which, such Offered Securities will, pursuant to any mandatory sinking fund provisions, or may, pursuant to any optional sinking fund or to any purchase fund provisions, be redeemed by Mercantile, and the other detailed terms and provisions of such sinking and/or purchase funds; (10) the date, if any, after which, and the price or prices at which, such Offered Securities may, pursuant to any optional redemption provisions, be redeemed at the option of Mercantile or of the holder thereof and the other detailed terms and provisions of such optional redemption; (11) the denomination or denominations in which such Offered Securities are authorized to be issued; (12) whether such Offered Securities will be issued as Registered Securities, Bearer Securities or both and any limitations on the issuance of such Bearer Securities (including exchange for Registered Securities of -6- the same series); (13) information with respect to book-entry procedures; (14) each office or agency where, subject to the terms of the applicable Indenture, such Offered Securities may be presented for registration of transfer or exchange; and (15) any other terms of such Offered Securities (which will not be inconsistent with the provisions of the applicable Indenture). Debt Securities may be issued as Original Issue Discount Securities to be sold at a substantial discount below their principal amount. Any special considerations relating thereto will be described in the applicable Prospectus Supplement. The Debt Securities may be issuable as Registered Securities, Bearer Securities or both. Unless otherwise indicated in the applicable Prospectus Supplement, each series of Debt Securities will be issued as Registered Securities. Debt Securities issued as Bearer Securities shall have interest coupons attached, unless issued as zero coupon securities. Unless otherwise indicated in the applicable Prospectus Supplement, Registered Securities will be issued only in denominations of $1,000 or integral multiples thereof and Bearer Securities will be issued only in denominations of $5,000 or integral multiples thereof. Bearer Securities shall not be offered, sold, resold or delivered in connection with their original issuance in the United States or to any United States person (as defined below) other than to offices located outside the United States of certain United States financial institutions. "United States person" means any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States, any estate the income of which is subject to United States federal income taxation regardless of its source, or a trust if (i) a United States court is able to exercise primary supervision over the trust's administration and (ii) one of more United States fiduciaries have the authority to control all the trust's substantial decisions, and "United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. Purchasers of Bearer Securities will be subject to certification procedures and may be affected by certain limitations under United States tax laws. Such procedures and limitations will be described in the Prospectus Supplement relating to the offering of the Bearer Securities. The applicable Prospectus Supplement will include a description of the requirements for certification of ownership by non-United States persons that will apply prior to (1) the issuance of Bearer Securities or (2) the payment of interest that occurs prior to the issuance of Bearer Securities. Unless otherwise indicated in the applicable Prospectus Supplement, Registered Securities of any series (other than a Global Security (as defined in the Indentures), except as set forth below) will be exchangeable into an equal aggregate principal amount of Registered Securities of the same series, tenor and terms of different authorized denominations and Bearer Securities may be exchanged for Registered Securities on the terms set forth in the applicable Prospectus Supplement. In no event will Registered Securities be exchangeable for Bearer Securities. Unless otherwise indicated in the applicable Prospectus Supplement, Debt Securities may be presented for exchange, and Registered Securities (other than a Global Security) may be presented for registration of transfer, at the offices of the appropriate Trustee. No service charge will be made for any registration of transfer or exchange of the Debt Securities but Mercantile may require payment sufficient to cover any tax or other governmental charge payable in connection therewith. PAYMENT AND PAYING AGENT Unless otherwise indicated in the applicable Prospectus Supplement, payment of principal of and any premium and interest on Registered Securities will be made at the office of the appropriate Trustee, except that, at the option of Mercantile, interest may be paid by mailing a check to the address of the person entitled thereto -7- as it appears on the Security Register (as defined in the Indentures) (Section 3.02 of the Senior Indenture; Section 4.02 of the Subordinated Indenture). Paying Agents (as defined in the Indentures) will be named in the Prospectus Supplement and may be terminated at any time. Unless otherwise indicated in the applicable Prospectus Supplement, payment of principal of and any premium and interest on Bearer Securities will be made, subject to applicable laws and regulations, at such paying agencies outside the United States as Mercantile may designate from time to time. Any such payment may be made, at the option of the holder, by check or by transfer to an account maintained by the payee with a bank located outside the United States. Unless otherwise indicated in the applicable Prospectus Supplement, payment of interest on Bearer Securities will be made only against surrender of the coupon relating to the relevant Interest Payment Date (as defined in the Indentures). No payment with respect to any Bearer Security will be made at any office or agency of Mercantile in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States. GLOBAL SECURITIES The Debt Securities of a series may be issued in whole or in part in the form of one or more Global Securities that will be deposited with, or on behalf of, a depository (the "Depository") identified in the Prospectus Supplement relating to such series. Global Securities may be issued in either registered or bearer form and in either temporary or permanent form. Unless and until it is exchanged in whole or in part for the individual certificates evidencing the Debt Securities represented thereby, a Global Security may not be transferred except as a whole by the Depository for such Global Security to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a successor of such Depository or a nominee of such successor. The specific terms of the depository arrangement with respect to a series of Debt Securities will be described in the Prospectus Supplement relating to such series. Mercantile anticipates that the following provisions will apply to all depository arrangements although no assurance can be given that such will be the case. Upon the issuance of a Global Security, the Depository for such Global Security or its nominee will credit, on its book-entry registration and transfer system, the respective principal amounts of the Debt Securities represented by such Global Security to the accounts of institutions that have accounts with such Depository ("participants"). The accounts to be credited shall be designated by the underwriters or agents of such Debt Securities or by Mercantile if such Debt Securities are offered and sold directly by Mercantile. Ownership of beneficial interests in a Global Security will be limited to participants or persons that may hold interests through participants. Ownership of such beneficial interests will be shown on, and the transfer of that ownership will be effected only through, records maintained by the Depository or its nominee for such Global Security (with respect to interests of participants) and the records of participants (with respect to interests of persons other than participants). The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to transfer beneficial interests in a Global Security. So long as the Depository for a Global Security, or its nominee, is the owner of such Global Security, such Depository or such nominee, as the case may be, will be considered the sole owner or holder of the Debt Securities represented by such Global Security for all purposes under the Indenture governing such Debt Securities. Except as set forth below, owners of beneficial interests in a Global Security registered in their names will not receive or be entitled to receive physical delivery of Debt Securities of such series in definitive form and will not be considered the owners or holders thereof under the Indenture governing such Debt Securities. Payments of principal of and any premium and interest on Debt Securities registered in the name of or held by a Depository or its nominee will be made to the Depository or its nominee, as the case may be, as the registered owner or the holder of the Global Security representing such Debt Securities. None of Mercantile, the Trustee for such Debt Securities or any Paying Agent or the Security Registrar for such Debt Securities will -8- have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security for such Debt Securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Mercantile expects that the Depository for Debt Securities of a series, upon receipt of any payment of principal, premium or interest in respect of a permanent Global Security, immediately will credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such Global Security as shown on the records of such Depository or its nominee. Mercantile also expects that payments by participants to owners of beneficial interests in such Global Security held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in street name, and will be the responsibility of such participants. If the Depository for a series of Debt Securities is at any time unwilling, unable or ineligible to continue as Depository and a successor Depository is not appointed by Mercantile within 90 days, Mercantile will issue Debt Securities of such series in definitive form in exchange for the Global Security or Securities representing the Debt Securities of such series. In addition, Mercantile at any time and in its sole discretion, subject to any limitations described in the Prospectus Supplement relating to such Debt Securities, may determine not to have any Debt Securities of a series represented by one or more Global Securities and, in such event, will issue Debt Securities of such series in definitive form in exchange for the Global Security or Securities representing such Debt Securities. Further, if Mercantile so specifies with respect to the Debt Securities of a series, an owner of a beneficial interest in a Global Security representing Debt Securities of such series may receive, on terms acceptable to Mercantile and the Depository for such Global Security, Debt Securities of such series in definitive form in exchange for such beneficial interest, subject to any limitations described in the Prospectus Supplement relating to such Debt Securities. In any such instance, an owner of a beneficial interest in a Global Security will be entitled to physical delivery in definitive form of Debt Securities of the series represented by such Global Security equal in principal amount to such beneficial interest and to have such Debt Securities registered in its name (if the Debt Securities of such series are issuable as Registered Securities). Debt Securities of such series so issued in definitive form will be issued (a) as Registered Securities in denominations, unless otherwise specified by Mercantile, of $1,000 or integral multiples thereof if the Debt Securities of such series are issuable as Registered Securities, (b) as Bearer Securities in denominations, unless otherwise specified by Mercantile, of $5,000 or integral multiples thereof if the Debt Securities of such series are issuable as Bearer Securities or (c) as either Registered or Bearer Securities, if the Debt Securities of such series are issuable in either form. CERTAIN COVENANTS OF MERCANTILE Restrictions on Certain Dispositions of Voting Stock and Assets. Except as described below under "Consolidation, Merger and Sale of Assets," the Senior Indenture prohibits the sale or other disposition by Mercantile or any Principal Constituent Bank (as defined below) of shares of, or securities convertible into or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of a Principal Constituent Bank, the merger or consolidation of any Principal Constituent Bank with any other corporation (other than Mercantile or a Controlled Subsidiary), and the lease, sale or other disposition of all or substantially all the assets of any Principal Constituent Bank if, after giving effect to the transaction and to the issuance of Voting Stock issuable to Persons other than Mercantile or any Controlled Subsidiary (as defined below) upon the conversion or exercise of all such convertible securities, options, warrants or rights, Mercantile would no longer own (directly or indirectly) more than 80% of the shares of voting stock of such Principal Constituent Bank or its successor. Neither Indenture, however, prohibits any such sale or disposition of shares or securities, any such merger or consolidation or any such lease, sale or disposition of assets (i) if required by law or (ii) as a condition imposed by law to the acquisition by Mercantile or any Controlled Subsidiary, directly or indirectly, of any other corporation or entity if, thereafter, (a) Mercantile and/or its Controlled Subsidiaries would own more than 80% of the Voting Stock of such other corporation or entity (after giving effect to any potential dilution from exercise or conversion of securities owned by parties other than Mercantile and its Controlled Subsidiaries), (b) the -9- Consolidated Net Banking Assets of Mercantile would not be decreased and (c) Mercantile would still own more than 80% of the voting stock of such Principal Constituent Bank (Section 3.06 of the Senior Indenture). "Principal Constituent Bank" means Mercantile Bank and any other Subsidiary of Mercantile that is a bank, including savings associations and other United States depository institutions, the total assets of which equal more than 20% of the total assets of all Subsidiaries of Mercantile that are banks (Section 1.01). As of the date of this Prospectus, Mercantile's only Principal Constituent Bank was Mercantile Bank. "Controlled Subsidiary" means any Subsidiary of which more than 80% of the aggregate voting power of the outstanding shares of the Voting Stock is at the time owned directly or indirectly by Mercantile or by one or more Controlled Subsidiaries or by Mercantile and one or more Controlled Subsidiaries, after giving effect to the issuance to any Person other than Mercantile or any Controlled Subsidiary of Voting Stock of the Subsidiary issuable on exercise of options, warrants or rights to subscribe for such Voting Stock or on conversion of securities convertible into such Voting Stock. Restrictions on Liens. The Senior Indenture provides that Mercantile will not create, assume, incur or suffer to exist any pledge, encumbrance or lien, as security for indebtedness for borrowed money, upon any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of any Principal Constituent Bank owned by Mercantile, directly or indirectly, if, treating the pledge, encumbrance or lien as a transfer to the secured party, and after giving effect to any potential dilution referred to above, Mercantile would no longer own (directly or indirectly) more than 80% of the shares of Voting Stock of such Principal Constituent Bank (Section 3.07 of the Senior Indenture). The Subordinated Indenture does not contain a similar provision. MODIFICATION OF THE INDENTURES; WAIVER OF COVENANTS Each Indenture contains provisions permitting Mercantile and the Trustee to modify the Indenture with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding Debt Securities of each series affected thereby, except that, without the consent of the holder of each Debt Security affected thereby, no such modification may, among other things: (a) change the stated maturity date of the principal of, or any installment of principal or interest on, any Outstanding Security; (b) reduce the principal amount of, or any premium or interest on, any Outstanding Security; (c) reduce the amount of principal of an Original Issue Discount Security payable upon acceleration of the maturity thereof; (d) change the place of payment of principal of, or any premium or interest on, any Outstanding Security; (e) impair the right to institute suit for the enforcement of any payment on or with respect to any Outstanding Security; (f) reduce the percentage in principal amount of Outstanding Securities of any series the consent of whose holders is required for modification or amendment of the Indenture or for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults; or (g) in the case of the Subordinated Indenture, make any change in the subordination provisions that adversely affects the rights of any holder of Subordinated Debt Securities. Prior to any acceleration of the Debt Securities of any series, the holders of a majority in aggregate principal amount of the outstanding Debt Securities of such series may waive any past default or Event of Default under the applicable Indenture, except a default under a covenant that cannot be modified without the consent of each holder of a Debt Security of the series affected thereby (Section 4.07(b) of the Senior Indenture; Section 5.07(b) of the Subordinated Indenture). In addition, the holders of a majority in aggregate principal amount of the outstanding Debt Securities of any series may rescind a declaration of acceleration of the Debt Securities of any series before any judgment has been obtained if (i) Mercantile pays the Trustee certain amounts due to the Trustee plus all matured installments of principal of and any premium and interest on the Debt Securities of such series (other than installments due by acceleration) and interest on the overdue installments to the extent provided in the applicable Indenture and (ii) all other defaults with respect to Debt Securities of that series under the applicable Indenture have been cured or waived (Section 4.01 of the Senior Indenture; Section 5.01 of the Subordinated Indenture). CONSOLIDATION, MERGER AND SALE OF ASSETS Each Indenture provides that Mercantile may not consolidate with or merge into, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person unless: (a) the successor is organized under -10- the laws of any domestic jurisdiction and assumes Mercantile's obligations on the Debt Securities and under the applicable Indenture; (b) after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time, would become an Event of Default, has occurred and is continuing; and (c) certain other conditions are met (Section 9.01 of the Senior Indenture; Section 10.01 of the Subordinated Indenture). In that event, the successor will be substituted for Mercantile and except in the case of a lease, Mercantile will be relieved of its obligations under the applicable Indenture and the Debt Securities of each series (Section 9.02 of the Senior Indenture; Section 10.02 of the Subordinated Indenture). THE TRUSTEE Mercantile will have no material relationship with the Trustee other than as Trustee. Mercantile Bank may transact business with the Trustee in the ordinary course. The Indenture, under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), is deemed to contain certain limitations on the right of the Trustee, as a creditor of Mercantile, to obtain payment of claims in certain cases or to realize on certain property received in respect of any such claim, as security or otherwise. The Trustee will be permitted to engage in transactions with Mercantile. The occurrence of a default under either Indenture with respect to Subordinated Debt Securities or Senior Debt Securities could create a conflicting interest for the Trustee under the Trust Indenture Act. If the default has not been cured or waived within 90 days after the Trustee has or acquires a conflicting interest, the Trustee generally is required by the Trust Indenture Act to eliminate such conflicting interest or resign as Trustee with respect to the Subordinated Debt Securities or the Senior Debt Securities. In the event of the Trustee's resignation, Mercantile shall promptly appoint a successor trustee with respect to the affected securities. INTERNATIONAL OFFERING If specified in the applicable Prospectus Supplement, Mercantile may issue Offered Securities in an International Offering. Such Offered Securities may be issued as Bearer Securities, Registered Securities or both and will be described in the applicable Prospectus Supplement. In connection with any such International Offering, Mercantile will designate paying agents, registrars or other agents with respect to the Offered Securities as specified in the applicable Prospectus Supplement. Offered Securities issued in an International Offering may be subject to certain selling restrictions which will be described in the applicable Prospectus Supplement. Such Offered Securities may be listed on one or more foreign stock exchanges as described in the applicable Prospectus Supplement. Special United States tax and other considerations, if any, applicable to an International Offering will be described in the applicable Prospectus Supplement. SENIOR DEBT SECURITIES The Senior Debt Securities will be direct, unsecured obligations of Mercantile and will rank equally and ratably with all outstanding unsecured and unsubordinated indebtedness of Mercantile. EVENTS OF DEFAULT The Senior Indenture defines an Event of Default with respect to any particular series of Senior Debt Securities as being any one of the following events unless it is either inapplicable to a particular series or specifically deleted or modified for the Senior Debt Securities of such series: (a) default for 30 days in the payment of any interest upon any of the Senior Debt Securities of that series; (b) default in the payment of the principal or any premium on any of the Senior Debt Securities of that series when due; (c) default in the payment of any sinking fund installment or analogous obligation with respect to any of the Senior Debt Securities of that -11- series when due; (d) a default or event of default under any instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness of Mercantile (other than the Senior Debt Securities of such series or indebtedness to a Subsidiary) or any Subsidiary (other than indebtedness of any Subsidiary owing to Mercantile or to another Subsidiary) shall happen and not less than $20,000,000 of such indebtedness shall be past due, or become due by acceleration, and such indebtedness or acceleration is not discharged or rescinded within 30 days after notice by the Senior Trustee or holders of at least 25% in aggregate principal amount of the outstanding Senior Debt Securities of that series (calculated in accordance with the formula set forth in such series in the case of a series of Senior Debt Securities issued at an Original Issue Discount (as defined in the Senior Indenture)); (e) final judgment(s) or order(s) for the payment of money in excess of $20,000,000 is entered against Mercantile or a Principal Constituent Bank and within 90 days of entry is not discharged or the execution thereof is not stayed pending appeal, or within 90 days after the expiration of the stay the judgment(s) or order(s) is not discharged; (f) default in the observance or performance of any other covenant in the Senior Debt Securities of such series or the Senior Indenture for 90 days after notice by the Senior Trustee or holders of at least 25% in aggregate principal amount of the outstanding Senior Debt Securities of the series (calculated in accordance with the formula set forth in such series in the case of a series of Senior Debt Securities issued at an Original Issue Discount); or (g) certain events of bankruptcy, insolvency or reorganization of Mercantile or a Principal Constituent Bank (Section 4.01). In case an Event of Default with respect to the Senior Debt Securities of any series shall occur and be continuing, the Senior Trustee or the holders of not less than 25% in aggregate principal amount (in the case of a series of Senior Debt Securities issued at an Original Issue Discount, calculated in accordance with the formula set forth in such series) of all the outstanding Senior Debt Securities of such series may declare the principal (or in the case of a series of Senior Debt Securities issued at an Original Issue Discount, the amount calculated in accordance with the formula set forth in such series of Senior Debt Securities) of all the Securities of such series to be due and payable (Section 4.01). The Senior Indenture provides that the Senior Trustee, within 90 days after the occurrence of a default with respect to Senior Debt Securities of any series under the Senior Indenture, shall mail to the holders of the Senior Debt Securities of such series notice of all uncured defaults known to it that have not been waived (the term defaults to include events specified above which, after notice or lapse of time or both would become an Event of Default); provided that, except in the case of default in the payment of principal of or any premium or interest on any of the Senior Debt Securities of that series or in the making of any sinking fund payment with respect to the Senior Debt Securities of such series, the Senior Trustee may withhold such notice if it in good faith determines that withholding such notice is in the interest of the holders of the Securities of that series (Section 4.08). Subject to the provisions of the Senior Indenture relating to the duties of the Senior Trustee in case an Event of Default shall occur and be continuing, the Senior Trustee is under no obligation to exercise any of the rights or powers under the Senior Indenture at the request, order or direction of any of the holders of the Senior Debt Securities, unless such holders offer to the Senior Trustee reasonable security or indemnity (Section 5.02(d)). Subject to certain limitations contained in the Senior Indenture (including among other limitations that the Senior Trustee will not be exposed to personal liability), the holders of a majority in aggregate principal amount of the outstanding Senior Debt Securities of all series affected (voting as one class) have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Senior Trustee, or exercising any trust or power conferred on the Senior Trustee (Section 4.07). No holder of any Senior Debt Security of any series will have any right to institute any proceeding with respect to the Senior Indenture or for any remedy thereunder, unless such holder previously shall have given to the Senior Trustee written notice of a continuing Event of Default with respect to Senior Debt Securities of that series and unless also the holders of not less than 25% in aggregate principal amount (in the case of a series of Senior Debt Securities issued at an Original Issue Discount, calculated in accordance with the formula set forth in such series) of the outstanding Senior Debt Securities of that series shall have made written request, and offered reasonable indemnity, to the Senior Trustee to institute such proceeding as Senior Trustee, and the Senior Trustee shall not have received from the holders of a majority in principal amount of the outstanding Senior -12- Debt Securities of that series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days (Section 4.04). However, the holder of any Senior Debt Security will have an absolute right to receive payment of the principal of and any premium and interest if any, on such Senior Debt Security on or after the due dates expressed in such Senior Debt Security and to institute suit for the enforcement of any such payment (Section 4.04). Mercantile is obligated to furnish annually to the Senior Trustee a statement as to the performance by Mercantile of its obligations under the Senior Indenture and as to any default in such obligations (Section 3.04). DEFEASANCE Mercantile may terminate certain of its obligations under the Senior Indenture with respect to the Senior Debt Securities of any series on the terms and subject to the conditions contained in the Senior Indenture, by (a) depositing irrevocably with the Senior Trustee as trust funds in trust (i) U.S. dollars or U.S. Government Obligations (as defined below) in an amount which through the payment of interest, principal or premium, if any, in respect thereof in accordance with their terms will provide (without any reinvestment of such interest, principal or premium), not later than one business day before the due date of any payment, money sufficient to pay the principal of and any premium and interest on the Senior Debt Securities of such series as such are due or (ii) a combination of money and U.S. Government Obligations sufficient to pay the principal of and any premium and interest on the Senior Debt Securities of such series as such are due and (b) satisfying certain other conditions precedent specified in the Senior Indenture. Such deposit and termination is conditioned among other things upon Mercantile's delivery of an opinion of independent counsel that the holders of the Senior Debt Securities of such series will have no federal income tax consequences as a result of such deposit and termination. Such termination will not relieve Mercantile of its obligation to pay when due the principal of and premium and interest on the Senior Debt Securities of such series if the Senior Debt Securities of such series are not paid from the money or U.S. Government Obligations held by the Senior Trustee for payment thereof (Section 13.05). "U.S. Government Obligations" means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, under clauses (i) or (ii) are not callable or redeemable at the option of the issuer thereof. SUBORDINATED DEBT SECURITIES The Subordinated Debt Securities will be direct, unsecured obligations of Mercantile and will rank equally and ratably with all outstanding subordinated indebtedness of Mercantile and will rank superior in right of payment to Mercantile's Floating Rate Junior Subordinated Deferrable Interest Debentures due 2027. SUBORDINATION The obligation of Mercantile to make any payment of principal, premium or interest on the Subordinated Debt Securities, to the extent set forth in the Subordinated Indenture, will be subordinated in right of payment to the prior payment in full of all existing and future Senior Indebtedness (as defined below). Upon any distribution of assets of Mercantile in any dissolution, winding up, liquidation or reorganization of Mercantile, the holders of Senior Indebtedness are entitled to receive payment in full of principal and any premium and interest before the holders of the Subordinated Debt Securities are entitled to receive any payment on account of the principal of and any premium or interest on the Subordinated Debt Securities, except holders of the Subordinated Debt Securities, in a reorganization or readjustment of Mercantile, may receive securities of Mercantile or any other corporation subordinated to both Senior Indebtedness and any securities received in the reorganization or readjustment by holders of Senior Indebtedness (except to the extent that any securities so received are by their terms expressly not superior in right of payment to the Subordinated Debt Securities) (Section 3.03). The -13- dissolution, winding up, liquidation or reorganization of Mercantile following a conveyance, transfer or lease of its properties and assets substantially as an entirety in compliance with the terms described above under "Description of Debt Securities--Consolidation, Merger and Sale of Assets" will not be deemed to be a dissolution, winding up, liquidation or reorganization for this purpose (Section 3.03(d)). In addition, Mercantile may not pay principal of and any premium or interest on the Subordinated Debt Securities and may not acquire any Subordinated Debt Securities for cash or property other than capital stock of Mercantile if: (1) a default on Senior Indebtedness occurs and is continuing that permits holders of such Senior Indebtedness to accelerate its maturity; and (2) such default is the subject of judicial proceedings or Mercantile receives written notice of such default from a representative of all holders of such Senior Indebtedness. If Mercantile receives any such notice, a similar notice received within 360 days thereafter relating to the same default on the same issue of Senior Indebtedness shall not be effective for such purpose. Mercantile may resume payments on the Subordinated Debt Securities and may acquire them when: (i) such default is cured or waived or shall have ceased to exist or the Senior Indebtedness to which such default relates shall have been paid in full in cash or cash equivalent; or (ii) if such default is not the subject of judicial proceedings, 120 days pass after such written notice is received by Mercantile (Section 3.02(b)). By reason of this subordination, holders of Senior Indebtedness may receive more, ratably, and holders of the Subordinated Debt Securities may receive less, ratably, than other creditors of Mercantile in the event of Mercantile's insolvency. However, such subordination will not prevent the occurrence of any Event of Default (Section 3.12). The Subordinated Indenture does not restrict the incurrence of additional Senior Indebtedness. "Senior Indebtedness" means the principal of and any premium and interest on the following, whenever incurred: (a) indebtedness of Mercantile for money borrowed by Mercantile (including purchase money obligations with an original maturity in excess of one year) or evidenced by debentures, notes or other corporate debt securities or similar instruments issued by Mercantile (other than the Subordinated Debt Securities); (b) indebtedness or obligations of Mercantile as lessee under any leases of real or personal property required to be capitalized under generally accepted accounting principles at the time; (c) indebtedness or obligations incurred or assumed by Mercantile in connection with the acquisition by Mercantile or any Subsidiary of any property, including any business; (d) obligations under any agreement in respect of any interest rate or currency swap, interest rate cap, floor or collar, interest rate future, currency exchange or forward currency transaction that relates to Senior Indebtedness; (e) indebtedness or obligations of Mercantile constituting a guarantee of indebtedness or of obligations of others of the type referred to in the preceding clauses; or (f) renewals, extensions or refundings of any of the indebtedness or obligations referred to in the preceding clauses; except Senior Indebtedness does not include any particular indebtedness or obligation, renewal, extension or refunding if the express provisions of the instrument creating or evidencing the same, or pursuant to which the same is outstanding, provide that it is not superior in right of payment to the Subordinated Debt Securities, and provided further that the Subordinated Debt Securities are senior in right of payment to Mercantile's Floating Rate Junior Subordinated Deferrable Interest Debentures due 2027 (Section 1.01). LIMITED RIGHTS OF ACCELERATION Unless otherwise specified in the Prospectus Supplement relating to any series of Subordinated Debt Securities, payment of principal of the Subordinated Debt Securities may be accelerated only in the case of an "Acceleration Event" which is defined in the Indenture as any of the bankruptcy, insolvency or reorganization events with respect to Mercantile or a Principal Constituent Bank that constitute an Event of Default (as defined below). There is no right of acceleration in the case of a default in the payment of principal of or any premium or interest on the Subordinated Debt Securities or the performance of any other covenant of Mercantile in the Subordinated Indenture. -14- EVENTS OF DEFAULT The Subordinated Indenture defines an Event of Default with respect to any particular series of Subordinated Debt Securities as being any one of the following events unless it is either inapplicable to a particular series or specifically deleted or modified for the Subordinated Debt Securities of such series: (a) default for 30 days in the payment of any interest on any of the Subordinated Debt Securities of that series; (b) default in the payment of the principal or any premium on any of the Subordinated Debt Securities of that series when due; (c) default in the payment of any sinking fund installment or analogous obligation with respect to that series when due; (d) default in the observance or performance of any other covenant or agreement in the Subordinated Debt Securities of such series or the Subordinated Indenture for 90 days after notice by the Trustee or holders of at least 25% in aggregate principal amount (in the case of a series of Subordinated Debt Securities issued at an Original Issue Discount, calculated in accordance with the formula set forth in such series, of the outstanding Subordinated Debt Securities of the series); or (e) certain events of bankruptcy, insolvency or reorganization of Mercantile or a Principal Constituent Bank (Section 5.01). Rights of acceleration in case an Event of Default occurs are limited. See "Limited Rights of Acceleration." In case an Acceleration Event shall have occurred and be continuing, the Subordinated Trustee or the holders of not less than 25% in aggregate principal amount (in the case of a series of Subordinated Debt Securities issued at an Original Issue Discount, calculated in accordance with the formula set forth in such series) of the outstanding Subordinated Debt Securities of such series may declare the principal (or, in the case of a series of Subordinated Debt Securities issued at an Original Issue Discount, the amount calculated in accordance with the formulas set forth in such series of Subordinated Debt Securities) of all the Subordinated Debt Securities of such series to be due and payable (Section 5.01). The Subordinated Indenture provides that the Subordinated Trustee within 90 days after the occurrence of a default with respect to Subordinated Debt Securities of any series under the Subordinated Indenture, shall mail to the holders of the Subordinated Debt Securities of such series notice of all uncured defaults known to it that have not been waived (the term defaults to include events specified above which, after notice or lapse of time or both, would become an Event of Default); provided that, except in the case of default in the payment of principal of or any premium or interest on any of the Subordinated Debt Securities of that series or in the making of any sinking fund payment with respect to the Subordinated Debt Securities of such series, the Subordinated Trustee may withhold such notice if it in good faith determines that withholding such notice is in the interest of the holders of the Subordinated Debt Securities of that series (Section 5.08). Subject to the provisions of the Subordinated Indenture relating to the duties of the Subordinated Trustee in case an Event of Default shall occur and be continuing, the Subordinated Trustee is under no obligation to exercise any of the rights or powers under the Subordinated Indenture at the request, order or direction of any of the holders of the Subordinated Debt Securities, unless such holder offers to the Subordinated Trustee reasonable security or indemnity (Section 6.02(d)). Subject to certain limitations contained in the Subordinated Indenture (including among other limitations that the Subordinated Trustee will not be exposed to personal liability), the holders of a majority in aggregate principal amount of the outstanding Subordinated Debt Securities of all series affected (voting as one class) have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Subordinated Trustee, or exercising any trust or power conferred on the Subordinated Trustee (Section 5.07). No holder of any Subordinated Security of any series will have any right to institute any proceeding with respect to the Subordinated Indenture or for any remedy thereunder unless such holder previously shall have given to the Subordinated Trustee written notice of a continuing Event of Default with respect to Subordinated Debt Securities of that series and unless also the holders of not less than 25% in aggregate principal amount (in the case of a series of Subordinated Debt Securities issued at an Original Issue Discount, calculated in accordance with the formula set forth in such series) of the outstanding Subordinated Debt Securities of that series shall have made written request, and offered reasonable indemnity, to the Subordinated Trustee to institute such proceeding as trustee, and the Subordinated Trustee shall not have received from the holders of a majority in principal amount of the outstanding Subordinated Debt Securities of that series a direction inconsistent with such -15- request and shall have failed to institute such proceeding within 60 days (Section 5.04). However, the holder of any Subordinated Security will have an absolute right to receive payment of the principal of and any premium and interest on such Subordinated Security on or after the due dates expressed in such Subordinated Security and to institute suit for the enforcement of any such payment (Section 5.04). Mercantile is obligated to furnish to the Subordinated Trustee annually a statement as to the performance by Mercantile of its obligations under the Subordinated Indenture and as to any default in such obligations (Section 4.04). PLAN OF DISTRIBUTION Mercantile may offer and sell the Debt Securities to or through underwriters, acting as principals for their own accounts or as agents, to or through dealers and also may offer and sell Debt Securities directly to other purchasers. Any underwriters in connection with Offered Securities will be named in the related Prospectus Supplement and any underwriting discounts and other items constituting underwriters' compensation paid to such underwriters will be set forth therein. Such underwriters may include Salomon Brothers Inc acting alone or a group of underwriters represented by Salomon Brothers Inc. The Prospectus Supplement will additionally set forth the name or names of any dealers or agents, the purchase price of the Debt Securities and the proceeds to Mercantile from such sale, any delayed delivery arrangements, the initial public offering price, any discounts or concessions allowed or re-allowed or paid to dealers and any securities exchange on which the Debt Securities may be listed. The distribution of the Debt Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. Underwriters, dealers and agents that participate in the distribution of the Offered Securities may be deemed to be underwriters and any discounts, commissions or concessions received by them, as well as any profit realized on resale of the Offered Securities may be deemed to be underwriting discounts or commissions under the Securities Act. If underwriters are used in any sale, the Offered Securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The Debt Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more underwriters. Unless otherwise set forth in the applicable Prospectus Supplement, the obligations of the underwriters to purchase the Offered Securities will be subject to certain conditions precedent, the underwriters will be obligated to purchase all of such Offered Securities if any are purchased, and Mercantile will have agreed to indemnify the underwriters against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make in respect thereof. The initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. If a dealer is utilized in the sale of the Debt Securities in respect of which this Prospectus is delivered, Mercantile will sell such Debt Securities to the dealer as principal. The dealer may then resell such Debt Securities to the public at varying prices to be determined by such dealer at the time of resale. The name of the dealer and the terms of the transaction will be set forth in the Prospectus Supplement relating thereto. Debt Securities may be sold directly by Mercantile or through agents designated by Mercantile from time to time at fixed prices, which may be changed, or at varying prices determined at the time of sale. Any agent involved in the offer or sale of the Debt Securities with respect to which this Prospectus is delivered will be named, and any commissions payable by Mercantile to such agent will be set forth, in the Prospectus Supplement relating thereto. Unless otherwise indicated in the Prospectus Supplement, any such agent will be acting on a best efforts basis for the period of its appointment. -16- If so indicated in the Prospectus Supplement, Mercantile will authorize underwriters, dealers or other persons acting as Mercantile's agents to solicit offers by certain institutions to purchase Debt Securities from Mercantile pursuant to contracts providing for payment and delivery on a future date. Institutions with which such contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases such institutions must be approved by Mercantile. The obligations of any purchaser under any such contract will not be subject to any conditions except that (i) the purchase of the Offered Securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which such purchaser is subject and (ii) if the Offered Securities also are being sold to underwriters, Mercantile shall have sold to such underwriters the Offered Securities not sold for delayed delivery. The dealers and such other persons will not have any responsibility in respect of the validity or performance of such contracts. The Prospectus Supplement will set forth the commission payable for solicitation of such contracts. CERTAIN UNITED STATES FEDERAL TAX CONSEQUENCES The following is a summary of certain United States federal income and estate tax considerations relating to the purchase, ownership and disposition of Debt Securities, but does not purport to be a complete analysis of all the potential tax considerations relating thereto. This summary is based on laws, regulations, rulings and decisions now in effect, all of which are subject to change. This summary deals only with holders that will hold Debt Securities as capital assets and does not address tax considerations applicable to investors that may be subject to special tax rules, such as banks, tax exempt organizations, insurance companies, dealers in securities or currencies, persons that will hold the Debt Securities as part of an integrated investment (including a "straddle") comprised of Debt Securities and one or more other positions, persons having a "functional currency," other than the United States Dollar or holders of Debt Securities that did not acquire the Debt Securities in the initial distribution thereof at their original issue price. INVESTORS CONSIDERING THE PURCHASE OF DEBT SECURITIES SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE UNITED STATES FEDERAL INCOME TAX AND ESTATE TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING JURISDICTION, OR UNDER ANY APPLICABLE TAX TREATY. UNITED STATES HOLDERS As used herein, the term "United States Holder" means the beneficial owner of a Debt Security who or that is (i) a city or resident of the United States, (ii) a domestic corporation or (iii) otherwise subject to United States federal income taxation on a net income basis in respect of the Debt Securities. PAYMENTS OF INTEREST Payments of "qualified stated interest" (as defined below under "Original Issue Discount") on a Debt Security will be taxable to a United States Holder as ordinary income at the time that such interest is received or accrued, in accordance with such holder's method of accounting for United States federal income tax purposes. SALE, EXCHANGE OR REDEMPTION OF THE DEBT SECURITIES Except as discussed below with respect to Short-Term Debt Securities, upon the sale, exchange or redemption of a Debt Security, a United States Holder generally will recognize capital gain or loss equal to the difference between (i) the amount of cash proceeds and the fair market value of any property received on the sale, exchange or redemption (except to the extent such amount is attributable to accrued qualified stated interest) and (ii) such holder's adjusted basis in the Debt Security. A United States Holder's tax basis in a Debt Security will equal the cost of such Debt Security to such holder, increased by any amounts includible in income by the holder as original issue discount and reduced by any payments other than payments of qualified stated interest made on such Debt Security. -17- ORIGINAL ISSUE DISCOUNT United States Holders of Original Issue Discount Securities generally will be subject to the special tax accounting rules for obligations issued with original issue discount ("OID") provided by the Internal Revenue Code of 1986, as amended (the "Code"), and certain regulations promulgated thereunder (the "OID Regulations"). United States Holders of such Debt Securities should be aware that, as described in greater detail below, they generally must include OID in ordinary gross income for United States federal income tax purposes as it accrues, in advance of the receipt of cash attributable to that income. In general, each United States Holder of an Original Issue Discount Security, whether such holder uses the cash or the accrual method of tax accounting, will be required to include in ordinary income the sum of the "daily portions" of OID on the Debt Security for all days during the taxable year that the United States Holder owns the Debt Security. The daily portions of OID on an Original Issue Discount Security are determined by allocating to each day in any accrual period a ratable portion of the OID allocable to that accrual period. Accrual periods may be any length and may vary in length over the term of an Original Issue Discount Security, provided that no accrual period is longer than one year and each scheduled payment of principal or interest occurs on either the final day or the first day of an accrual period. The amount of OID on an Original Issue Discount Security allocable to each accrual period is determined by (a) multiplying the "adjusted issue price" (as defined below) of the Original Issue Discount Security at the beginning of the accrual period by the yield to maturity of such Original Issue Discount Security (appropriately adjusted to reflect the length of the accrual period) and (b) subtracting from that product the amount (if any) of qualified stated interest (as defined below) allocable to that accrual period. The yield to maturity of a Debt Security is the discount rate that causes the present value of all payments on the Debt Security as of its original issue date to equal the issue price of such Debt Security. The "adjusted issue price" of an Original Issue Discount Security at the beginning of any accrual period will generally be the sum of its issue price (generally including accrued interest, if any) and the amount of OID allocable to all prior accrual periods, reduced by the amount of all payments other than payments of qualified stated interest (if any) made with respect to such Debt Security in all prior accrual periods. The term "qualified stated interest" generally means stated interest that is unconditionally payable in cash or property (other than debt instruments of the issuer) at least annually during the entire term of an Original Issue Discount Security at a single fixed rate of interest or, subject to certain conditions, based on one or more interest indices. In the case of an Original Issue Discount Security that bears a floating rate of interest (a "Floating Rate Security"), both the "yield to maturity" and "qualified stated interest" will generally be determined for these purposes as though the Original Issue Discount Security will bear interest in all periods at a fixed rate generally equal to the rate that would be applicable to the interest payments on the Debt Security on its date of issue or, in the case of certain Floating Rate Securities, the rate that reflects the yield that is reasonably expected for the Debt Security. (Additional rules may apply if interest on a Floating Rate Security is based on more than one interest index.) As a result of this "constant-yield" method of including OID in income, the amounts includible in income by a United States Holder in respect of an Original Issue Discount Security are lesser in the early years and greater in the later years than the amounts that would be includible on a straight-line basis. A United States Holder generally may make an irrevocable election to include in its income its entire return on a Debt Security (i.e., the excess of all remaining payments to be received on the Debt Security, including payments of qualified stated interest, over the amount paid by such United States Holder for such Debt Security) under the constant-yield method described above. SHORT-TERM DEBT SECURITIES The rules set forth above will also generally apply to Debt Securities having maturities of not more than one year ("Short-Term Debt Securities"), but with certain modifications. -18- First, the OID Regulations treat none of the interest on a Short-Term Debt Security as qualified stated interest (but instead treat such interest payments as part of the Short-Term Debt Security's stated redemption price at maturity, thereby giving rise to OID). Thus, all Short-Term Debt Securities will be Original Issue Discount Securities. OID will be treated as accruing on a Short-Term Debt Security ratably, or at the election of a United States Holder, under a constant-yield method. Second, a United States Holder of a Short-Term Debt Security that uses the cash method of tax accounting and is not a bank, securities dealer, regulated investment company or common trust fund, and does not identify the Short-Term Debt Security as part of a hedging transaction, will generally not be required to include OID in income on a current basis. Such a United States Holder may not be allowed to deduct all of the interest paid or accrued on any indebtedness incurred or maintained to purchase or carry such Debt Security until the maturity of the Debt Security or its earlier disposition in a taxable transaction. In addition, such a United States Holder will be required to treat any gain realized on a sale, exchange or retirement of the Debt Security as ordinary income to the extent such gain does not exceed the OID accrued with respect to the Debt Security during the period the United States Holder held the Debt Security. Notwithstanding the foregoing, a cash-basis United States Holder of a Short-Term Debt Security may elect to accrue original issue discount into income on a current basis (in which case the limitation on the deductibility of interest described above will not apply). A United States Holder using the accrual method of tax accounting and certain cash-basis United States Holders (including banks, securities dealers, regulated investment companies and common trust funds) generally will be required to include original issue discount on a Short-Term Debt Security in income on a current basis. Certain of the Debt Securities may be subject to special redemption features. These features may affect the determination of whether a Debt Security has a maturity of not more than one year and thus is a Short-Term Debt Security. Purchasers of Debt Securities with such features should carefully examine the applicable Prospectus Supplement and should consult their own tax advisors with respect to such features. INFORMATION REPORTING AND BACKUP WITHHOLDING The Trustee or any Paying Agent, as the case may be, will be required to file information returns with the Internal Revenue Service with respect to payments made to certain United States Holders of Debt Securities. In addition, certain United States Holders may be subject to a 31 percent backup withholding tax in respect of such payments if they do not provide their taxpayer identification numbers to such Trustee or Paying Agent. Persons holding Debt Securities who are not United States Holders may be required to comply with application certification procedures to establish that they are not United States Holders in order to avoid the application of such information reporting requirements and backup withholding tax. NON-UNITED STATES HOLDERS Subject to the discussion of backup withholding below, payments of interest on the Debt Securities to, or on behalf of, any beneficial owner of a Debt Security that is not a United States Holder (a "Non-U.S. Holder") will not be subject to United States federal income or withholding taxes, provided that (i) such Non-U.S. Holder does not actually or constructively own 10 percent of more of the total combined voting power of all classes of stock of Mercantile, (ii) such Non-U.S. Holder is not a controlled foreign corporation for United States tax purposes that is related to Mercantile actually or constructively through stock ownership and (iii) the Non-U.S. Holder certifies, under penalties of perjury, that it is not a United States person and provides its name and address in compliance with applicable requirements. Any capital gain realized on the sale, exchange, redemption or other disposition of Debt Securities by a Non-U.S. Holder will not be subject to United States federal income or withholding taxes unless, in the case of an individual, such holder is present in the United States for 183 days or more in the taxable year of the sale, exchange, redemption, or other disposition or receipt and certain other conditions are met. Payments made on a Debt Security and proceeds from the sale of a Debt Security received by a Non-U.S. Holder will not be subject to a backup withholding tax of 31 percent or to information reporting requirements -19- unless, in general, the holder fails to comply with certain reporting procedures or otherwise fails to establish an exemption from such tax or reporting requirements under applicable provisions of the Code. On April 15, 1996, the Internal Revenue Service released proposed revisions (the "Proposed Regulations") to the regulations interpreting the withholding tax, information reporting and backup withholding tax rules described above. In general the Proposed Regulations would require certain Non-U.S. Holders to provide additional information in order to establish an exemption from or reduce the rate of withholding tax or backup withholding tax, and in particular would require that foreign partnerships and partners of a foreign partnership provide certain information and comply with certain certification requirements not required under existing law. The Proposed Regulations are proposed generally to be effective for payments made after December 31, 1997. It is not possible to predict whether, or in what form, the Proposed Regulations ultimately will be adopted. Debt Securities will not be subject to United States federal estate tax as a result of the death of a holder who is not a citizen or resident of the United States at the time of death, unless such holder at the time of death actually or constructively owns 10 percent or more of the combined voting power of all classes of stock of Mercantile or, at the time of such holder's death, payments of interest on such Debt Securities are effectively connected with the conduct by such holder of a trade or business in the United States. LEGAL MATTERS Certain legal matters with respect to the validity of the Debt Securities offered hereby will be passed upon for Mercantile by Thompson Coburn, St. Louis, Missouri. If the Debt Securities are distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by Cleary, Gottlieb, Steen & Hamilton, New York, New York. EXPERTS The consolidated financial statements of Mercantile as of December 31, 1996, 1995 and 1994, and for each of the years in the three-year period ended December 31, 1996, incorporated by reference in Mercantile's Annual Report on Form 10-K for the year ended December 31, 1996, and the supplemental consolidated financial statements of Mercantile as of December 31, 1996, 1995 and 1994, and for each of the years in the three-year period ended December 31, 1996, contained in Mercantile's Current Report on Form 8-K dated May 13, 1997, have been incorporated by reference herein in reliance upon the reports of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The consolidated financial statements of Roosevelt as of December 31, 1996 and 1995 and for each of the years in the three-year period ended December 31, 1996, included in Roosevelt's Annual Report on Form 10-K/A-2 for the year ended December 31, 1996, have been incorporated by reference herein in reliance upon the report of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. -20- PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF INSURANCE AND DISTRIBUTION The following table sets forth the estimated expenses in connection with the offering described in this Registration Statement: SEC Registration Fee............................................ $151,515 Legal Fees and Expenses......................................... 40,000* Accountants' Services........................................... 95,000* Trustee's Fees and Expenses..................................... 10,000* Printing Expenses............................................... 75,000* Miscellaneous................................................... 28,485* -------- Total...................................................... $400,000* ========
- -------- *Estimated. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Sections 351.355(1) and (2) of The General and Business Corporation Law of the State of Missouri provide that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of an action or suit by or in the right of the corporation, the corporation may not indemnify such persons against judgments and fines and no person shall be indemnified as to any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation, unless and only to the extent that the court in which the action or suit was brought determines upon application that such person is fairly and reasonably entitled to indemnity for proper expenses. Section 351.355(3) provides that, to the extent that a director, officer, employee or agent of the corporation has been successful in the defense of any such action, suit or proceeding or any claim, issue or matter therein, he shall be indemnified against expenses, including attorneys' fees, actually and reasonably incurred in connection with such action, suit or proceeding. Section 351.355(7) provides that a corporation may provide additional indemnification to any person indemnifiable under subsection (1) or (2), provided such additional indemnification is authorized by the corporation's articles of incorporation or an amendment thereto or by a shareholder-approved bylaw or agreement, and provided further that no person shall thereby be indemnified against conduct which was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct or which involved an accounting for profits pursuant to Section 16(b) of the Securities Exchange Act of 1934. Article 12 of the Restated Articles of Incorporation of the Registrant provides that the Registrant shall extend to its directors and executive officers the indemnification specified in subsections (1) and (2) and the additional indemnification authorized in subsection (7) and that it may extend to other officers, employees and agents such indemnification and additional indemnification. Pursuant to directors' and officers' liability insurance policies, with total annual limits of $30,000,000, the Registrant's directors and officers are insured, subject to the limits, retention, exceptions and other terms and conditions of such policy, against liability for any actual or alleged error, misstatement, misleading statement, act or omission, or neglect or breach of duty by the directors or officers of the Registrant, individually or collectively, or any matter claimed against them solely by reason of their being directors or officers of the Registrant. II-1 ITEM 16. EXHIBITS See Exhibit Index. ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-2 The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of Prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. The undersigned Registrant hereby undertakes to file an application for the purposes of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act ("Act") in accordance with the rules and regulations presented by the Commission under Section 305(b)(2) of the Act. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing a Registration Statement on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of St. Louis, State of Missouri, on May 23, 1997. MERCANTILE BANCORPORATION INC. /s/ John Q. Arnold By __________________________________ John Q. Arnold, Senior Executive Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- * Chairman of the Board, May 23, 1997 ____________________________________ President, Chief Executive Thomas H. Jacobsen Officer and Director Principal Executive Officer /s/ John Q. Arnold Senior Executive Vice May 23, 1997 ____________________________________ President and Chief John Q. Arnold Financial Officer Principal Financial Officer * Senior Vice President-- May 23, 1997 ____________________________________ Finance and Control Michael T. Normile Principal Accounting Officer * Director May 23, 1997 ____________________________________ Harry M. Cornell, Jr. * Director May 23, 1997 ____________________________________ William A. Hall * Director May 23, 1997 ____________________________________ Thomas A. Hays * Director May 23, 1997 ____________________________________ Frank Lyon, Jr. * Director May 23, 1997 ____________________________________ Edward A. Mueller * Director May 23, 1997 ____________________________________ Robert W. Murray
II-4
SIGNATURE TITLE DATE --------- ----- ---- * Director May 23, 1997 ____________________________________ Harvey Saligman * Director May 23, 1997 ____________________________________ Craig D. Schnuck * Director May 23, 1997 ____________________________________ Robert L. Stark * Director May 23, 1997 ____________________________________ Patrick T. Stokes * Director May 23, 1997 ____________________________________ John A. Wright
/s/ John Q. Arnold *By__________________________________ John Q. Arnold John Q. Arnold, by signing his name hereto, does sign this document on behalf of the persons named above, pursuant to a power of attorney duly executed by such persons and previously filed. II-5 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION PAGE ------- ----------- ---- 1.1 Form of Underwriting Agreement. 4.1 Form of Indenture Regarding Senior Debt Securities. 4.2 Form of Indenture Regarding Subordinated Debt Securities. 5.1 Opinion of Thompson Coburn regarding the legality of the securities to be registered.* 12.1 Statement Regarding Computation of Earnings to Fixed Charges. 23.1 Consent of Thompson Coburn (included in Exhibit 5.1).* 23.2 Consent of KPMG Peat Marwick LLP with regard to the use of its reports on Mercantile's financial statements. 23.3 Consent of KPMG Peat Marwick LLP with regard to the use of its report on Roosevelt's financial statements. 24.1 Power of Attorney (included on signature page).* 25.1 Statement of Eligibility of Trustee on Form T-1 (Senior Indenture). 25.2 Statement of Eligibility of Trustee on Form T-1 (Subordinated Indenture).
- -------- *Previously filed on April 24, 1997 EX-1.1 2 FORM OF UNDERWRITING AGREEMENT EXHIBIT 1.1 Mercantile Bancorporation Inc. Underwriting Agreement New York, New York To the Representatives named in Schedule I hereto of the Under- writers named in Schedule II hereto Dear Sirs: Mercantile Bancorporation Inc., a Missouri corporation (the "Company"), proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the "Representatives") are acting as representatives, the principal amount of its securities identified in Schedule I hereto (the "Securities"), to be issued under either of (a) an indenture regarding senior securities (the "Senior Indenture") dated as of __________, 1997, between the Company and Harris Trust and Savings Bank, as trustee (in such capacity, the "Senior Trustee") or (b) an indenture regarding subordinated securities (the "Subordinated Indenture") dated as of __________, 1997, between the Company and Harris Trust and Savings Bank, as trustee (in such capacity, the "Subordinated Trustee"). If the Securities are issued under the Senior Indenture, the terms "Indenture" and "Trustee" as used herein shall mean the Senior Indenture and the Senior Trustee, respectively; if the Securities are issued under the Subordinated Indenture, the terms "Indenture" and "Trustee" as used herein shall mean the Subordinated Indenture and the Subordinated Trustee, respectively; and if the term "Securities" as used herein includes both securities issued under the Senior Indenture and securities issued under the Subordinated Indenture, the term "Indenture" as used herein shall mean each of the Senior Indenture and the Subordinated Indenture, and the term "Trustee" as used herein shall mean each of the Senior Trustee and the Subordinated Trustee. If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representatives", as used herein, shall each be deemed to refer to such firm or firms. 1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1. Certain terms used in this Section 1 are defined in paragraph (c) hereof. (a) If the offering of the Securities is a Delayed Offering (as specified in Schedule I hereto), paragraph (i) below is applicable and, if the offering of the Securities is a Non-Delayed Offering (as so specified), paragraph (ii) below is applicable. (i) The Company meets the requirements for the use of Form S-3 under the Securities Act of 1933, as amended (the "Act"), and has filed with the Securities and Exchange Commission (the "Commission") a registration statement (the file number of which is set forth in Schedule I hereto) on such Form, including a basic prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, and may have used a Preliminary Final Prospectus, each of which has previously been furnished to you. Such registration statement, as so amended, has become effective. The offering of the Securities is a Delayed Offering and, although the Basic Prospectus may not include all the information with respect to the Securities and the offering thereof required by the Act and the rules thereunder to be included in the Final Prospectus, the Basic Prospectus includes all such information required by the Act and the rules thereunder to be included therein as of the Effective Date. The Company will next file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the form of prospectus included in such registration statement relating to the Securities and the offering thereof. As filed, such final prospectus supplement shall include all required information with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. (ii) The Company meets the requirements for the use of Form S-3 under the Act and has filed with the Commission a registration statement (the file number of which is set forth in Schedule I hereto) on such Form, including a basic prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, including a Preliminary Final Prospectus, each of which has previously been furnished to you. The Company will next file with the Commission either (x) a final prospectus supplement relating to the Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness of such registration statement, an amendment to such registration statement, including the form of final prospectus supplement. In the case of clause (x), the Company has included in such registration statement, as amended at the Effective Date, all information (other than Rule 430A Information) required by the Act and the rules thereunder to be included in the Final Prospectus with respect to the Securities and the offering thereof. As filed, such final prospectus supplement or such amendment and form of final prospectus supplement shall contain all 2 Rule 430A Information, together with all other such required information, with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. (b) On the Effective Date and at the Execution Time, the Registration Statement did or will, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the respective rules thereunder; on the Effective Date and at the Execution Time, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date, at the Execution Time and on the Closing Date the Indenture did or will comply in all material respects with the requirements of the Trust Indenture Act and the rules thereunder; and, on the Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto). (c) The terms which follow, when used in this Agreement, shall have the meanings indicated. The term "the Effective Date" shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Basic Prospectus" shall mean the prospectus referred to in paragraph (a) above contained in the Registration Statement at the Effective Date including, in the case of a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the 3 Securities and the offering thereof and is used prior to the filing of the Final Prospectus. "Final Prospectus" shall mean the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus or, if, in the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean the form of final prospectus relating to the Securities, including the Basic Prospectus, included in the Registration Statement at the Effective Date. "Registration Statement" shall mean the registration statement referred to in paragraph (a) above, including incorporated documents, exhibits and financial statements, as amended at the Execution Time (or, if not effective at the Execution Time, in the form in which it shall become effective) and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date (as hereinafter defined), shall also mean such registration statement as so amended. Such term shall include any Rule 430A Information deemed to be included therein at the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or regulation under the Act. "Rule 430A Information" means information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 or otherwise which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be (including, without limitation, any such document filed by Mark Twain Bancshares, Inc. ("Mark Twain") or Roosevelt Financial Group, Inc. ("Roosevelt")); and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference (including, without limitation, the filing of any such document by Mark Twain or Roosevelt). A "Non-Delayed Offering" shall mean an offering of securities which is intended to commence promptly after the effective date of a registration statement, with the result that, pursuant to Rules 415 and 430A, all information (other than Rule 430A Information) with respect to the securities so offered must be included in such registration statement at the effective date thereof. A "Delayed Offering" shall mean an offering of securities pursuant to Rule 415 which does not commence promptly after the effective date of a registration statement, with the result that only information required pursuant to Rule 415 need be included in such registration statement at the effective date thereof with respect to the securities so offered. Whether the offering of the Securities is a Non-Delayed Offering or a Delayed Offering shall be set forth in Schedule I hereto. 4 (d) The Company is not an "investment company" or an entity "controlled" by an "investment company," in each case within the meaning of Section 3(a) of the Investment Company Act of 1940, as amended (the "Investment Company Act"), without regard to Section 3(c) of the Investment Company Act. (e) The Company is subject to and in full compliance with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act. (f) The Indentures have been duly authorized by the Company and, on the Closing Date will have been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery by the Trustee, constitute legal, valid and binding instruments enforceable against the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect). (g) The Securities have been duly authorized by the Company and, at the Closing Date, will have been duly executed and delivered to the Trustee for authentication in accordance with either the Senior Indenture or the Subordinated Indenture, as applicable, and, when authenticated in the manner provided for in the Senior Indenture or the Subordinated Indenture, as applicable, and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Senior Indenture or the Subordinated Indenture, as applicable. (h) This Agreement has been duly authorized, executed and delivered by the Company. (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Missouri, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction where the nature of its activities requires such qualification except where the failure of the Company to be so qualified would not, singularly or in the aggregate, have a materially adverse effect on the condition (financial or otherwise), earnings or business of the Company and its subsidiaries, considered as one enterprise, whether or not occurring in the ordinary course of business (a "Material Adverse Effect"). (j) Each of the Company's subsidiaries which qualify as a significant subsidiary as defined by the term "Significant Subsidiary" in Rule 1-02 of Regulation S-X under the Act and the Exchange Act (individually a "Subsidiary" and collectively, the "Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or 5 organized, with all requisite corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction where the nature of its activities requires such qualification except where the failure of such Subsidiary to be so qualified would not, singularly or in the aggregate, have a Material Adverse Effect. (k) All of the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid and non- assessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of all banking subsidiaries owned by the Company, either directly or through wholly owned Subsidiaries, are owned free and clear of any pledge, security interests, claims, liens or other encumbrances. (l) The Company and each of its Subsidiaries have all requisite power and authority, and all necessary material authorizations, approvals, orders, licenses, certificates and permits of and from regulatory or governmental officials, bodies and tribunals, to own or lease their respective properties and to conduct their respective businesses as now being conducted and as described in the Final Prospectus, and neither the Company nor any of the Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such authorizations, approvals, orders, licenses, certificates or permits which, singly or in the aggregate, if the failure to be so licensed or approved or if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect; and the Company and its Subsidiaries are in compliance with all applicable laws, rules, regulations and orders and consents, the violation of which would have a Material Adverse Effect. (m) The consolidated financial statements (including the notes thereto) and schedules of the Company and its consolidated subsidiaries appended to or included or incorporated by reference in the Final Prospectus comply as to form in all material respects with the requirements of the Act and fairly present in all material respects, in accordance with generally accepted accounting principles, the financial position of the Company and its consolidated subsidiaries, and the results of operations and changes in shareholders' equity and cash flows as of the dates and for the periods therein specified, subject, in the case of interim financial statements, if any, to year-end adjustments. Such consolidated financial statements and schedules have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise noted therein). The unaudited pro forma financial statements, if any, included or incorporated by reference in the Final Prospectus comply as to form in all material respects with the requirements of the Act; the pro forma adjustments have been properly applied to the historical amounts in the compilation of such pro forma statements; the assumptions described in the notes to such pro forma statements provide a reasonable basis for presenting the significant direct effects of the transactions contemplated therein and such pro forma adjustments 6 give appropriate effect to those adjustments, in each case, in accordance with Regulation S-X. (n) Since the respective dates as of which information is provided in the Final Prospectus, except as otherwise specifically stated therein, there has been no material adverse change or development with respect to the condition (financial or otherwise), earnings, business or prospects of the Company and its subsidiaries, taken as a whole (both before and after giving effect to the proposed merger of Roosevelt with the Company), whether or not arising in the ordinary course of business. (o) The authorized and issued capital stock of the Company is as set forth in the Final Prospectus, without giving effect to any exercise of outstanding options subsequent to the date of the Final Prospectus; all of the Company's issued and outstanding common shares, $0.01 par value per share (the "Common Shares"), have been duly authorized and validly issued and are fully paid and non-assessable. (p) Neither the Company nor any of the Subsidiaries is in violation of its respective charter or by-laws or similar organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, the effect of which violation or default in performance or observance would have a Material Adverse Effect. (q) Neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof or of any Delayed Delivery Contracts will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its Subsidiaries is a party or bound, or any order or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries. (r) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the "Bank Holding Company Act"), and the regulations of the Board of Governors of the Federal Reserve System (the "Federal Reserve"), and the deposit accounts of the Company's subsidiary banks are insured by the Federal Deposit Insurance Corporation ("FDIC") to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceedings for the termination of such insurance are pending or threatened. 2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the 7 Company, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto provides for the sale of Securities pursuant to delayed delivery arrangements, the respective principal amounts of Securities to be purchased by the Underwriters shall be as set forth in Schedule II hereto less the respective amounts of Contract Securities determined as provided below. Securities to be purchased by the Underwriters are herein sometimes called the "Underwriters' Securities" and Securities to be purchased pursuant to Delayed Delivery Contracts as hereinafter provided are herein called "Contract Securities". If so provided in Schedule I hereto, the Underwriters are authorized to solicit offers to purchase Securities from the Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the form of Schedule III hereto but with such changes therein as the Company may authorize or approve. The Underwriters will endeavor to make such arrangements and, as compensation therefor, the Company will pay to the Representatives, for the account of the Underwriters, on the Closing Date, the percentage set forth in Schedule I hereto of the principal amount of the Securities for which Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others. The Company will enter into Delayed Delivery Contracts in all cases where sales of Contract Securities arranged by the Underwriters have been approved by the Company but, except as the Company may otherwise agree, each such Delayed Delivery Contract must be for not less than the minimum principal amount set forth in Schedule I hereto and the aggregate principal amount of Contract Securities may not exceed the maximum aggregate principal amount set forth in Schedule I hereto. The Underwriters will not have any responsibility in respect of the validity or performance of Delayed Delivery Contracts. The principal amount of Securities to be purchased by each Underwriter as set forth in Schedule II hereto shall be reduced by an amount which shall bear the same proportion to the total principal amount of Contract Securities as the principal amount of Securities set forth opposite the name of such Underwriter bears to the aggregate principal amount set forth in Schedule II hereto, except to the extent that you determine that such reduction shall be otherwise than in such proportion and so advise the Company in writing; provided, however, that the total principal amount of Securities to be purchased by all Underwriters shall be the aggregate principal amount set forth in Schedule II hereto less the aggregate principal amount of Contract Securities. 3. Delivery and Payment. Delivery of and payment for the Underwriters' Securities shall be made on the date and at the time specified in Schedule I hereto (or such later date not later than five business days after such specified date as the Representatives shall designate), which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 8 hereof (such date and time of delivery and payment for the Underwriters' Securities being herein called the "Closing Date"). Delivery of the Underwriters' Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by a wire transfer of immediately available funds. Delivery of the Underwriters' Securities shall be 8 made at such location as the Representatives shall reasonably designate at least one business day in advance of the Closing Date. The Company agrees to have the Underwriters' Securities available for inspection and checking by the Representatives in New York, New York, not later than 1:00 PM on the business day prior to the Closing Date. 4. Agreements. The Company agrees with the several Underwriters that: (a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (b) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance. 9 (c) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its Subsidiaries that will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (d) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering. (e) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities, will arrange for the determination of the legality of the Securities for purchase by institutional investors and will pay the fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering, if any. (f) Until the business date set forth on Schedule I hereto, the Company will not, without the consent of the Representatives, offer, sell or contract to sell, or announce the offering of, any debt securities issued or guaranteed by the Company (other than the Securities). (g) The Company confirms as of the date hereof that it is in compliance with all provisions of Section 1 of Laws of Florida, Chapter 92- 198, An Act Relating to Disclosure of Doing Business with Cuba, and the Company further agrees that if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba after the date the Registration Statement becomes or has become effective with the Securities and Exchange Commission or with the Florida Department of Banking and Finance (the "Department"), whichever date is later, or if the information reported in the Prospectus, if any, concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will provide the Department notice of such business or change, as appropriate, in a form acceptable to the Department. 5. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwriters' Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the 10 Registration Statement will become effective not later than (i) 6:00 PM New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 12:00 Noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to the Representative the opinion of Jon W. Bilstrom, General Counsel and Secretary, dated the Closing Date, addressed to the Representatives to the effect that: (i) each of the Company and each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business; and holds all material approvals, authorizations, orders, licenses, certificates and permits from governmental authorities necessary for the conduct of its business as described in the Final Prospectus, except where the failure to hold such approvals, authorizations, orders, licenses, certificates and/or permits would not, singularly or in the aggregate, have a Material Adverse Effect; (ii) all the outstanding shares of capital stock of the Company and each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of its banking subsidiaries owned by the Company either directly or through wholly owned subsidiaries are owned free and clear of any pledge, security interest, claim, lien or other encumbrance; (iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; 11 (iv) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof or of any Delayed Delivery Contracts will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound, or any order or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries; (v) the information contained in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996 under the caption "Supervision and Regulation" in Item 1. "Business" and in Item 3. "Legal Proceedings" fairly summarizes the matters therein described; and (vi) the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, and the regulations thereunder of the Federal Reserve, and the deposit accounts of the Company's banking subsidiaries are insured by the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceedings for the termination of such insurance are pending or threatened. Such counsel shall also state that he has no reason to believe that at the Execution Time the Final Prospectus contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus at the Closing Date contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinions, such counsel may (A) state that his opinion is limited to the laws of the State of Missouri and the Federal laws of the United States and (B) rely as to matters involving the application of laws of any jurisdiction other than the State of Missouri or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (C) rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. 12 (c) The Company shall have furnished to the Representatives the opinion of Thompson Coburn, counsel for the Company, dated the Closing Date, to the effect that: (i) the Company's authorized equity capitalization is as set forth in the Final Prospectus; the Securities conform to the description thereof contained in the Final Prospectus; and, if the Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such securities exchange and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution; (ii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Senior Indenture or the Subordinated Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Senior Indenture or the Subordinated Indenture; (iii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters; (iv) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness 13 of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; (v) this Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; (vi) the statements in the Final Prospectus under the headings "Description of Debt Securities," "Senior Securities" and "Subordinated Securities" insofar as such statements purport to summarize certain provisions of the Indentures and the terms of the Securities, provide a fair summary of such provisions and terms; (vii) the Company is not an "investment company" or an entity "controlled" by an "investment company," in each case within the meaning of Section 3(a) of the Investment Company Act; and (viii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. Such counsel shall also state that they have no reason to believe that at the Effective Date or at the Execution Time the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or that on the date of any filing pursuant to Rule 424(b) and on the Closing Date the Final Prospectus contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may (A) state that their opinion is limited to the laws of the States of Missouri and New York and the Federal laws of the United States (and, for purposes of New York law, assume that the laws of the State of New York relevant to such opinions are substantially similar in their interpretation to the analogous laws of the State of Missouri), (B) rely as to matters involving the application of laws of any jurisdiction other than the States of Missouri or New York or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (C) rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (c) include any supplements thereto at the Closing Date. 14 (d) The Representatives shall have received from Cleary, Gottlieb, Steen & Hamilton, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto). (f) At the Closing Date, KPMG Peat Marwick LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants (the "AICPA") and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Registration Statement and the Final Prospectus and reported on by them comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; 15 (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and Roosevelt and their respective subsidiaries; their limited review in accordance with standards established by the AICPA of the unaudited interim financial information as indicated in their reports, if any, incorporated in the Registration Statement and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the shareholders or stockholders, as the case may be, directors and executive and audit committees of the Company and Roosevelt and their respective subsidiaries; and inquiries of certain officials of the Company and Roosevelt who have responsibility for financial and accounting matters of the Company and Roosevelt and their respective subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Final Prospectus, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated in the Registration Statement and the Final Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; or said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Final Prospectus, there were at a specified date not more than three business days prior to the date of the letter, (a) any changes in the consolidated capital stock, consolidated long-term debt, consolidated total deposits or consolidated total assets of the Company and its subsidiaries or Roosevelt and its subsidiaries, as the case may be, or decrease in the stockholders' equity of the Company and its subsidiaries or Roosevelt and its subsidiaries, as the case may be, as compared with the amounts shown on the most recent consolidated balance sheets included or incorporated in the Registration Statement and the Final Prospectus, or (b) any decreases, as compared with the corresponding period in the preceding year in the consolidated interest income, net income or per share amounts of net income of the Company and its subsidiaries or Roosevelt and its subsidiaries, as the case may be, except in all instances for changes or decreases set forth in such letter, in which 16 case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries or Roosevelt and its subsidiaries, as the case may be) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in the Company's or Roosevelt's Annual Report on Form 10-K, incorporated in the Registration Statement and the Final Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's or Roosevelt's, as applicable, Quarterly Reports on Form 10-Q and the Company's or Roosevelt's Current Reports on Form 8-K, if any, incorporated in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and (iv) if pro forma financial statements are included or incorporated in the Registration Statement and the Final Prospectus, on the basis of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company and Roosevelt who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. 17 In addition, except as provided in Schedule I hereto, at the Execution Time, KPMG Peat Marwick LLP shall have furnished to the Representatives a letter or letters, dated as of the Execution Time, in form and substance satisfactory to the Representatives, to the effect set forth above. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter referred to in paragraph (f) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto). (h) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (j) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or telecopy confirmed in writing. 6. Reimbursement of Underwriters' Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied, because of any termination pursuant to Section 9 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a 18 default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities. 7. Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page, in the section entitled "Plan of Distribution" and, if Schedule I hereto provides for sales of Securities pursuant to delayed delivery arrangements, in the last sentence under the heading "Delayed Delivery Arrangements" in any Preliminary Final Prospectus or the Final Prospectus constitute the only information furnished in writing by or on behalf of the several 19 Underwriters for inclusion in the documents referred to in the foregoing indemnity, and you, as the Representatives, confirm that such statements are correct. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred 20 in connection with investigating or defending same) (collectively "Losses") to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and by the Underwriters from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among Underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and of the Underwriters in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses), and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to whether any alleged untrue statement or omission relates to information provided by the Company or the Underwriters. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d). 8. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions that the amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if 21 such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 8, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder. 9. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if prior to such time (i) trading in any of the Company's securities shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Final Prospectus (exclusive of any supplement thereto). 10. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 6 and 7 hereof shall survive the termination or cancellation of this Agreement. 11. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telegraphed and confirmed to them, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at P.O. Box 524, St. Louis, Missouri, 63166- 0524, attention of the legal department. 12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. 13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your 22 acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, Mercantile Bancorporation Inc. By: _______________________________ Title: The foregoing Agreement is hereby confirmed and accepted as of the date specified in Schedule I hereto. [Representative] By: ___________________________ Title: For itself and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. 23 SCHEDULE I Underwriting Agreement dated Registration Statement No. Representative(s): Title, Purchase Price and Description of Securities: Title: Principal amount: Purchase price (include accrued interest or amortization, if any): Sinking fund provisions: Redemption provisions: Other provisions: Closing Date, Time and Location: Type of Offering: [Delayed Offering or Non-Delayed Offering] Delayed Delivery Arrangements: Fee: Minimum principal amount of each contract: $ Maximum aggregate principal amount of all contracts: $ 24 Date referred to in Section 4(f) after which the Company may offer or sell debt securities issued or guaranteed by the Company without the consent of the Representative(s): Modification of items to be covered by the letter from KPMG Peat Marwick LLP delivered pursuant to Section 5(f) at the Execution Time: 25 SCHEDULE II
Principal Amount of Securities to Underwriters be Purchased - ------------ ---------------- $ --------------- Total........................... $ ---------------
26 SCHEDULE III Delayed Delivery Contract _______________, 19__ [Insert name and address of lead Representative] Dear Sirs: The undersigned hereby agrees to purchase from Mercantile Bancorporation Inc. (the "Company"), and the Company agrees to sell to the undersigned, on ________, 19__, (the "Delivery Date"), $______ principal amount of the Company's _____________________________ (the "Securities") offered by the Company's Prospectus dated __________, 19__, and related Prospectus Supplement dated __________, 19__, receipt of a copy of which is hereby acknowledged, at a purchase price of ___% of the principal amount thereof, plus [accrued interest] [amortization of original issue discount], if any, thereon from __________, 19__, to the date of payment and delivery, and on the further terms and conditions set forth in this contract. Payment for the Securities to be purchased by the undersigned shall be made on or before 11:00 AM, New York City time, on the Delivery Date to or upon the order of the Company in New York Clearing House (next day) funds, at your office or at such other place as shall be agreed between the Company and the undersigned, upon delivery to the undersigned of the Securities in definitive fully registered form and in such authorized denominations and registered in such names as the undersigned may request by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. If no request is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on the Delivery Date. The obligation of the undersigned to take delivery of and make payment for Securities on the Delivery Date, and the obligation of the Company to sell and deliver Securities on the Delivery Date, shall be subject to the conditions (and neither party shall incur any liability by reason of the failure thereof) that (1) the purchase of Securities to be made by the undersigned, which purchase the undersigned represents is not prohibited on the date hereof, shall not on the Delivery Date be prohibited under the laws of the jurisdiction to which the undersigned is subject, and (2) the Company, on or before the Delivery Date, shall have sold to certain underwriters (the "Underwriters") such principal amount of the Securities as is to be sold to them pursuant to the Underwriting Agreement referred to in the Prospectus and 27 Prospectus Supplement mentioned above. Promptly after completion of such sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith. The obligation of the undersigned to take delivery of and make payment for the Securities, and the obligation of the Company to cause the Securities to be sold and delivered, shall not be affected by the failure of any purchaser to take delivery of and make payment for the Securities pursuant to other contracts similar to this contract. This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. It is understood that acceptance of this contract and other similar contracts is in the Company's sole discretion and, without limiting the foregoing, need not be on a first come, first served basis. If this contract is acceptable to the Company, it is required that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned, as of the date first above written, when such counterpart is so mailed or delivered. 28 This agreement shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, --------------------------------- (Name of Purchaser) By ------------------------------- --------------------------------- (Signature and Title of Officer) --------------------------------- (Address) Accepted: Mercantile Bancorporation Inc. By ------------------------------- (Authorized Signature) 29 EX-4.1 3 INDENTURE REGARDING SENIOR SECURITIES EXHIBIT 4.1 ------------------------------------- MERCANTILE BANCORPORATION INC. and HARRIS TRUST AND SAVINGS BANK Trustee ------------------ INDENTURE REGARDING SENIOR SECURITIES Dated as of ___________, 199_ ------------------------------------- Reconciliation and Tie Sheet* between Provisions of the Trust Indenture Act of 1939 and Indenture, dated as of ___________, 1997 between MERCANTILE BANCORPORATION INC. and HARRIS TRUST AND SAVINGS BANK, Trustee Section of Act............. Section of Indenture -------------- -------------------- 310(a)(1), (2)............. 5.08 310(a)(3), (4)............. Inapplicable 310(a)(5).................. 5.08 310(b)..................... ** 310(c)..................... Inapplicable 311(a), (b)................ ** 311(c)..................... Inapplicable 312........................ ** 313(a)..................... ** 313(b)(1).................. Inapplicable 313(b)(2).................. ** 313(c), (d)................ ** 314(a)..................... ** 314(b)..................... Inapplicable 314(c)(1) and (2).......... 15.05 314(c)(3).................. Inapplicable 314(d)..................... Inapplicable 314(e)..................... 15.05 314(f)..................... Inapplicable 315(a)(c) and (d).......... 5.01 315(b)..................... 4.08 315(e)..................... 4.09 316(a)(1).................. 4.01 and 4.07 316(a)(2).................. Omitted 316(a) last sentence....... 6.04 316(b)..................... 4.04 316(c)..................... 6.05 317(a)..................... 4.02 317(b)..................... 3.04(a) 318(a)..................... 15.07
- ---------- * This Reconciliation and Tie-sheet is not a part of the Indenture. ** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939. TABLE OF CONTENTS* ----------------- Page ---- Parties............................................................................. 1 Recitals............................................................................ 1 ARTICLE ONE DEFINITIONS Section 1.01. Definitions.......................................................... 1 ARTICLE TWO THE SECURITIES AND SECURITY FORMS Section 2.01. Amount Unlimited; Issuable in Series................................. 6 Section 2.02. Form of Securities and of Trustee's Certificate of Authentication.... 8 Section 2.03. Securities in Global Form............................................ 8 Section 2.04. Denomination, Authentication and Dating of Securities................ 9 Section 2.05. Execution of Securities.............................................. 11 Section 2.06. Exchange and Registration of Transfer of Securities.................. 12 Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities...................... 14 Section 2.08. Temporary Securities................................................. 15 Section 2.09. Payment of Interest; Interest Rights Preserved....................... 16 Section 2.10. Cancellation of Securities Paid, etc................................. 17 ARTICLE THREE PARTICULAR COVENANTS OF THE COMPANY Section 3.01. Payment of Principal and Interest.................................... 18 Section 3.02. Offices for Notices and Payments, etc................................ 18 Section 3.03. Provisions as to Paying Agent........................................ 19 Section 3.04. Statement as to Compliance........................................... 19 Section 3.05. Notice of Certain Defaults........................................... 20 Section 3.06. Limitation on Certain Dispositions and on Merger and Sale of Assets.. 20 Section 3.07. Limitation on Creation of Liens...................................... 21 Section 3.08. Corporate Existence.................................................. 21
- ----------- * This table of contents is not part of the Indenture. -i- Page ---- ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT Section 4.01. Events of Default.................................................... 21 Section 4.02. Payment of Securities on Default; Suit Therefor...................... 23 Section 4.03. Application of Money Collected By Trustee............................ 24 Section 4.04. Proceedings by Securityholders....................................... 25 Section 4.05. Proceedings by Trustee............................................... 25 Section 4.06. Remedies Cumulative and Continuing; Delay or Omission Not Waiver..... 26 Section 4.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders...................................................... 26 Section 4.08. Notice of Defaults................................................... 26 Section 4.09. Undertaking to Pay Costs............................................. 27 ARTICLE FIVE CONCERNING THE TRUSTEE Section 5.01. Duties and Responsibilities of Trustee............................... 27 Section 5.02. Reliance on Documents, Opinions, etc................................. 28 Section 5.03. No Responsibility for Recitals, etc.................................. 29 Section 5.04. Trustee, Paying Agents or Registrar May Own Securities............... 29 Section 5.05. Money to be Held in Trust............................................ 29 Section 5.06. Compensation and Expenses of Trustee................................. 29 Section 5.07. Officers' Certificate as Evidence.................................... 29 Section 5.08. Eligibility of Trustee............................................... 30 Section 5.09. Resignation or Removal of Trustee.................................... 30 Section 5.10. Acceptance by Successor Trustee...................................... 31 Section 5.11. Succession by Merger, etc............................................ 31 ARTICLE SIX CONCERNING THE SECURITYHOLDERS Section 6.01. Action by Securityholders............................................ 32 Section 6.02. Proof of Execution by Securityholders................................ 32 Section 6.03. Who Are Deemed Absolute Owners....................................... 33 Section 6.04. Company Owned Securities Disregarded................................. 33 Section 6.05. Revocation of Consents; Future Holders Bound......................... 34 ARTICLE SEVEN SECURITYHOLDERS' MEETINGS Section 7.01. Purpose of Meetings.................................................. 34 Section 7.02. Call of Meetings by Trustee.......................................... 34
-ii- Page ---- Section 7.03. Call of Meetings by Company or Securityholders....................... 35 Section 7.04. Qualifications for Voting............................................ 35 Section 7.05. Regulations.......................................................... 35 Section 7.06. Quorum............................................................... 36 Section 7.07. Voting............................................................... 36 Section 7.08. No Delay of Rights by Meeting........................................ 36 ARTICLE EIGHT SUPPLEMENTAL INDENTURES Section 8.01. Supplemental Indentures Without Consent of Securityholders........... 37 Section 8.02. Supplemental Indentures with Consent of Securityholders of a Series.. 38 Section 8.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures........................................................... 39 Section 8.04. Notation on Securities............................................... 39 Section 8.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee.............................................................. 39 ARTICLE NINE CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE Section 9.01. Company May Consolidate, etc., on Certain Terms...................... 39 Section 9.02. Successor Corporation Substituted.................................... 40 ARTICLE TEN REDEMPTION OF SECURITIES Section 10.01. Applicability of Article............................................. 40 Section 10.02. Election to Redeem; Notice to Trustee................................ 40 Section 10.03. Selection by Trustee of Securities to be Redeemed.................... 40 Section 10.04. Notice of Redemption................................................. 41 Section 10.05. Deposit of Redemption Price.......................................... 41 Section 10.06. Securities Payable on Redemption Date................................ 42 Section 10.07. Registered Securities Redeemed in Part............................... 42 ARTICLE ELEVEN SINKING FUNDS Section 11.01. Applicability of Article............................................. 42 Section 11.02. Satisfaction of Sinking Fund Payments with Securities................ 43 Section 11.03. Redemption of Securities for Sinking Fund............................ 43
-iii-
Page ---- ARTICLE TWELVE REPAYMENT AT THE OPTION OF HOLDERS Section 12.01. Terms Set Forth in the Securities................................ 43 ARTICLE THIRTEEN SATISFACTION AND DISCHARGE OF INDENTURE Section 13.01. Discharge of Indenture........................................... 44 Section 13.02. Deposited Money to be Held in Trust by Trustee................... 44 Section 13.03. Paying Agent to Repay Money Held................................. 44 Section 13.04. Return of Unclaimed Money........................................ 45 Section 13.05. Discharge of Indenture as to Certain Series of Securities........ 45 Section 13.06. Repayment to Company of Deposits Made Pursuant to Section 13.05.. 46 Section 13.07. Deposits Irrevocable............................................. 47 Section 13.08. Reinstatement 47 ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS Section 14.01. Indenture and Securities Solely Corporate Obligations............ 47 ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS Section 15.01. Provisions Binding on Company's Successors....................... 47 Section 15.02. Official Acts by Successor Corporation........................... 47 Section 15.03. Addresses for Notices, etc....................................... 48 Section 15.04. Governing Law.................................................... 48 Section 15.05. Evidence of Compliance with Conditions Precedent................. 48 Section 15.06. Legal Holidays................................................... 48 Section 15.07. Trust Indenture Act to Control................................... 48 Section 15.08. No Security Interest Created..................................... 49 Section 15.09. Benefits of Indenture............................................ 49 Signatures............................................................................ 50 Acknowledgements...................................................................... 51
-iv- THIS INDENTURE, dated as of __________________, 199_, is entered into by MERCANTILE BANCORPORATION INC., a Missouri corporation (such corporation or, subject to Article Nine, its successors and assigns, the "Company"), and HARRIS TRUST AND SAVINGS BANK, a banking corporation, duly organized and existing under the laws of Illinois (such banking corporation or, subject to Article Five, its successors and assigns as Trustee under this Indenture, the "Trustee"). RECITAL OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured senior debentures, notes or other evidences of indebtedness or warrants therefor to be issued in one or more series (the "Securities"), as provided herein. For and in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all holders of the Securities, as follows: ARTICLE ONE DEFINITIONS Section 1.01. Definitions. The terms defined in this Section 1.01 (except to the extent the application of such definitions is expressly limited to certain instances, and except as otherwise expressly provided in this Indenture or unless the context otherwise requires) for all purposes of this Indenture will have the respective meanings specified in this Section 1.01. Except as otherwise expressly provided in this Indenture or unless the context otherwise requires, all other terms used in this Indenture that are defined in the Trust Indenture Act or that the Trust Indenture Act defines by reference to the Securities Act of 1933 or by Commission rule under the Trust Indenture Act will have the meanings assigned to such terms in the Trust Indenture Act, in such rule thereunder or in such Securities Act as in force at the date of the execution of this Indenture. Bank: The term "Bank" means (i) any institution, including savings associations and other United States depository institutions, organized under the laws of the United States, any State, the District of Columbia, Puerto Rico or any territory of the United States that (a) accepts deposits that the depositor has a legal right to withdraw on demand and (b) engages in the business of making loans and (ii) any trust company organized under any of the foregoing laws. Unless otherwise provided, for purposes of this Indenture, a Bank also will be considered a "corporation." Bearer Security: The term "Bearer Security" means any Security established pursuant to Section 2.02 that is payable to bearer. Bearer Security Tax Certificate: The term "Bearer Security Tax Certificate" or "Certificate of non-U.S. Ownership", when used with respect to a Bearer Security, means a certificate satisfying the requirements of Treasury Regulation (S) 1.163-5(c)(2)(i)(D)(3), as that provision may be amended or redesignated from time to time, which certificate shall be in a form approved by the Company. Board of Directors: The term "Board of Directors" means the board of directors of the Company or, which respect to any matter, any committee of the Board of Directors duly authorized to act for the Board of Directors with respect to such matter. Business Day: The term "Business Day", with respect to each series of Securities, means any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which banking institutions are authorized or obligated by law or regulation to close in either The City of New York or the City of Chicago or, with respect to Registered Notes that will bear interest based on a specified percentage of London interbank offered quotation ("LIBOR"), in London, England, or, in the case of Bearer Securities, in any Place of Payment. CEDEL: The term "CEDEL" means Cedel Bank, societe anonyme. Commission: The term "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture the Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date. Company: The term "Company" means the corporation identified as the Company in the first paragraph of this Indenture until a successor corporation shall succeed to and be substituted for the Company pursuant to the provisions of Article Nine, and thereafter shall mean such successor corporation. Company Order: The term "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, any Vice Chairman, its Chief Executive Officer, its President, any Executive Vice President or any Senior Vice President and its Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary, and delivered to the Trustee. Consolidated Net Banking Assets: The term "Consolidated Net Banking Assets" means all net assets owned directly or indirectly by a Subsidiary that is a Bank as such net assets would be reflected on a consolidated balance sheet of the Company prepared in accordance with generally accepted accounting principles generally accepted at the time. Constituent Bank: The term "Constituent Bank" means any Subsidiary that is a Bank. Controlled Subsidiary: The term "Controlled Subsidiary" means any Subsidiary of which more than 80% of the aggregate voting power of the outstanding shares of the Voting Stock at the time is owned directly or indirectly by the Company or by one or more Controlled Subsidiaries or by the Company and one or more Controlled Subsidiaries, after giving effect to the issuance to any Person other than the Company or any Controlled Subsidiary of Voting Stock of the Subsidiary issuable on exercise of options, warrants or rights to subscribe for such Voting Stock or on conversion of securities convertible into such Voting Stock. Coupon: The term "coupon" means any interest coupon appertaining to a Bearer Security. Defaulted Interest: The term "Defaulted Interest" has the meaning specified in Section 2.09. Depositary: The term "Depositary," with respect to the Securities of any series issuable or issued in the form of one or more Global Securities, means the Depository Trust Company, New York, New York, or such other Person designated as Depositary by the Company in the manner provided in Section 2.01, until a successor Depositary shall have been appointed pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" means or includes each person who is then a Depositary -2- hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series means the Depositary with respect to the Securities of that series. Euroclear: The term "Euroclear" means Morgan Guaranty Trust Company of New York, Brussels Office, as operator of the Euroclear System. Event of Default: The term "Event of Default" means any event specified in Section 4.01, continued for the period of time, if any, and after the giving of the notice, if any, designated in Section 4.01. Global Security: The term "Global Security" means a Security issued to evidence all or a part of a series of Securities in accordance with Section 2.03. Indenture: The term "Indenture" means this instrument as originally executed or, if amended or supplemented as provided in this Indenture, as so amended or supplemented. Interest: The term "interest," when used with respect to an Original Issue Discount Security that by its terms bears interest only after Maturity, means interest payable after Maturity. Interest Payment Date: The term "Interest Payment Date," when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security. Maturity: The term "Maturity," when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by the declaration of acceleration, call for redemption, repayment at the option of the holder or otherwise. Officers' Certificate: The term "Officers' Certificate," when used with respect to the Company, means a certificate signed by the Chairman of the Board, any Vice Chairman, the Chief Executive Officer, the President, any Executive Vice President or any Senior Vice President and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company. Except as otherwise provided in this Indenture, each such certificate shall include the statements provided for in Section 15.05. Opinion of Counsel: The term "Opinion of Counsel" means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, who shall be acceptable to the Trustee, and delivered to the Trustee. Except as otherwise provided in this Indenture, each opinion shall include the statements provided for in Section 15.05. Original Issue Discount Security; principal amount or aggregate principal amounts: The term "Original Issue Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 4.01. The terms "principal amount" or "aggregate principal amount," when used with respect to Original Issue Discount Securities, have the meaning (or meanings) specified in the manner contemplated by Section 2.01 for purposes of: determining the amount due and payable in the event of an acceleration of Maturity as provided in Section 4.01; the redemption provisions in Article Ten; determining whether the holders of the requisite principal amount of Outstanding Securities of any Series have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture; and determining whether a quorum is present at a meeting of Securityholders. -3- Paying Agent: The term "Paying Agent," when used with respect to Securities of any series, means any Person authorized by the Company to pay the principal of and any premium or interest on any Securities of that series on behalf of the Company. Person: The term "Person" means a corporation, an association, a partnership, an organization, a trust, an individual, a government or a political subdivision thereof or a governmental agency. Place of Payment: The term "Place of Payment" has the meaning stated in Section 2.01(5). Predecessor Security: The term "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt that was evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 2.06 in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. Principal Constituent Bank: The term "Principal Constituent Bank" means, at any time, Mercantile Bank National Association and any other Constituent Bank, the total assets of which (as set forth in the most recent statement of condition of such Constituent Bank) equal more than 20% of the total assets of all Constituent Banks as determined from the most recent statements of condition of the Constituent Banks. Principal office of the Trustee: The term "principal office of the Trustee" or any other similar term means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office, at the date of this instrument, is located at 311 West Monroe Street, 12th floor, Chicago, Illinois 60606. Redemption Date: The term "Redemption Date," when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. Redemption Price: The term "Redemption Price," when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. Registered Security: The term "Registered Security" means any Security, in the form of registered securities established pursuant to Section 2.02, that is registered in the Security Register. Regular Record Date: The term "Regular Record Date," with respect to the interest payable on any Interest Payment Date on the Securities of any series, means the date specified for that purpose as contemplated by Section 2.01. Responsible Officer: The term "Responsible Officer," when used with respect to the Trustee, means the Chairman or Vice Chairman of its board of directors, the Chairman or Vice Chairman of the executive committee of the board of directors, the President, any vice President, any senior trust officer, any trust officer, any assistant trust officer or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be the above-named officers, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. Security or Securities; Outstanding: The term "Security" or "Securities" has the meaning stated in the recital of this Indenture and means any Security or Securities, as the case may be, authenticated and delivered pursuant to this Indenture. Whenever this Indenture refers to any interest on or with -4- respect to any Security that is represented by a coupon, such reference to the Security also shall include reference to a coupon. The term "Outstanding," when used with reference to Securities of any series or the related coupons, subject to the provisions of Section 6.04, means, as of any particular time, all Securities of such series or any related coupons authenticated and delivered by the Trustee pursuant to this Indenture except: (a) such Securities and coupons theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) such Securities and coupons, or portions thereof, for the payment or redemption of which money in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent), provided that if such Securities are to be redeemed prior to the Maturity thereof, notice of such redemption shall have been provided as specified in Article Ten, or provision satisfactory to the Trustee shall have been made for mailing such notice; and (c) Securities or coupons in lieu of or in substitution for which other Securities or coupons shall have been authenticated and delivered pursuant to the terms of Section 2.06, except to the extent that a bona fide holder in due course of any such Securities shall have presented proof satisfactory to the Trustee that such holder is a bona fide holder in due course of any such Securities or coupons. Security Register: The term "Security Register," when used with respect to a Registered Security, has the meaning specified in Section 2.06(b). Securityholder: The term "Securityholder," "holder of Securities," "holder" or other similar term, when used with respect to a Registered Security, means any Person in whose name at the time a particular Registered Security is registered on the Security Register and, when used with respect to a Bearer Security or coupon, the bearer thereof. Special Record Date: The term "Special Record Date" has the meaning specified in Section 2.09. Stated Maturity: The term "Stated Maturity," when used with respect to any Security or any payment of premium or any installment of interest thereon, means the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such payment of premium or such installment of interest is due and payable. Subsidiary: The term "Subsidiary" means any corporation of which a majority of the aggregate voting power of the outstanding Voting Stock at the time shall be owned by the Company or by the Company and one or more Subsidiaries or by one or more Subsidiaries. Trust Indenture Act: The term "Trust Indenture Act" means the Trust Indenture Act of 1939 as it was in force at the date of execution of this Indenture, except as provided in Section 8.03; provided, however, that, in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. Trustee: The term "Trustee" means the Person identified as the Trustee in the first paragraph of this Indenture until a successor shall succeed to the trusts created by this Indenture pursuant to the provisions of Article Five, and thereafter shall mean such successor. -5- United States: The term "United States" means the United States of America (including the District of Columbia) and its possessions. U.S. Government Obligations: The term "U.S. Government Obligations" has the meaning specified in Section 13.05(b). Vice President: The term "vice president" or "Vice President," when used with respect to the Company or the Trustee, means any such officer whether or not designated by a number or a word or words added before or after such title. Voting Stock: The term "Voting Stock" of a corporation or other entity means stock of the class or classes having general voting power in an election of the board of directors, managers or trustees of such corporation or other entity (irrespective of whether, at the time, stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). ARTICLE TWO THE SECURITIES AND SECURITY FORMS Section 2.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. Securities may be issued in one or more series. The terms and conditions listed below, as applicable, of any series of Securities shall be established either in an indenture supplemental hereto or in or pursuant to a resolution of the Board of Directors: (1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of all other series); (2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 8.04 or 10.07); (3) the date or dates on which the principal of the Securities of the series is payable; (4) the rate or rates (which may be fixed or variable) at which the Securities of the series shall bear interest, if any, or the formula by which interest shall be calculated by the Company or an agent designated for such purpose, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Registered Security on any Interest Payment Date; (5) the place or places, if any, in addition to those specified herein, where the principal of and any premium or interest on Securities of the series shall be payable (the "Place of Payment"), any Registered Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and where notices to holders pursuant to this Indenture will be published; -6- (6) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise; (7) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a holder thereof and the price or prices at which, the period or periods within which and the other terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation, which in the case of Securities of any series that are repayable at the option of a holder thereof shall be set forth in the form of such Security; (8) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether Securities of the series are to be issuable with or without coupons or both and, in the case of Bearer Securities, the date as of which such Bearer Securities shall be dated if other than the date of original issuance of the first Security of such series of like tenor and term to be issued; (9) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary (if other that the Depository Trust Company) for such Global Security or Securities and whether such global form shall be permanent or temporary; (10) if Securities of the series are to be issuable initially in the form of one or more temporary Global Securities, the circumstances under and the manner in which such temporary Global Securities can be exchanged for definitive Securities of the series and whether such definitive Securities will be Registered Securities, Bearer Securities or both and will be in global form; (11) the denominations in which Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which Bearer Securities of such series, if any, shall be issuable if other than the denomination of $5,000; (12) any Event of Default with respect to the Securities of such series, if not set forth herein; (13) the form of Securities of such series; (14) the Person or Persons who shall be Security registrar for the Securities of such series if other than as provided for in this Indenture, and the place or places where the Security registrar for such series shall be maintained and the Person or Persons who will be the initial Paying Agent or Agents, if other than as provided for in this Indenture; (15) if warrants for Securities of any series are to be issued, the form in which the warrants shall be issued, the circumstances under and the manner in which the warrants may be exercised, any obligation of the Company concerning any Securities underlying the warrants and any other terms or conditions regarding the warrants and any Securities underlying the warrants; and -7- (16) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). All Securities of any series and the coupons appertaining to Bearer Securities of such series, if any, issued under this Indenture in all respects shall be equally and ratably entitled to the benefits hereof with respect to such series without preference, priority or distinction on account of actual time or times of authentication and delivery or Maturity of the Securities of such series. All Securities of the same series and the coupons appertaining to Bearer Securities of such series, if any, shall be substantially identical except as to denomination and except as may otherwise be provided either in an indenture supplemental hereto or a resolution of the Board of Directors. Section 2.02. Form of Securities and of Trustee's Certificate of Authentication. The Registered Securities, if any, and the Bearer Securities and related coupons, if any, of each series and the certificates of authentication on the Securities shall be in substantially the form as shall be established as provided in Section 2.01 with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or as may be determined consistently herewith by the officers executing such Securities or coupons, as evidenced by their execution of the Securities or coupons. If the form of Securities of any series or coupons (including any Global Security) is established by action taken pursuant to a resolution of the Board of Directors, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate, and shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 2.04(b) or the authentication and delivery of such Securities. Each Bearer Security and Coupon shall bear a legend substantially to the following effect: "Any United States Person will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code." The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange, all as determined by the officers executing such Securities or coupons, as evidenced by their execution of such Securities or coupons. The form of Trustee's certificate of authentication for all Securities shall be as follows: TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities issued under the within-mentioned Indenture. HARRIS TRUST AND SAVINGS BANK, as Trustee by -------------------------------------------- Authorized Officer Section 2.03. Securities in Global Form. (a) If Securities of a series are issuable in whole or in part in global form, as specified in the manner contemplated by Section 2.01, then, notwithstanding the provisions of clause (11) of Section 2.01 or Section 2.04, such Global Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding -8- Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby from time to time may be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons as shall be specified in such Global Security or in the Company Order to be delivered to the Trustee pursuant to Section 2.04(b). (b) The provisions of the last sentence of Section 2.05(b) shall apply to any Securities represented by a Global Security if such Securities were never issued and sold by the Company (whether because of failure of settlement or otherwise) and the Company delivers to the Trustee the Global Security together with written instructions with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 2.05(b). (c) Global Securities may be issued in either registered or bearer form and in either temporary or permanent form. Section 2.04. Denomination, Authentication and Dating of Securities. (a) Securities of each series shall be issuable in such form and denomination as shall be specified in the form of Security for such series approved or established pursuant to Section 2.02. In the absence of any specification, as provided in Section 2.01, with respect to the Securities of any series, the Registered Securities of such series, if any, shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series, if any, shall be issuable in the denomination of $5,000. Each Registered Security shall be dated as of the date of its authentication. Each Bearer Security shall be dated as of the date specified in the manner contemplated by Section 2.01. (b) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. Except as otherwise provided in this Article Two, the Trustee thereupon shall authenticate and deliver such Securities in accordance with a Company Order; provided, however, that in connection with its original issuance a Bearer Security may be delivered only outside the United States and, except in the case of a temporary Global Security, only if the Company or its agent shall have received from the person entitled to receive the Bearer Security a Bearer Security Tax Certificate and only if the Company has no reason to know that such certificate is false. (c) To the extent authorized in or pursuant to a resolution of the Board of Directors or established in an indenture supplemental hereto, such Company Order may be electronically transmitted and may provide instructions as to registration of holders, principal amounts, rates of interest, Stated Maturities and other matters contemplated by such resolution of the Board of Directors or supplemental indenture to be so instructed in respect thereof. (d) In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and, subject to Section 5.01, shall be fully protected in relying upon: (i) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate; -9- (ii) an executed supplemental indenture, if any; (iii) an Officers' Certificate delivered in accordance with Section 15.05; and (iv) an Opinion of Counsel which shall state: (A) that the form of such Securities and coupons, if any, has been established by a supplemental indenture or by or pursuant to a resolution of the Board of Directors in accordance with Sections 2.01 and 2.02 and in conformity with the provisions of this Indenture; (B) that the terms of such Securities and coupons, if any, have been established in accordance with Section 2.01 and in conformity with the provisions of this Indenture; (C) that such Securities, when authenticated and delivered by the Trustee and issued (with coupons attached, if applicable) by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; (D) that all conditions precedent, if any, provided for in this Indenture have been complied with; and (E) that all laws and requirements in respect of the execution and delivery by the Company of such Securities and coupons, if any, have been complied with. (e) If the Company shall establish pursuant to Section 2.01 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee, in accordance with this Section 2.04 and the Company Order with respect to such series, shall authenticate and deliver one or more Global Securities in permanent or temporary form that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary and (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instruction. (f) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.04 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors or trustees or vice presidents shall determine that such action would expose the Trustee to personal liability to existing holders. (g) Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary for the Company to deliver to the Trustee a Company Order, Officers' Certificate, resolution of the Board of Directors, supplemental indenture or Opinion of Counsel otherwise required pursuant to Section 2.04(b) or Section 2.04(d) at or prior to the time of authentication of each Security of such series if such documents are delivered to the Trustee or its agent at or prior to the authentication upon original issuance of the first Security of such series to be -10- issued. In such event, any subsequent request by the Company to the Trustee to authenticate Securities of such Series upon original issuance shall constitute a representation and warranty by the Company that, as of the date of such request, the statements made in the Officers' Certificate or other certificates delivered pursuant to Section 2.04(d) shall be true and correct as if made on such date. A Company Order, Officers' Certificate, resolution of the Board of Directors or supplemental indenture delivered by the Company to the Trustee in the circumstances set forth in this Section 2.04(g) may provide that Securities that are the subject thereof will be authenticated and delivered by the Trustee or its agent on original issue from time to time in the aggregate principal amount established for such series pursuant to such procedures acceptable to the Trustee as may be specified from time to time by Company Order upon the telephonic, electronic or written order of persons designated in such Company Order, supplemental indenture or resolution of the Board of Directors (any such telephonic or electronic instructions to be promptly confirmed in writing by such persons) and that such persons are authorized to determine, consistent with such Company Order, supplemental indenture or resolution of the Board of Directors, such terms and conditions of said Securities as are specified in such Company Order, supplemental indenture or resolution of the Board of Directors. (h) Each Depositary designated pursuant to clause (9) of Section 2.01 for a Global Security in registered form, at the time of its designation and at all times while it serves as Depositary, shall be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation. Section 2.05. Execution of Securities. (a) The Securities and the related coupons shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman of the Board, its Chief Executive Officer or its President or, in lieu thereof, of any Senior Vice President or its Treasurer and attested by its Secretary, under its corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise). For the purpose of any such signature or attestation, the Company may adopt and use the facsimile signature of any person who has been or is or shall be such officer. (b) No Security or attached coupon shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose unless such security bears thereon a certificate of authentication substantially in the form set forth in Section 2.02 manually executed by the authorized signatory of the Trustee. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered under this Indenture. Except as permitted by Section 2.07, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. Notwithstanding the foregoing, if any Security or portions thereof shall have been duly authenticated and delivered hereunder but never issued and sold by the Company (whether because of failure of settlement or otherwise), and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.10 together with a written statement stating that such Security or portion thereof has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to the benefits of this Indenture. (c) In case any officer of the Company whose manual or facsimile signature appears on any of the Securities or coupons shall cease to be such officer before the Securities or coupons so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities or coupons nevertheless may be authenticated and delivered or disposed of as though the person whose manual or facsimile signature appears on such Securities or coupons had not ceased to be such officer -11- of the Company; and any Security or coupon may bear the manual or facsimile signature on behalf of the Company by such persons as, at the actual date of the execution of such Security or coupon, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer. Section 2.06. Exchange and Registration of Transfer of Securities. (a) Registered Securities of any series may be exchanged for a like aggregate principal amount of Registered Securities of other authorized denominations and of like tenor and terms of the same series. Registered Securities to be exchanged shall be surrendered at the office or agency to be maintained by the Company pursuant to Section 3.02 in each Place of Payment for such series of Registered Securities, and the Company shall execute and cause to be registered, and the Trustee shall authenticate and deliver in exchange therefor, the Registered Security or Securities which the Securityholder making the exchange shall be entitled to receive. In no event may Registered Securities, including Registered Securities received in exchange for Bearer Securities, be exchanged for Bearer Securities. (b) For each series of Registered Securities, the Company shall cause to be kept in at least one such office or agency a Security register (the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for registration of Registered Securities and registration of transfer of Registered Securities as provided in this Article Two. Each such Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times such Security Registers shall be open for inspection by the Trustee. Upon due presentment for registration of transfer of any Registered Security of any series at any such office or agency, the Company shall execute and register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Registered Security or Securities of the same series and of like tenor and terms for an equal aggregate principal amount. Unless otherwise provided (pursuant to Section 2.01 or otherwise), the Company initially appoints the Trustee, at the principal office of the Trustee, as a Security registrar for each series of Registered Securities. (c) All Registered Securities presented for registration of transfer or for exchange or payment, if so required by the Company or the Trustee, shall be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized in writing. (d) To the extent specified in the manner provided by Section 2.01, Registered Securities or Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified in the manner contemplated by Section 2.01 with respect to a Bearer Security in global form) of the same series, of any authorized denomination and of like tenor and terms and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any office or agency specified in the manner provided by Section 2.01, with all unmatured coupons and all unpaid matured coupons thereto appertaining. If the holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or unpaid matured coupon or coupons, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the amount represented by such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to hold harmless each of them and any Paying Agent. If thereafter the holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 3.02, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Whenever any Securities are so surrendered for exchange, the -12- Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the holder making the exchange is entitled to receive. (e) If at any time the Depositary for the Global Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Global Securities of such series or if at any time the Depositary for the Registered Securities of such series shall no longer be eligible under Section 2.03 because it no longer is a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Global Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election pursuant to Section 2.01(9) shall no longer be effective with respect to the Securities of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. (f) The Company at any time and in its sole discretion may determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. (g) If specified by the Company pursuant to Section 2.01 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and deliver: (i) to each Person specified by such Depositary a new Security or new Securities of the same series, of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (ii) to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to holders thereof. (h) In any exchange provided for in Section 2.06(e), 2.06(f) or 2.06(g), the Company will execute and the Trustee will authenticate and deliver Securities (i) in definitive registered form in authorized denominations, if the Securities of such series are issuable as Registered Securities, (ii) in definitive bearer form in authorized denominations, with unmatured coupons attached, if the Securities of such series are issuable as Bearer Securities or (iii) as either Registered or Bearer Securities, if the Securities of such series are issuable in either form; provided, however, that (A) no definitive Bearer Security shall be delivered in exchange for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a Bearer Security Tax Certificate, (B) delivery of a Bearer Security shall occur only outside the United States and (C) no -13- definitive Bearer Security will be issued if the Company or the Trustee has reason to know that such certificate is false. (i) Upon the exchange of all of the Global Security for Securities in certificated form, such Global Security shall be cancelled by the Trustee. The exchange of any portion of a Global Security for Securities in certificated form shall be subject to Section 2.03(a). Registered Securities issued in exchange for all or part of a Global Security shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Registered Securities to the persons in whose names such Securities are so registered. The Trustee shall deliver Bearer Securities issued in exchange for all or part of a Global Security to the persons, and in such authorized denominations, as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee; provided, however, that (A) no definitive Bearer Security shall be delivered in exchange for all or part of a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a Bearer Security Tax Certificate, (B) delivery of a Bearer Security shall occur only outside the United States and (C) no definitive Bearer Security will be issued if the Company or the Trustee has reason to know that any such certificate is false. (j) No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such exchange or registration of transfer. (k) The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any particular series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series selected for redemption under Section 10.03 and ending at the close of business on the day of such mailing, (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Registered Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series, provided that such Registered Security shall be surrendered immediately for redemption with written instruction for payment consistent with the provisions of this Indenture. (l) Notwithstanding anything herein to the contrary: the exchange of Bearer Securities for Registered Securities shall be subject to applicable laws and regulations in effect at the time of exchange; and neither the Company nor the Trustee or any Security registrar shall exchange any Bearer Securities into Registered Securities if it has received an Opinion of Counsel that as a result of such exchanges the Company could suffer adverse consequences under the United States Federal income tax laws and regulations then in effect and the Company has delivered to the Trustee a Company Order directing the Trustee not to make such exchanges thereafter unless and until the Trustee receives a subsequent Company Order to the contrary. The Company shall deliver copies of such Company Order to the Security registrar. Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. (a) In case any temporary or definitive Security of any series or any related coupon shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its request and in the absence of notice to the Company and the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Trustee shall authenticate and deliver a new Security of the same series or related coupon, of equal aggregate principal amount and of like tenor and terms bearing -14- a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security or coupon, or in lieu of and in substitution for the Security or coupon so destroyed, lost or stolen. In every case the applicant for a substitute Security or coupon shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to hold each of them harmless, and, in every case of destruction, loss or theft, the applicant also shall furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or coupon and of the ownership of such Security or coupon. (b) The Trustee may authenticate any such substitute Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substitute Security or coupon, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee) connected therewith. In case any Security or coupon which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company, instead of issuing a substitute Security or coupon, may pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to hold each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Security or coupon and of the ownership of such Security or coupon. (c) Every substitute Security or coupon issued pursuant to the provisions of this Section 2.07 by virtue of the fact that any Security or coupon is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security or coupon shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities or coupons duly issued under this Indenture. All Securities or coupons shall be held and owned by the holders upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. (d) Notwithstanding the foregoing, the payment of principal of and any premium or interest on Bearer Securities, except as otherwise provided in Section 3.02, shall be payable only at an office or an agency located outside of the United States, and, with respect to any coupons, interest represented thereby shall be payable only upon presentation and surrender of such coupons. Section 2.08. Temporary Securities. (a) Pending the preparation of definitive Securities of any series, the Company may execute and the Trustee shall authenticate and deliver temporary Securities (printed or lithographed). Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the definitive Securities of such series (and of like tenor and terms) in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without coupons, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Such temporary securities may be in global form, representing all or any part of the Outstanding Securities of such series. (b) Unless otherwise provided pursuant to Section 2.01: -15- (i) Except in the case of temporary Securities in global form, every such temporary Security shall be authenticated by the Trustee in substantially the same manner, and with the same effect, as the definitive Securities. Without unreasonable delay the Company will execute and deliver to the Trustee definitive Securities of such series and thereupon any or all temporary Securities of such series (accompanied, if applicable, by all unmatured coupons and all unpaid matured coupons appertaining thereto) may be surrendered in exchange therefor at the principal office of the Trustee, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series of authorized denominations. Such exchange shall be made at the Company's expense and without any charge to the holder. Until so exchanged, the temporary Securities of any series in all respects shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered under this Indenture. Notwithstanding the foregoing, no Bearer Security shall be delivered in exchange for a Registered Security, and a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the conditions set forth in Section 2.06. (ii) If Securities of any series are issued in temporary global form, any such temporary Global Security, unless otherwise provided pursuant to Section 2.01, shall be delivered to the Depositary for the benefit of Euroclear and CEDEL for credit to the respective accounts of the beneficial owners of such Securities or to such other accounts as they may direct. (iii) Any such temporary Global Security shall be exchangeable, on the terms and in the manner set forth therein, in whole or in part, for an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor and terms as the portions of such temporary Global Security to be exchanged. Any definitive Bearer Securities shall be delivered in exchange for a portion of a temporary Global Security only outside the United States and only upon receipt by the Trustee from the Person entitled to receive such definitive Bearer Security of a Bearer Security Tax Certificate. (iv) Until exchanged in full as hereinabove provided, the temporary Securities of any series shall be entitled in all respects to the same benefits under this Indenture as definitive Securities of the same series and of like tenor and terms authenticated and delivered hereunder, except that any interest payable with respect to a temporary Global Security will be paid as specified therein. Section 2.09. Payment of Interest; Interest Rights Preserved. Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such series after the close of business (at an office or agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business (at such office or agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the holder of such coupon when due in accordance with the provisions of this Indenture. Payment of interest on any Registered Security may be made as provided in Section 3.02. Any interest on any Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date ("Defaulted Interest") forthwith shall cease to be payable to the Holder on -16- the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below: (i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more that 15 nor less than ten days prior to the date of the proposed payment and not less than ten days after the receipt by the Trustee of the notice of the proposed payment. The Trustee promptly shall notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class, postage prepaid, to each Security Holder at his address as it appears in the Security Register, not less than ten days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been given as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (ii). (ii) The Company may make payment of any Defaulted Interest on any such Security in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of that series may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section 2.09, each Security of any series delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. Subject to the limitations set forth in Section 3.02, the holder of any coupon appertaining to a Bearer Security shall be entitled to receive the interest payable on such coupon upon presentation and surrender of such coupon on or after the Interest Payment Date of such coupon at an office or agency maintained for such purpose pursuant to Section 3.02. Section 2.10. Cancellation of Securities Paid, etc. All Securities and coupons surrendered for the purpose of payment, exchange or registration of transfer, if surrendered to the Company or any Paying Agent or any Security registrar, shall be delivered to the Trustee and promptly cancelled by the Trustee or, if surrendered to the Trustee, promptly shall be cancelled by it; and no Securities or coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee may destroy cancelled Securities or coupons and will deliver a certificate of such destruction to the Company. -17- ARTICLE THREE PARTICULAR COVENANTS OF THE COMPANY Section 3.01. Payment of Principal and Interest. The Company duly and punctually will pay or cause to be paid the principal of and any premium and interest on the Securities of each series at the places, at the respective times and in the manner provided in this Indenture and in the Securities. Any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. Section 3.02. Offices for Notices and Payments, etc. So long as any Securities of a series remain Outstanding, the Company will maintain in each Place of Payment for such series of Securities an office or agency where the Securities of that series (but, except as otherwise provided below, unless such Place of Payment is located outside the United States, not Bearer Securities) may be presented for payment, for registration of transfer and for exchange as provided in this Indenture and where notices and demands to or upon the Company in respect of the Securities or of this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series that is located outside the United States where Securities of such series and the related coupons may be presented for payment. The Company will give to the Trustee prompt written notice of the location of each such office or agency and of any change of location thereof. In case the Company shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the principal office of the Trustee, and the Company hereby initially appoints the Trustee its agent to receive all such presentations and demands, except that Bearer Securities of that series and the related coupons may be presented for payment at the place specified for that purpose pursuant to Section 2.01(5). Unless otherwise provided pursuant to Section 2.01, the Company hereby initially designates as the Place of Payment for each series of Securities (other than Bearer Securities of that series and the related coupons) the Borough of Manhattan, The City of New York, New York and appoints the office or agency of the Trustee as Paying Agent in such city. Notwithstanding any other provisions to the contrary, the Company at its option may make payment of principal and any premium and interest with respect to any Registered Security by check mailed to the Person entitled thereto, as such address appears on the Security Register, except that a holder of $10,000,000 or more in aggregate principal amount of Securities of such series and of like tenor and terms will be entitled to receive payments by wire transfer of immediately available funds if appropriate wire transfer instructions shall have been received in writing by the Trustee not later than ten Business Days prior to the applicable Interest Payment Date. No payment of principal of or any premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that payment of principal of and any premium and interest on any Bearer Security may be made at an office or agency of, and designated by, the Company located in the United States if (but only if) payment of the full amount of such principal, premium or interest at all offices outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions and the Trustee receives an Opinion of Counsel that such payment within the United States is legal. Unless otherwise provided as contemplated by Section 2.01 with respect to any series of Securities, at the option of the holder of any Bearer Security or related coupon payment may be made by mailing a check to an address outside the United States or by transfer to an account maintained by the payee with a bank located outside the United States. -18- The Company also from time to time may designate one or more offices or agencies (in or outside of such Place of Payment) where the Securities of one or more series and any appurtenant coupons (subject to the preceding paragraph) may be presented or surrendered for any and all such purposes, and from time to time may rescind such designations. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such office or agency. Section 3.03. Provisions as to Paying Agent. (a) The Company, with respect to the Securities of each series, prior to each due date of principal of or any premium or interest on such Securities, will deposit with the Paying Agent for such Securities a sum sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust for the benefit of the persons entitled to such principal, premium or interest. If the Company shall appoint a Paying Agent other than the Trustee with respect to the Securities of any series, the Company will notify the Trustee of its making, or failure to make, any such payment; and the Company also shall cause any such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 3.03, as follows: (1) that it will hold all sums held by it as such agent for the payment of the principal of or any premium or interest on such Securities (whether such sums have been paid to it by the Company or by any other obligor on such Securities) in trust for the benefit of the Persons entitled thereto; (2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on such Securities) to make any payment of the principal of or any premium or interest on such Securities when the same shall be due and payable; and (3) that it will forthwith pay to the Trustee, at any time during the continuance of an Event of Default, upon the written request of the Trustee, all sums so held by it as such agent. (b) If the Company shall act as its own Paying Agent with respect to the Securities of any series, on or before each due date of the principal of or any premium or interest on the Securities of such series, it will set aside, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay such principal, premium or interest so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor under such Securities) to make any payment of the principal of or any premium or interest on such Securities when the same shall become due and payable. (c) Notwithstanding anything in this Section 3.03 to the contrary, the Company, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture or for any other reason, may pay or by Company Order direct any Paying Agent to pay to the Trustee all sums held in trust by the Company or any Paying Agent under this Indenture, such sums to be held by the Trustee upon the trusts contained in this Indenture. (d) Notwithstanding anything in this Section 3.03 to the contrary, the agreement to hold sums in trust as provided in this Section 3.03 is subject to Sections 13.03 and 13.04. Section 3.04. Statement as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each calendar year commencing with the first calendar year following the issuance of Securities of any series under this Indenture, a written certificate of the principal executive officer, the principal financial officer or the principal accounting officer of the Company, covering the period from -19- the date of issuance of such Securities to the end of the calendar year in which such Securities were issued, in the case of the first such certificate, and covering the preceding calendar year, in the case of each such subsequent certificate, stating, as to each signer of such certificate, that: (1) a review of the activities of the Company during the year and of performance under this Indenture has been made under his supervision; (2) to the best of his knowledge, based on such review, the Company has fulfilled all its conditions and covenants under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such condition or covenant, specifying each such default known to him and the nature and status of such default; and (3) such certificate sets forth as of the end of such year a list of all Principal Constituent Banks. Section 3.05. Notice of Certain Defaults. The Company will deliver to the Trustee within five days after the occurrence thereof written notice of any event which with the giving of notice or the lapse of time or both would be an Event of Default under Section 4.01(c) or Section 4.01(d). Section 3.06. Limitation on Certain Dispositions and on Merger and Sale of Assets. Except as otherwise provided in Article Nine, the Company will not: (a) sell, assign, transfer or otherwise dispose of any shares of, or securities convertible into or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of a Principal Constituent Bank, and will not permit a Principal Constituent Bank to issue any shares of, or securities convertible into or options, warrants or rights to subscribe for or purchase shares of, such Voting Stock if, in each case, after giving effect to any such transaction, such Principal Constituent Bank would cease to be a Controlled Subsidiary; or (b) permit a Principal Constituent Bank to: (i) merge or consolidate with any other corporation, unless the surviving corporation is, or upon consummation of the merger or consolidation will become, the Company or a Controlled Subsidiary; or (ii) lease, sell or transfer all or substantially all its properties and assets to any corporation or other Person, except to the Company or a Controlled Subsidiary or a Person that, upon such lease, sale or transfer, will become the Company or a Controlled Subsidiary. Notwithstanding the foregoing, any such sale, assignment, transfer or other disposition of securities, any such merger or consolidation or any such lease, sale or transfer of properties and assets shall not be prohibited if required (i) by any law or any rule, regulation or order of any governmental agency or authority or (ii) as a condition imposed by any law or any rule, regulation or order of any governmental agency or authority with respect to the acquisition by the Company or any Controlled Subsidiary, directly or indirectly, through purchase of securities or assets, or a merger, consolidation or otherwise, of any Person, provided that after giving effect to such acquisition (A) such Person will be a Controlled Subsidiary, (B) the Consolidated Net Banking Assets of the Company will be at least equal to the Consolidated Net Banking Assets of the Company prior thereto and (C) the Principal Constituent Bank will be a Controlled Subsidiary. -20- Section 3.07. Limitation on Creation of Liens. So long as any of the Securities shall be Outstanding, the Company will not create, assume, incur or suffer to be created, assumed or incurred or to exist any pledge, encumbrance or lien, as security for indebtedness for borrowed money, upon any shares of, or securities convertible into or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of a Principal Constituent Bank if, treating such pledge, encumbrance or lien as a transfer of the shares of, or securities convertible into or options, warrants or rights to subscribe for or purchase shares of, Voting Stock subject thereto to the secured party, the Principal Constituent Bank would not be a Controlled Subsidiary. Section 3.08. Corporate Existence. Except as otherwise provided in Article Nine, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Securityholders. ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT Section 4.01. Events of Default. "Event of Default," when used with respect to Securities of any series, means each of the following events unless it is either inapplicable to a particular series or is specifically deleted or modified in the supplemental indenture or resolution of the Board of Directors under which such series of Securities is issued or in the form of Security for such series: (a) default in the payment of any installment of interest upon any of the Securities of that series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; (b) default in the payment of the principal of or any premium on any of the Securities of that series as and when the same shall become due and payable at their Stated Maturity, upon redemption, by declaration or otherwise; (c) default in the payment of any sinking fund installment or analogous obligation as and when the same shall become due and payable by the terms of the Securities of that series; (d) a default or event of default as defined or designated in any mortgage, indenture, loan agreement or instrument under which there may be issued or borrowed, or by which there is secured or evidenced, any indebtedness of the Company (other than Securities of such series or indebtedness owed by the Company to any Subsidiary) or any Subsidiary (other than indebtedness of any Subsidiary owing to the Company or to another Subsidiary), whether such indebtedness now exists or shall be created hereafter, shall happen and (i) not less than $20,000,000 of such indebtedness shall be past due under such mortgage, indenture, loan agreement or instrument or such default or event of default shall result in not less than $20,000,000 of such indebtedness becoming or being declared due and payable and (ii) such indebtedness or such declaration, as the case may be, shall not have been discharged or rescinded or annulled within 30 days after the date on which written notice thereof is given to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of the Securities of that series then Outstanding; -21- (e) a final judgment or judgments or order or orders for the payment of money in excess of $20,000,000 shall be entered against the Company or one or more Principal Constituent Banks and within 90 days after entry thereof such judgment or judgments or order or orders shall not have been discharged or the execution thereof stayed pending appeal or within 90 days after the expiration of any such stay such judgment or judgments or order or orders shall not have been discharged; (f) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Securities of such series or in this Indenture (other than a covenant or agreement a default in the performance of which or the breach of which is specifically provided for elsewhere in this Section 4.01 or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than such series), and continuance of such failure for a period of 90 days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of the Securities of such series at the time Outstanding; (g) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or a Principal Constituent Bank in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or a Principal Constituent Bank or for any substantial part of its property, or ordering the winding up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (h) the Company or a Principal Constituent Bank shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or a Principal Constituent Bank or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any of the foregoing. If an Event of Default with respect to the Securities of any series at the time Outstanding occurs and is continuing, then and in each such case, unless the principal of all the Securities of such series already shall have become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the principal amount of all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. This provision, however, is subject to the condition that, at any time after such a declaration of acceleration, and before any judgment or decree for the payment of the money due shall have been obtained or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences, if: (1) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay: (A) all matured installments of interest on all the Securities of that series and the principal of and any premium on any and all Securities of that series that shall have become due otherwise than by acceleration (with interest on overdue installments of -22- interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium at the rate borne by the Securities of that series, to the date of such payment or deposit); and (B) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (2) any and all defaults with respect to Securities of that series under this Indenture, other than the nonpayment of principal of and accrued interest on Securities that shall have become due by acceleration, shall have been cured or waived as provided in Section 4.07. No such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. In case the Trustee or any Securityholder shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee or any Securityholder, then and in every such case the Company, the Trustee and such Securityholders, subject to any determination in such proceeding, shall be restored respectively to their several positions and rights under this Indenture, and all rights, remedies and powers of the Company, the Trustee and such Securityholders shall continue as though no such proceeding had been taken. Section 4.02. Payment of Securities on Default; Suit Therefor. (a) In case default shall be made in the payment of (i) any installment of interest upon any of the Securities as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (ii) the principal of or any premium on any of the Securities as and when the same shall have become due and payable whether at Maturity of the Securities, by declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities, the whole amount that then shall have become due and payable on all such Securities for principal, premium or interest, or any combination thereof, as the case may be, with interest upon the overdue principal and premium and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest, at the rate borne by the Securities; and, in addition, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation, expenses, disbursements and advances of the Trustee, its agents, attorneys and counsel. (b) In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor on the Securities and coupons and collect in the manner provided by law out of the property of the Company or any other obligor on the Securities and coupons, wherever situated, the money adjudged or decreed to be payable. (c) In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities and coupons under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial proceedings -23- relative to the Company or other obligor on the Securities and coupons, or to the creditors or property of the Company or such other obliger, the Trustee, irrespective of whether the principal of the Securities shall then be due and payable as expressed in the Securities or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 4.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and any premium and interest owing and unpaid in respect of the Securities, and, in case of any judicial proceedings, (i) to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Securityholders allowed in such judicial proceedings relative to the Company or any other obligor on the Securities and coupons, its or their creditors, or its or their property, and (ii) to collect and receive any money or other property payable or deliverable on any such claims, and to distribute the same after the deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Securityholders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee any amount due it for reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel and any other amounts due the Trustee under Section 5.06. To the extent that such payment of reasonable compensation, expenses and counsel fees out of the trust estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other property which the holders of the Securities and coupons may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise. (d) Nothing contained in this Section 4.02 shall be deemed to authorize the Trustee to authorize or consent to or adopt on behalf of any Securityholder any plan of reorganization or arrangement affecting the Securities or related coupons or the rights of any Securityholder, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding; provided, however, that the Trustee may, on behalf of the Securityholders, vote for the election of a trustee in bankruptcy or similar official and may be a member of the creditors' committee. (e) All rights of action and of asserting claims under this Indenture, or under any of the Securities or related coupons, may be enforced by the Trustee without the possession of any of the Securities or coupons, or the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of the holders of the Securities and related coupons. Section 4.03. Application of Money Collected By Trustee. Any money collected by the Trustee with respect to any series of Securities or related coupons pursuant to Section 4.02 shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such money, upon presentation of the several Securities of such series or coupons, or both, as the case may be, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid: FIRST: To the payment of all amounts then due the Trustee under Section 5.06; SECOND: In case the principal of the Outstanding Securities of that series shall not have become due and be unpaid, to the payment of interest on the Securities of that series in the order of the Maturity of the installments of such interest, with interest (to the extent enforceable under applicable law) upon the overdue installments of interest at the rate borne by the Securities of that series, such payments to be made ratably to the persons entitled thereto; and -24- THIRD: In case the principal of the Outstanding Securities of that series shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Securities of that series for principal and any premium and interest, with interest on the overdue principal and any premium and (to the extent enforceable under applicable law) upon overdue installments of interest at the rate borne by the Securities of that series; and in case such money shall be insufficient to pay in full the whole amounts so due and unpaid upon the Securities of that series, then to the payment of such principal and any premium and interest without preference or priority of principal over interest, or of interest over principal, or of any premium over principal or interest, or of principal or interest over any premium or of any installment of interest over any other installment of interest, or of any Security of that series over any other Security of that series, or of any coupon related to a Security of a series over any other coupon related to a Security of the same series, ratably to the aggregate of such principal and any premium and accrued and unpaid interest. Section 4.04. Proceedings by Securityholders. No holder of any Security of any series or any related coupon shall have any right to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy under this Indenture, unless such holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as provided in Section 4.01, and unless also (i) the holders of not less than 25% in aggregate principal amount of the Securities of that series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee under this Indenture and shall have offered to the Trustee such reasonable indemnity as the Trustee may require against the costs, expenses and liabilities to be incurred in compliance with such request, (ii) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and (iii) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the holders of a majority in principal amount of the Outstanding Securities of that series; it being understood and intended, and being expressly covenanted by each Person who acquires and holds a Security or related coupon with every other such Person, that no one or more holders of Securities of any series shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other holder of such Securities or coupons, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner provided in this Section 4.04 and for the equal, ratable and common benefit of all holders of Securities and coupons of such series. Notwithstanding any other provision of this Indenture, however, the right of any holder of any Security to receive payment of the principal of and any premium and interest on such Security on or after the respective Stated Maturities, or to institute suit for the enforcement of any such payment on or after such respective dates against the Company, shall not be impaired or affected without the consent of such holder. Section 4.05. Proceedings by Trustee. In case of an Event of Default under this Indenture, the Trustee in its discretion may proceed to protect and enforce its rights and the rights of the Securityholders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other proper remedy or legal or equitable right vested in the Trustee by this Indenture or by law. -25- Section 4.06. Remedies Cumulative and Continuing; Delay or Omission Not Waiver. All rights, powers and remedies conferred upon or reserved to the Trustee or to the Securityholders, to the extent permitted by law, shall be deemed cumulative and not exclusive of any thereof or of any other rights, powers and remedies available to the Trustee or the holders of the Securities and related coupons, now or hereafter existing, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture; and no delay or omission of the Trustee or of any holder of any of the Securities or related coupons to exercise any such right, power or remedy shall impair any such right, power or remedy, or shall be construed to be a waiver of any default or an acquiescence in such default; and subject to the provisions of Section 4.04, every power and remedy conferred upon or reserved to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders. The assertion of any right, power or remedy shall not prevent the concurrent assertion of any other right, power or remedy. Section 4.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders. (a) The holders of a majority in aggregate principal amount of the Securities of all series affected (voting as one class) at the time Outstanding determined in accordance with Section 6.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee; provided, however, that (i) such direction may not be in conflict with law or this Indenture or expose the Trustee to personal liability or be unduly prejudicial to the holders of the Securities and related coupons not joining in the direction, it being understood (subject to Section 6.01) the Trustee shall have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such holders, and (ii) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with this Indenture and such direction. (b) Prior to any declaration that the principal of the Outstanding Securities of any series is due and payable, the holders of a majority in aggregate principal amount of the Securities of that series at the time Outstanding on behalf of the holders of all of the Securities of that series may waive any past default or Event of Default under this Indenture and its consequences except a default under a covenant in this Indenture that, pursuant to Section 8.02, cannot be modified without the consent of each holder of a Security of the series affected thereby. Upon any such waiver the Company, the Trustee and the holders of the Securities of that series and the related coupons shall be restored to their former positions and rights under this Indenture, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default under this Indenture shall have been waived as permitted by this Section 4.07, such default or Event of Default, for all purposes of the Securities, the related coupons and this Indenture, shall be deemed to have been cured and to be not continuing. Section 4.08. Notice of Defaults. The Trustee, within 90 days after the occurrence of a default with respect to Securities of any series, shall mail to all Securityholders of that series, at their addresses shown on the Security Register, notice of all such defaults known to the Trustee, unless such defaults shall have been cured or waived before the giving of such notice (the term "defaults" for the purpose of this Section 4.08 being hereby defined to mean the events which constitute or after notice or lapse of time or both would constitute an Event of Default); and provided that, except in the case of default in the payment of the principal of or any premium or interest on any of the Securities of that series or in the making of any sinking fund payment or analogous obligation with respect to Securities of that series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Securityholders of that series. -26- Section 4.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court in its discretion may require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided, however, that the provisions of this Section 4.09 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of that series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or any premium or interest on any Security on or after the respective Stated Maturities (or, in the case of redemption or repayment, on or after the redemption date or repayment date). ARTICLE FIVE CONCERNING THE TRUSTEE Section 5.01. Duties and Responsibilities of Trustee. In case an Event of Default has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. No provisions of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, its own willful misconduct or any action or failure to act taken or omitted by it in bad faith, except that: (a) except during the continuance of an Event of Default: (1) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions of this Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding (determined as provided in Section 6.04) -27- relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 5.01. The provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act. Section 5.02. Reliance on Documents, Opinions, etc. Subject to the applicable provisions of the Trust Indenture Act and in furtherance thereof and subject to the provisions of Section 5.01: (a) the Trustee may rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer's Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; (c) the Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it under this Indenture in good faith and in accordance with such Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonable to it against the costs, expenses and liabilities that may be incurred therein or thereby; (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books and records of the Company to the extent reasonably necessary to verify such facts or matters; -28- (g) the Trustee may execute any of the trusts or powers under this Indenture or perform any duties under this Indenture either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care under this Indenture; (h) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; (i) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty; and (j) except for (i) a default under Sections 5.01(a), (b) or (c) hereof, or (ii) any other event of which the Trustee has "actual knowledge" and which event, with the giving of notice or the passage of time or both, would constitute an Event of Default under this Indenture, the Trustee shall not be deemed to have notice of any default or Event of Default unless specifically notified in writing of such event by the Company or any Holder of the Securities then outstanding; as used herein, the term "actual knowledge" means the actual fact or statement of knowing, without any duty to make any investigation with regard thereto. Section 5.03. No Responsibility for Recitals, etc. The recitals contained in this Indenture and in the Securities (except in the Trustee's certificate of authentication) and in any coupons shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the coupons. The Trustee shall not be accountable for the use or application by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee. Section 5.04. Trustee, Paying Agents or Registrar May Own Securities. Subject to the applicable provisions of the Trust Indenture Act, the Trustee or any Paying Agent or Security registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent or Security registrar. Section 5.05. Money to be Held in Trust. Subject to the provisions of Sections 13.03 and 13.04, all money received by the Trustee, until used or applied as herein provided, shall be held in trust for the purposes for which it was received. Money held by the Trustee need not be segregated from other funds except as provided by law. The Trustee shall be under no liability for interest on any money received by it under this Indenture, provided that the Trustee pays to the Persons entitled thereto all such money when due and payable. Section 5.06. Compensation and Expenses of Trustee. The Company will pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it under this Indenture (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct. The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending itself or investigating against any claim of liability in connection with the exercise or performance of any of its powers under this Indenture, including the costs and expenses of collection. The obligations of the Company under this Section 5.06 shall constitute additional indebtedness under this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) and interest on particular Securities, and the Securities are hereby subordinate to such prior claim. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Article Five hereof, the expenses (including reasonable fees and expenses of its counsel) and the compensation for the services in connection therewith are intended to constitute expense of administration under any applicable bankruptcy law. Section 5.07. Officers' Certificate as Evidence. Subject to the provisions of Section 5.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action under this Indenture, such matter (unless other evidence in respect thereof be herein specifically prescribed), in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, may be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such Officers' Certificate, in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith of such Officers' Certificate. -29- Section 5.08. Eligibility of Trustee. The Trustee under this Indenture shall at all times be a corporation organized and doing business under the laws of the United States or any State thereof or of the District of Columbia (or a corporation or other person permitted to act as Trustee by the Commission) authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 5.08 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 5.08, the Trustee shall resign immediately in the manner and with the effect specified in Section 5.09. Neither the Company nor any person directly or indirectly controlling, controlled by, or under common control with the Company shall serve as Trustee under this Indenture. Section 5.09. Resignation or Removal of Trustee. (a) The Trustee may resign at any time by giving written notice of such resignation to the Company, by mailing notice of such resignation to the holders of Registered Securities at their addresses as they shall appear on the Security Register and, if any Bearer Securities are Outstanding, by publishing notice of such resignation in a newspaper of general circulation, in each place of payment for such Bearer Securities, customarily published at least once a day for at least five days in each calendar week. (b) In case at any time any of the following shall occur: (1) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six months, or (2) the Trustee shall cease to be eligible in accordance with the provisions of Section 5.08 and shall fail to resign after written request therefor by the Company or by any such Securityholder, or (3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed or a public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Company may remove the Trustee by written instrument, executed by Company Order authorized by the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee (with written notice of such removal mailed to the holders of Registered Securities at their address as they shall appear on the Security Register), or, subject to the provisions of Section 4.09, any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (c) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company promptly shall appoint a successor Trustee by a Company Order authorized by the Board of Directors, one copy of which instrument shall be delivered to the retiring Trustee and one copy to the successor Trustee. If, within one year after such -30- resignation, removal or incapability or the occurrence of such vacancy, a successor Trustee shall be appointed by the holders of a majority in principal amount of the Securities (voting as a single class) at the time Outstanding by instrument or instruments delivered to the Company and the retiring Trustee, the successor Trustee so appointed, forthwith upon its acceptance of such appointment, shall become the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Securityholders and accepted appointment in the manner provided in Section 5.10 within 60 days after notice of the resignation or removal of the Trustee is mailed to the Securityholders, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months, subject to the provisions of Section 4.09, on behalf of himself and all others similarly situated, may petition any court of competent jurisdiction for the appointment of a successor Trustee. (d) The holders of a majority in aggregate principal amount of the Securities (voting as a single class) at the time Outstanding at any time may remove the Trustee. (e) Any removal of the Trustee and appointment of a successor Trustee pursuant to any of the provisions of this Section 5.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.10. Any resignation of the Trustee shall become effective only upon the appointment of a successor Trustee and upon the acceptance of appointment by the successor Trustee as provided in Section 5.10. Section 5.10. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 5.09 shall execute, acknowledge and deliver to the Company and to its predecessor Trustee an instrument accepting such appointment under this Indenture, and thereupon the resignation or removal of the predecessor Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor under this Indenture, with like effect as if originally named as Trustee in this Indenture; but, nevertheless, on the written request of the Company or of the successor Trustee, the Trustee ceasing to act, upon payment of any amounts then due it pursuant to the provisions of Section 5.06, shall execute and deliver an instrument transferring to such successor Trustee all the rights and powers of the Trustee so ceasing to act and shall transfer, assign and deliver to such successor all property and money held by such predecessor Trustee under this Indenture. Upon request of any such successor Trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act, nevertheless shall retain a lien upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to the provisions of Section 5.06. No successor Trustee shall accept appointment as provided in this Section 5.10 unless at the time of such acceptance such successor Trustee shall be qualified under the provisions of Section 310(a) of the Trust Indenture Act and eligible under the provisions of Section 5.08. Upon acceptance of appointment by a successor Trustee as provided in this Section 5.10, the Company shall mail notice of the succession of such Trustee under this Indenture to the holders of Registered Securities at their addresses as they shall appear on the Security Register. If the Company fails to mail such notice within ten days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the Company. Section 5.11. Succession by Merger, etc. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, -31- conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all corporate trust business of the Trustee, shall be the successor Trustee under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties to this Indenture provided such corporation shall be qualified under the provisions of Section 310(a) of the Trust Indenture Act and eligible under the provisions of Section 5.08. In case at the time such successor Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor Trustee may authenticate such Securities either in the name of any predecessor Trustee under this Indenture or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation. ARTICLE SIX CONCERNING THE SECURITYHOLDERS Section 6.01. Action by Securityholders. Whenever in this Indenture it is provided that the holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the holders of such specified percentage have joined in such action may be evidenced (i) by any instrument or any number of instruments of similar tenor executed by Securityholders in person or by agent or proxy appointed in writing, (ii) by the record of the holders of Securities voting in favor of such action at any meeting of Securityholders duly called and held in accordance with the provisions of this Article Six or (iii) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders. The Company may set a record date for purposes of determining the identity of holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall be the later of ten days prior to the first solicitation of such consent or the date of the most recent list of holders furnished prior to such solicitation pursuant to the provisions of Section 312(a) of the Trust Indenture Act. If a record date is fixed, those persons who were holders of Securities at such record date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be holders after such record date. No such vote or consent shall be valid or effective if such vote occurs or such consent is obtained more than 120 days after such record date. Section 6.02. Proof of Execution by Securityholders. (a) Subject to the provisions of Sections 5.01, 5.02 and 7.05, proof of the execution of any instrument by a Securityholder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. (b) The ownership of Registered Securities of any series shall be proved by the Security Register of such Securities or by a certificate of the Security registrar of such series. -32- (c) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities in the amount and with the serial numbers therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (i) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (ii) such Bearer Security is produced to the Trustee by some other Person, (iii) such Bearer Security is surrendered in exchange for a Registered Security or (iv) such Bearer Security is no longer Outstanding. The fact and date of execution of any such instrument or writing, the authority of the Person executing the same and the principal amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may also be proved in any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section 6.02(c). (d) The record of any Securityholders' meeting shall be proved in the manner provided in Section 7.07. Section 6.03. Who Are Deemed Absolute Owners. Prior to due presentation of a Registered Security for registration of transfer, the Company, the Trustee, any Paying Agent and any Security registrar may treat the Person in whose name such Registered Security is registered as owner of such Registered Security for the purpose of receiving payment of principal of and any premium and (subject to Section 2.09) interest on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security is overdue and notwithstanding any notation of ownership or other writing on such Registered Security made by anyone other than the Company or any Security registrar, and neither the Company, the Trustee, any Paying Agent nor any Security registrar shall be affected by any notice to the contrary. All such payments so made to any such holder as shown in the Security Register, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for money payable upon any such Registered Security. The Company, the Trustee, any Paying Agent and any Security registrar may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or coupon is overdue, and neither the Company, the Trustee, any Paying Agent nor any Security registrar shall be affected by any notice to the contrary. All such payments so made to any such bearer shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for money payable upon any such Bearer Security. None of the Company, the Trustee, any Paying Agent or the Security registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Section 6.04. Company Owned Securities Disregarded. In determining whether the holders of the requisite aggregate principal amount of Securities have concurred in any direction, consent, waiver or other action under this Indenture, Securities that are owned by the Company or any other obligor on the Securities or by any person directly or indirectly controlling or controlled by or under direct or -33- indirect common control with the Company or any other obligor on the Securities shall be disregarded and deemed not to be Outstanding for the purpose of any such determination; provided, however, that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action, only Securities that the Trustee knows are so owned shall be so disregarded. Section 6.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the holders of the percentage in aggregate principal amount of the Securities of any or all series specified in this Indenture in connection with such action, any holder of a Security the serial number of which is shown by the evidence to be included in the Securities the holders of which have consented to such action, by filing written notice with the Trustee at the principal office of the Trustee and upon proof of holding as provided in Section 6.02, may revoke such action so far as concerns such Security. Except as provided in this Section 6.05 any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Security, irrespective of whether or not any notation in regard thereto is made upon such Security or any Security issued in exchange or substitution for such Security. ARTICLE SEVEN SECURITYHOLDERS' MEETINGS Section 7.01. Purposes of Meetings. A meeting of Securityholders of any or all series may be called at any time and from time to time pursuant to the provisions of this Article Seven for any of the following purposes: (1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default under this Indenture and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Four; (2) to remove the Trustee and nominate a successor Trustee pursuant to the provisions of Article Five; (3) to consent to the execution of an indenture or indentures supplemental to this Indenture pursuant to the provisions of Section 8.02; or (4) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Securities under any other provision of this Indenture or under applicable law. Section 7.02. Call of Meetings by Trustee. The Trustee at any time may call a meeting of Securityholders of any or all series to take any action specified in Section 7.01, to be held at such time and at such place in The City of New York for Registered Securities and the City of London, England for Bearer Securities, as the Trustee shall determine. Notice of every meeting of the Securityholders, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to holders, if any, of Registered Securities of each series affected at their addresses as they shall appear on the Security Register, and shall be provided to holders, if any, of Bearer Securities of each series affected by publication thereof in a newspaper of general circulation, in each Place of Payment for each such series, customarily published at least once a day for at least five days in -34- each calendar week. Such notice to holders of Registered Securities shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting. Such notice to holders of Bearer Securities shall be made by the required publication on at least two dates, the first such publication to be not more than 90 days and the second such publication to be not less than 20 days prior to the date fixed for the meeting. Any meeting of Securityholders shall be valid without notice if the holders of all Securities then Outstanding of each series affected are present in person or by proxy or if notice is waived before or after the meeting by the holders of all Outstanding Securities of each series affected, and if the Company and the Trustee are either present by duly authorized representatives or, before or after the meeting, have waived notice. Section 7.03. Call of Meetings by Company or Securityholders. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the holders of at least 10% in aggregate principal amount of the Securities then Outstanding of any or all series, as the case may be, that may be affected by the action proposed to be taken, shall have requested the Trustee to call a meeting of Securityholders of any or all series, as the case may be, that may be so affected, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed or published (as appropriate under Section 7.02) the notice of such meeting within 20 days after receipt of such request, then the Company or such Securityholders may determine the time and the place in the city designated in Section 7.02, as the case may be, for such meeting and may call such meeting to take any action authorized in Section 7.01, by mailing or publishing notice of such meeting as provided in Section 7.02. Section 7.04. Qualifications for Voting. To be entitled to vote at any meeting of Securityholders of any series a person shall (i) be a holder of one or more Securities of such series as set forth in the Security Register for such series or (ii) be a person appointed by an instrument in writing as proxy by a holder of one or more Securities of such series, subject to the provisions of Section 6.02. The only persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. Section 7.05. Regulations. (a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. (b) The Trustee, by an instrument in writing, shall appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders as provided in Section 7.03, in which case the Company or the Securityholders calling the meeting, as the case may be, in like manner shall appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote. (c) Subject to the provisions of Section 6.04, at any meeting each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount of Securities. -35- (d) No vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Securities held by him or instruments in writing duly designating him as the person to vote on behalf of other Securityholders. Any meeting of Securityholders duly called pursuant to the provisions of Section 7.02 or 7.03 may be adjourned from time to time by a majority of those present and the meeting may be held as so adjourned without further notice. Section 7.06. Quorum. The Persons entitled to vote a majority in principal amount of the Outstanding Securities affected by the action proposed to be taken shall constitute a quorum for a meeting of such Securityholders. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting, if convened at the request of holders of Securities, shall be dissolved. In the absence of a quorum in any other case the meeting may be adjourned for a period of not less than ten days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than ten days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 7.02, except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities affected by the action proposed to be taken which shall constitute a quorum. Section 7.07. Voting. The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballots on which shall be subscribed the signatures of the holders of Securities or of their representatives by proxy and the principal amount of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to such record the original reports of the inspectors of votes on any vote by ballot taken at such meeting and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that such notice was mailed or published as provided in Section 7.02 or 7.03. The record shall show the principal amount of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee. Any record so signed and verified shall be conclusive evidence of the matters stated in such record. Section 7.08. No Delay of Rights by Meeting. Nothing in this Article Seven shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders or any rights expressly or impliedly conferred under this Article Seven to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders under any of the provisions of this Indenture or of the Securities. -36- ARTICLE EIGHT SUPPLEMENTAL INDENTURES Section 8.01. Supplemental Indentures Without Consent of Securityholders. The Company, when authorized by the resolutions of the Board of Directors, and the Trustee from time to time and at any time may enter into an indenture or indentures supplemental to this Indenture for one or more of the following purposes: (a) to evidence the succession of another corporation to the Company, or successive successions, and the assumptions by the successor corporation of the covenants, agreements and obligations of the Company pursuant to Article Nine; (b) to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the holders of any series of the Securities or coupons as the Board of Directors and the Trustee shall consider to be for the protection of the holders of such Securities or coupons, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a default or an Event of Default permitting the enforcement of all or any of the several remedies set forth in this Indenture; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default; (c) to cure any ambiguity or to correct or supplement any provision contained in this Indenture or in any supplemental indenture that may be defective or inconsistent with any other provision contained in this Indenture or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture that shall not adversely affect the interests of the holders of the Securities or any related coupons; (d) to establish the form or terms of Securities of any series as permitted by Section 2.01; (e) to add to, change or eliminate any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal or any premium on Registered Securities or of principal or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities or to permit or facilitate the issuance of Securities in uncertificated form, provided any such action shall not adversely affect the interests of the holders of Securities of any series or any related coupons; (f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture; provided, however, that such action shall not adversely affect the interests of the holders of the Securities of any series; (g) to provide for the documentation necessary for the issuance of Securities outside the United States of America; (h) to provide for the documentation necessary for the issuance of Securities at an issue price lower than the principal amount thereof, including to provide that upon the redemption or acceleration -37- of the Maturity thereof an amount less than the principal amount thereof shall become due and payable and that such amount shall be used to determine the relative voting rights of the holders thereof; or (i) to conform the Indenture to the provisions of the Trust Indenture Act as then in effect. The Trustee hereby is authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be contained in such supplemental indenture and to accept the conveyance, transfer and assignment of any property under such supplemental indenture, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture that affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Any supplemental indenture authorized by the provisions of this Section 8.01 may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding any provisions of Section 8.02. Section 8.02. Supplemental Indentures with Consent of Securityholders of a Series. With the consent (evidenced as provided in Section 6.01) of the holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected by such supplemental indenture or indentures, the Company, when authorized by the resolutions of the Board of Directors, and the Trustee from time to time and at any time may enter into an indenture or indentures supplemental to this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the holders of the Securities of each such series; provided, however, that without the consent of the holder of each Security affected thereby no such supplemental indenture shall: (a) change the Stated Maturity of the principal of or any premium or any installment of interest on, any Security, or reduce the principal amount of any Security or any premium or interest on any Security, or reduce the amount of principal payable upon acceleration of the Maturity of any Original Issue Discount Security, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest on any Security is payable, or impair the right to institute suit for the enforcement of any such payment on or after its Stated Maturity; (b) reduce the percentage in principal amount of Securities the consent of whose holders is required for any such supplemental indenture or the consent of whose holders is required for any waiver of compliance with certain provision of this Indenture or certain defaults under this Indenture and their consequences provided for in this Indenture; or (c) modify the provisions of Section 4.01 providing for the rescinding and annulment of a declaration accelerating the Maturity of the Securities of any series, or any of the provision of this Section 8.02 or Section 4.07(b), except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived. Upon the request of the Company, accompanied by a copy of the resolutions of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders of such series as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. It shall not be necessary for the consent of the Securityholders under this Section 8.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. -38- Section 8.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article Eight shall comply with the Trust Indenture Act as then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Eight, this Indenture shall be and be deemed to be modified and amended in accordance with such supplemental indenture and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of the series of Securities affected thereafter shall be determined, exercised and enforced under this Indenture subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. Section 8.04. Notation on Securities. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Eight may bear a notation in form acceptable to the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series and any related coupons so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange, as provided in Section 2.06, for the Outstanding Securities of such series and any related coupons, upon surrender of such Outstanding Securities of such series and any related coupons. Section 8.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee. The Trustee, subject to the provisions of Sections 5.01 and 5.02, shall be entitled to receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article Eight complies with the requirements of this Article Eight. ARTICLE NINE CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE Section 9.01. Company May Consolidate, etc., on Certain Terms. The Company shall not consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: (1) the corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer or which leases the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and expressly shall assume, by a supplemental indenture executed and delivered to the Trustee in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on the Securities, according to their terms, and the performance of every covenant of this Indenture and in such series on the part of the Company to be performed or observed; (2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and (3) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease -39- and supplemental indenture comply with this Article Nine and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Section 9.02. Successor Corporation Substituted. Upon any consolidation by the Company with or merger by the Company into any other corporation or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 9.01, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company in this Indenture, and thereafter, except in the case of a lease, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities of each series and any related coupons. Such successor corporation may cause to be signed, and may issue either in its own name or in the name of the Company prior to such succession, any of or all of the Securities of each series issuable under this Indenture which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation instead of upon the Company Order, and subject to all the terms, conditions and limitations in this Indenture, the Trustee shall authenticate and shall deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee on its behalf for that purpose. All the Securities so issued shall have in all respects the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all such Securities had been issued at the date of the execution of this Indenture. ARTICLE TEN REDEMPTION OF SECURITIES Section 10.01. Applicability of Article. Securities of any series that are redeemable before their Stated Maturity shall be redeemable only in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01 for Securities of any series) in accordance with this Article Ten. Section 10.02. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Company Order. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), shall notify the Trustee of such Redemption Date, of the tenor and terms of the Securities of such series to be redeemed and of the principal amount of such Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. Section 10.03. Selection by Trustee of Securities to be Redeemed. If less than all the Securities of any series of like tenor and terms specified by the Company are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and of such tenor and terms not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denominations for such -40- Securities or any integral multiple thereof) of the principal amount of such Registered Securities or such Bearer Securities or a denomination larger than the minimum authorized denomination for such Registered Securities or such Bearer Securities. The Trustee promptly shall notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. Section 10.04. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 7.02 not less than 30 nor more than 60 days prior to the Redemption Date. All notices of redemption shall state: (1) the Redemption Date; (2) the Redemption Price; (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed; (4) that on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after such date; (5) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons, if any, appertaining thereto maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price; (6) that Bearer Securities may be surrendered for payment only at such place or places that are outside the United States, except as provided in Section 3.02; and (7) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company. Section 10.05. Deposit of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 3.04(b)) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be the same date as the Stated Maturity of an installment of interest thereon) accrued interest on, all the Securities that are to be redeemed on that date; provided, however, that deposits with respect to Bearer Securities shall be made with a Paying Agent or Paying Agents located outside the United States except as otherwise provided in Section 3.02, unless otherwise specified as contemplated by Section 2.01. -41- Section 10.06. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall become due and payable, on the Redemption Date, at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that: (i) installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States except as otherwise provided in Section 3.02); and (ii) installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record date for the payment of such interest according to the terms of such Securities. If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to hold each of them and any Paying Agent harmless. If thereafter the holder of such Bearer Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such holder shall be entitled to receive the amount so deducted on account of such coupon without interest thereon; provided, however, that interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States except as otherwise provided in Section 3.02. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security or related coupon. Section 10.07. Registered Securities Redeemed in Part. Any Registered Security that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Security without service charge, a new Registered Security or new Registered Securities of the same series and of like tenor and terms, of any authorized denomination as requested by such holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. ARTICLE ELEVEN SINKING FUNDS Section 11.01. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.01 for Securities of such series. -42- The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of the Securities of such series. Section 11.02. Satisfaction of Sinking Fund Payments with Securities. If provided for by the terms of Securities of any series, the Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series that have been repurchased at the option of a holder or redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund, and the amount of such sinking fund payment shall be reduced accordingly. Section 11.03. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment of that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivery and crediting Securities of that series pursuant to Section 11.02 and also will deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 10.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 10.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 10.06 and 10.07. ARTICLE TWELVE REPAYMENT AT THE OPTION OF HOLDERS Section 12.01. Terms Set Forth in the Securities. Securities of any series which are repayable at the option of the holders thereof before their Stated Maturity shall be repaid in accordance with the terms set forth in such Securities. -43- ARTICLE THIRTEEN SATISFACTION AND DISCHARGE OF INDENTURE Section 13.01. Discharge of Indenture. When (a) the Company shall deliver to the Trustee for cancellation all Securities of any series and any related coupons theretofore authenticated (other than any Securities of such series and any related coupons that shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Securities or coupons shall have been authenticated and delivered) and not theretofore cancelled, or (b) all the Securities of any series and any related coupons not theretofore cancelled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit with the Trustee, in trust, funds (which thereupon shall become immediately due and payable to the holders of Securities or coupons) sufficient to pay upon Stated Maturity, redemption or repayment at the option of a holder all the Securities of such series and related coupons (other than any Securities of such series and related coupons that shall have been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.06) not theretofore cancelled or delivered to the Trustee for cancellation, including principal and any premium and interest due or to become due prior to such Stated Maturity, Redemption Date or date of repayment, as the case may be, but excluding, however, the amount of any money for the payment of principal of or any premium or interest on the Securities (1) theretofore deposited with the Trustee and repaid by the Trustee to the Company in accordance with the provisions of Section 13.04, or (2) paid to any State or the District of Columbia pursuant to its unclaimed property or similar laws, and if in either case the Company also shall pay or cause to be paid all other sums payable under this Indenture by the Company then this Indenture shall cease to be of further effect with respect to Securities of such series and any related coupons, and the Trustee, on demand of the Company accompanied by an Officer's Certificate and an Opinion of Counsel as required by Section 15.05 and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to Securities of such series and any related coupons. The obligations of the Company to the Trustee under Section 5.06 shall survive the termination of this Indenture. The Trustee shall notify the Securityholders of such series, at the expense of the Company, of the immediate availability of the amount referred to in clause (b) of this Section 13.01 by mailing a notice, first class postage prepaid, to the holders of Securities of such series at their addresses as they appear on the Security Register. Section 13.02. Deposited Money to be Held in Trust by Trustee. Subject to Section 13.04, all money deposited with the Trustee pursuant to Section 13.01 shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company if acting as its own Paying Agent, other than as to Bearer Securities, except as provided in Section 3.02), to the holders of the particular Securities and related coupons for the payment of which such money has been deposited with the Trustee, of all sums due and to become due thereon for principal and any premium and interest. Section 13.03. Paying Agent to Repay Money Held. Upon the satisfaction and discharge of this Indenture all money then held by any Paying Agent of the Securities (other than the Trustee), upon -44- demand of the Company, shall be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such money. Section 13.04. Return of Unclaimed Money. Any money deposited with or paid to the Trustee or any Paying Agent for payment of the principal of or any premium or interest on Securities of any series, or then held by the Company in trust for the payment of the principal of or any premium or interest on Securities of any series, and not applied but remaining unclaimed by the holders of Securities of that series for two years after the date upon which the principal or any premium or interest on such Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on demand or, if then held by the Company, shall be discharged from such trust, and all liability of the Trustee thereupon shall cease; and the holder of any of such Securities thereafter, as an unsecured general creditor, shall look only to the Company for payment of such Securities, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, thereupon shall cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, at the expense of the Company, in the case of Registered Securities or Bearer Securities, may cause to be published once, in a newspaper of general circulation in each Place of Payment for such series customarily published on each Business Day (whether or not published on Saturdays, Sundays or holidays) or, in the case of Registered Securities, mail to each such holder, or both in the case of Registered Securities, notice that such money remains unclaimed and that, after a date specified in such notice, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. Section 13.05. Discharge of Indenture as to Certain Series of Securities. (a) If this Section 13.05 is specified in the manner contemplated by Section 2.01 to be applicable to the Securities of any series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the Securities of any such series at the time Outstanding and, upon Company Order, the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction, discharge and defeasance of such indebtedness, when: (1) either: (A) with respect to all Securities of such series at the time Outstanding, the Company shall have deposited or caused to be deposited irrevocably with the Trustee for such series as trust funds in trust, U.S. dollars, U.S. Government Obligations or a combination thereof, in an amount that through the payment of interest and principal and premium in respect thereof in accordance with their terms will provide (without any reinvestment of such interest or principal), not later than one Business Day before the due date of any payment in respect of the Securities for such series, money in an amount sufficient (in the case of a deposit including any U.S. Government Obligations, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee at or prior to the time of such deposit) to pay and discharge each installment of principal of (including any mandatory sinking fund payments), and any premium and interest on, the Outstanding Securities of such series on the dates such installments of principal and any premium and interest are due or upon the Stated Maturity, Redemption Date or repayment at the option of a holder of such series, as applicable; or -45- (B) the Company properly has fulfilled such other means of satisfaction and discharge as is specified, in the manner contemplated by Section 2.01, to be applicable to the Securities of such series; (2) no Event of Default or event (including such deposit) which, with notice or lapse of time, or both, would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit as evidenced to the Trustee in an Officers' Certificate delivered concurrently with such deposit to the Trustee; (3) the Company shall have paid or caused to be paid all other sums payable with respect to the Securities of such series at the time Outstanding; (4) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound, or the Company has obtained a waiver of any such breach, violation or default; (5) unless otherwise specified in the manner contemplated by Section 2.01, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that holders of the Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of the Company's exercise of its option under this Section 13.05 and will be subject to Federal income tax on the same amount and in the manner and at the same times as would have been the case if such option had not been exercised and, in the case of the Securities of such series being discharged, accompanied by a ruling to that effect received from or published by the Internal Revenue Service; and (6) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction, discharge and defeasance of the entire indebtedness on all Securities of any such series at the time Outstanding have been complied with. (b) "U.S. Government Obligations" means securities that are (i) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America which in either case under clauses (i) or (ii) are not callable or redeemable at the option of the issuer thereof. (c) Upon the satisfaction of the conditions set forth in this Section 13.05 with respect to all the Securities of any series at the time Outstanding, the terms and conditions of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or applicable to, the Company (except as to any surviving rights of conversion or registration of transfer or exchange and rights relating to mutilated, destroyed, lost and stolen Securities pursuant to Section 2.07 of Securities of such series expressly provided for herein or in the form of Security of such series); provided, however, that the Company shall not be discharged from any payment obligations in respect of Securities of such series which are deemed not to be Outstanding under clause (c) of the definition thereof if such obligations continue to be valid obligations of the Company under applicable law. Section 13.06. Repayment to Company of Deposits Made Pursuant to Section 13.05. After the payment in full of the entire indebtedness of a series of Securities with respect to which a deposit has -46- been made with the Trustee pursuant to Section 13.05, the Trustee and any Paying Agent for such series upon Company Order promptly shall return to the Company any money or U.S. Government Obligations held by them that are not required for the payment of the principal of and any premium and interest on the Securities of such series. Section 13.07. Deposits Irrevocable. Any deposits with the Trustee referred to in Sections 13.01 and 13.05(a)(1)(A) shall be irrevocable. If any Securities of a series with respect to which a deposit has been made pursuant to Sections 13.01 and 13.05(a)(1)(A) at the time Outstanding are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. Section 13.08. Reinstatement. If the Trustee is unable to apply any money or U.S. Government Obligations in accordance with Section 13.01 or 13.05 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 13.01 or 13.05 until such time as the Trustee is permitted to apply all such money or U.S. Government Obligations in accordance with Section 13.01 or 13.05. ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS Section 14.01. Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of or any premium or interest on any Security, or for any claim based on any Security or coupon or otherwise in respect of any Security or coupon, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any Security, or because of the creation of any indebtedness represented by any Security or coupon, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities and coupons. ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS Section 15.01. Provisions Binding on Company's Successors. All the covenants, stipulations, promises and agreements contained in this Indenture by the Company shall bind its successors and assigns whether so expressed or not. Section 15.02. Official Acts by Successor Corporation. Any act or proceeding by any provisions of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, -47- committee or officer of any corporation that shall at the time be the lawful sole successor of the Company. Section 15.03. Addresses for Notices, etc. Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities on the Company may be given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to Mercantile Bancorporation Inc., Attention: Treasurer, P.O. Box 524, St. Louis, Missouri 63166-0524, with a copy to it at P.O. Box 524, St. Louis, Missouri 63166-0524, Attention: General Counsel. Any notice, direction, request or demand by any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the principal office of the Trustee, Attention: Corporate Trust Administration. Section 15.04. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 15.05. Evidence of Compliance with Conditions Precedent. Upon any application or request by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture (other than certificates provided pursuant to Section 3.04, which certificates shall comply with the requirements of Section 3.04) shall include: (i) a statement that the person making such certificate or opinion has read such covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinion contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. The provisions of this Section 15.05 are in furtherance of and subject to Sections 314(c)(1), 314(c)(2) and 314(e) of the Trust Indenture Act. Section 15.06. Legal Holidays. Unless otherwise specified in the manner contemplated by Section 2.01, in any case where the Stated Maturity of principal of or any premium or interest on the Securities will not be a Business Day, payment of such principal, premium or interest need not be made on such date but may be made on the next following Business Day with the same force and effect as if made on the Stated Maturity and, if such principal, premium or interest is duly paid on such next following Business Day, no interest shall accrue for the period from and after such Stated Maturity to such next following Business Day. Section 15.07. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any provision of the Trust Indenture Act, such required provision shall control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the modified or excluded provision of this Indenture, as the case may be, shall be deemed to apply. -48- Section 15.08. No Security Interest Created. Nothing in this Indenture or in the Securities or coupons, express or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction where property of the Company or its Subsidiaries is located. Section 15.09. Benefits of Indenture. Nothing in this Indenture or in the Securities or coupons, express or implied, shall give to any person, other than the parties to this Indenture, any Paying Agent, any Security registrar and their successors under this Indenture and the holders of Securities or coupons any benefit or any legal or equitable right, remedy or claim under this Indenture. -49- MERCANTILE BANCORPORATION INC. By: ----------------------------- [Name] [Title] [SEAL] Attest: - ---------------------- Title: HARRIS TRUST AND SAVINGS BANK By: ----------------------------- [Name] [Title] [SEAL] Attest: - ---------------------- Title: -50- STATE OF ) ) ss.: COUNTY OF ) On the ____ day of ___________________, 199_, before me personally came _____________, to me known, who, being by me duly sworn did depose and say that he resides at _____________________; that he is the ____________________________ of MERCANTILE BANCORPORATION INC., one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by the authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. ----------------------------------------------- Notary Public [NOTARIAL SEAL] STATE OF ) ) ss.: COUNTY OF ) On the ____ day of _______________, 199_, before me personally came _______________________________, to me known, who, being by me duly sworn did depose and say that he resides at ____________________________________; that he is a Vice President of HARRIS TRUST AND SAVINGS BANK, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by the authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. ----------------------------------------------- Notary Public [NOTARIAL SEAL] -51- EX-4.2 4 INDENTURE REGARDING SUBORDINATED SECURITIES ------------------------------------------ Mercantile Bancorporation Inc. and Harris Trust and Savings Bank, Trustee ----------------------------------- Indenture Regarding Subordinated Securities Dated as of ____________________, 199_____ ------------------------------------------ Reconciliation and Tie Sheet* between Provisions of the Trust Indenture Act of 1939 and Indenture, dated as of ____________________, 199_____ between Mercantile Bancorporation Inc. and Harris Trust and Savings Bank, Trustee
Section of Act Section of Indenture - -------------- -------------------- 310(a)(1), (2)..................... 6.08 310(a)(3), (4)..................... Not applicable 310(a)(5).......................... 6.08 310(b)............................. ** 310(c)............................. Not applicable 311(c)............................. Not applicable 312................................ ** 313(a)............................. ** 313(b)(1).......................... Not applicable 313(b)(2).......................... ** 313(c), (d)........................ ** 314(a)............................. ** 314(b)............................. Not applicable 314(c)(1) and (2).................. 16.05 314(c)(3).......................... Not applicable 314(d)............................. Not applicable 314(e)............................. 16.05 314(f)............................. Not applicable 315(a)(c) and (d).................. 6.01 315(b)............................. 5.08 315(e)............................. 5.09 316(a)(1).......................... 5.01 and 5.07 316(a)(2).......................... Omitted 316(a) last sentence............... 7.04 316(b)............................. 5.04 316(c)............................. 7.05 317(a)............................. 5.02 317(b)............................. 4.04(a) 318(a)............................. 16.07
- ----------------------------------- * This Reconciliation and Tie Sheet is not a part of the Indenture. ** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939. Table of Contents* -----------------
Page ---- Parties................................................................................. 1 Recitals................................................................................ 1 ARTICLE I. DEFINITIONS Section 1.01. Definitions......................................................... 1 ARTICLE II. THE SECURITIES AND SECURITY FORMS Section 2.01. Amount Unlimited; Issuable in Series................................ 6 Section 2.02. Form of Securities and of Trustee's Certificate of Authentication... 8 Section 2.03. Securities in Global Form........................................... 9 Section 2.04. Denomination, Authentication and Dating of Securities............... 9 Section 2.05. Execution of Securities............................................. 12 Section 2.06. Exchange and Registration of Transfer of Securities................. 12 Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities..................... 15 Section 2.08. Temporary Securities................................................ 16 Section 2.09. Payment of Interest; Interest Rights................................ 17 Section 2.10. Cancellation of Securities Paid, etc................................ 19 ARTICLE III. SUBORDINATION OF SECURITIES Section 3.01. Agreement of Securityholders that Securities Subordinated to Extent Provided.............................................................19 Section 3.02. Company Not to Make Payments with Respect to Securities in Certain Circumstances........................................................19 Section 3.03. Securities Subordinated to Prior Payment of All Senior Indebtedness on Dissolution, Liquidation or Reorganization of Company.............20 Section 3.04. Securityholders to be Subrogated to Rights of Holders of Senior Indebtedness.........................................................21 Section 3.05. Obligation of the Company Unconditional, etc.........................21 Section 3.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice...............................................................22 Section 3.07. Application by Trustee of Money Deposited with It....................22 Section 3.08. Article Applicable to Paying Agents..................................22
- -------------------------- * This table of contents is not part of the Indenture. (i) Page ---- Section 3.09. Subordination Rights Not Impaired by Acts or Omissions of Company or Holders of Senior Indebtedness.................................... 22 Section 3.10. Securityholders Authorize Trustee to Effectuate Subordination of Securities........................................................... 23 Section 3.11. Right of Trustee to Hold Senior Indebtedness......................... 23 Section 3.12. Article III Not to Prevent Events of Default......................... 23 Section 3.13. Trustee Not Fiduciary for Holders of Senior Indebtedness............. 23 ARTICLE IV. PARTICULAR COVENANTS OF THE COMPANY Section 4.01. Payment of Principal and Interest.................................... 23 Section 4.02. Offices for Notices and Payments, etc................................ 23 Section 4.03. Provisions as to Paying Agent........................................ 24 Section 4.04. Statement as to Compliance........................................... 25 Section 4.05. Notice of Certain Defaults........................................... 26 Section 4.06. Corporate Existence.................................................. 26 ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT OR ACCELERATION EVENT Section 5.01. Events of Default.................................................... 26 Section 5.02. Payment of Securities on Default; Suit Therefor...................... 28 Section 5.03. Application of Money Collected by Trustee............................ 29 Section 5.04. Proceedings by Securityholders....................................... 30 Section 5.05. Proceedings by Trustee............................................... 30 Section 5.06. Remedies Cumulative and Continuing; Delay or Omission Not Waiver..... 30 Section 5.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders...................................................... 31 Section 5.08. Notices of Defaults.................................................. 31 Section 5.09. Undertaking to Pay Costs............................................. 31 ARTICLE VI. CONCERNING THE TRUSTEE Section 6.01. Duties and Responsibilities of Trustee............................... 32 Section 6.02. Reliance on Documents, Opinions, etc................................. 33 Section 6.03. No Responsibility for Recitals, etc.................................. 34 Section 6.04. Trustee, Paying Agents or Registrar May Own Securities............... 34 Section 6.05. Money to be Held in Trust............................................ 34 Section 6.06. Compensation and Expenses of Trustee................................. 34 Section 6.07. Officers' Certificate as Evidence.................................... 34 Section 6.08. Eligibility of Trustee............................................... 35
(ii) Page ---- Section 6.09. Resignation or Removal of Trustee.................................... 35 Section 6.10. Acceptance by Successor Trustee...................................... 36 Section 6.11. Succession by Merger, etc............................................ 37 ARTICLE VII. CONCERNING THE SECURITYHOLDERS Section 7.01. Action by Securityholders............................................ 37 Section 7.02. Proof of Execution by Securityholders................................ 37 Section 7.03. Who Are Deemed Absolute Owners....................................... 38 Section 7.04. Company Owned Securities Disregarded................................. 39 Section 7.05. Revocation of Consents; Future Holders Bound......................... 39 ARTICLE VIII. SECURITYHOLDERS' MEETINGS Section 8.01. Purposes of Meetings................................................. 39 Section 8.02. Call of Meetings by Trustee.......................................... 39 Section 8.03. Call of Meetings by Company or Securityholders....................... 40 Section 8.04. Qualifications for Voting............................................ 40 Section 8.05. Regulations.......................................................... 40 Section 8.06. Quorum............................................................... 41 Section 8.07. Voting............................................................... 41 Section 8.08. No Delay of Rights by Meeting........................................ 41 ARTICLE IX. SUPPLEMENTAL INDENTURES Section 9.01. Supplemental Indentures Without Consent of Securityholders........... 42 Section 9.02. Supplemental Indentures with Consent of Securityholders of a Series.. 43 Section 9.03. Compliance with Trust Indenture Act: Effect of Supplemental Indentures........................................................... 44 Section 9.04. Notation on Securities............................................... 44 Section 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee.............................................................. 44 ARTICLE X. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE Section 10.01. Company May Consolidate, etc., on Certain Terms...................... 44 Section 10.02. Successor Corporation Substituted.................................... 45
(iii) Page ---- ARTICLE XI. REDEMPTION OF SECURITIES Section 11.01. Applicability of Article............................................ 45 Section 11.02. Election to Redeem; Notice to Trustee............................... 45 Section 11.03. Selection by Trustee of Securities to be Redeemed................... 46 Section 11.04. Notice of Redemption................................................ 46 Section 11.05. Deposit of Redemption Price......................................... 47 Section 11.06. Securities Payable on Redemption Date............................... 47 Section 11.07. Registered Securities Redeemed in Part.............................. 47 ARTICLE XII. SINKING FUNDS Section 12.01. Applicability of Article............................................ 48 Section 12.02. Satisfaction of Sinking Fund Payments with Securities............... 48 Section 12.03. Redemption of Securities for Sinking Fund........................... 48 ARTICLE XIII. REPAYMENT AT THE OPTION OF HOLDERS Section 13.01. Terms Set Forth in the Securities................................... 49 ARTICLE XIV. SATISFACTION AND DISCHARGE OF INDENTURE Section 14.01. Discharge of Indenture.............................................. 49 Section 14.02. Deposited Money to be Held in Trust by Trustee...................... 50 Section 14.03. Paying Agent to Repay Money Held.................................... 50 Section 14.04. Return of Unclaimed Money........................................... 50 Section 14.05. Deposits Irrevocable................................................ 50 Section 14.06. Reinstatement....................................................... 50 ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS Section 15.01. Indenture and Securities Solely Corporate Obligations............... 51
(iv) Page ---- ARTICLE XVI. MISCELLANEOUS PROVISIONS Section 16.01. Provisions Binding on Company's Successors................... 51 Section 16.02. Official Acts by Successor Corporation....................... 51 Section 16.03. Addresses for Notices, etc................................... 51 Section 16.04. Governing Law................................................ 51 Section 16.05. Evidence of Compliance with Conditions Precedent............. 51 Section 16.06. Legal Holidays............................................... 52 Section 16.07. Trust Indenture Act to Control............................... 52 Section 16.08. No Security Interest Created................................. 52 Section 16.09. Benefits of Indenture........................................ 52 Section 16.10. Payments to be Made in U.S. Dollars.......................... 52 Section 16.11. Table of Contents Headings, etc.............................. 52 Section 16.12. Execution in Counterparts.................................... 53 Signatures.......................................................................... 56 Acknowledgements
(v) THIS INDENTURE, dated as of ____________________, 199_____, is entered into by MERCANTILE BANCORPORATION INC., a Missouri corporation (such corporation or, subject to Article X, its successors and assigns, the "Company"), and HARRIS TRUST AND SAVINGS BANK, a banking corporation, duly organized and existing under the laws of Illinois (such banking corporation or, subject to Article VI, its successors and assigns as Trustee under this Indenture, the "Trustee"). RECITAL OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences of indebtedness or warrants therefor to be issued in one or more series (the "Securities"), as provided herein. For and in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all holders of the Securities, as follows: ARTICLE I. DEFINITIONS Section 1.01. Definitions. The terms defined in this Section 1.01 (except to the extent the application of such definitions is expressly limited to certain instances, and except as otherwise expressly provided in this Indenture or unless the context otherwise requires) for all purposes of this Indenture will have the respective meanings specified in this Section 1.01. Except as otherwise expressly provided in this Indenture or unless the context otherwise requires, all other terms used in this Indenture that are defined in the Trust Indenture Act or that the Trust Indenture Act defines by reference to the Securities Act of 1933 or by Commission rule under the Trust Indenture Act will have the meanings assigned to such terms in the Trust Indenture Act, in such rule thereunder or in such Securities Act as in force at the date of the execution of this Indenture. Acceleration Event: The term "Acceleration Event," with respect to Securities of any Series, means the occurrence with respect to the Company or any Principal Constituent Bank of any of the events described in Section 5.01 or 5.01, continued for the period of time, if any, and after the giving of notice, if any, designated in Section 5.01 or 5.01, or shall have the meaning otherwise specified in the Securities of such series. Bank: The term "Bank" means (i) any institution, including savings associations and other United States depository institutions, organized under the laws of the United States, any State, the District of Columbia, Puerto Rico or any territory of the United States that (a) accepts deposits that the depositor has a legal right to withdraw on demand and (b) engages in the business of making loans and (ii) any trust company organized under any of the foregoing laws. Unless otherwise provided, for purposes of this Indenture a Bank also will be considered a "corporation." Bearer Security: The term "Bearer Security" means any Security established pursuant to Section 2.02 that is payable to bearer. Bearer Security Tax Certificate: The term "Bearer Security Tax Certificate" or "Certificate of non-U.S. Ownership," when used with respect to a Bearer Security, means a certificate satisfying the requirements of Treasury Regulation (S) 1.163-5(c)(2)(i)(D)(3), as that provision may be amended or redesignated from time to time, which certificate shall be in a form approved by the Company. Board of Directors: The term "Board of Directors" means the Board of Directors of the Company or, with respect to any matter, any committee of the Board of Directors duly authorized to act for the Board of Directors with respect to such matter. Business Day: The term "Business Day," with respect to each series of Securities, means any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which banking institutions are authorized or obligated by law or regulation to close in either the City of New York or the City of Chicago or, with respect to Registered Notes that will bear interest based on a specified percentage of London interbank offered quotations ("LIBOR"), in London, England, or, in the case of Bearer Securities, in any Place of Payment. CEDEL: The term "CEDEL" means Cedel Bank, societe anonyme. Commission: The term "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture the Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date. Company: The term "Company" means the corporation identified as the Company in the first paragraph of this Indenture until a successor corporation shall succeed to and be substituted for the Company pursuant to the provisions of Article X, and thereafter shall mean such successor corporation. Company Order: The term "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, any Vice Chairman, its Chief Executive Officer, its President, any Executive Vice President or any Senior Vice President and its Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary, and delivered to the Trustee. Consolidated Net Banking Assets: The term "Consolidated Net Banking Assets" means all net assets owned directly or indirectly by a Subsidiary that is a Bank as such net assets would be reflected on a consolidated balance sheet of the Company prepared in accordance with generally accepted accounting principles at the time. Constituent Bank: The term "Constituent Bank" means any Subsidiary that is a Bank. Controlled Subsidiary: The term "Controlled Subsidiary" means any Subsidiary of which more than 80% of the aggregate voting power of the outstanding shares of the Voting Stock at the time is owned directly or indirectly by the Company or by one or more Controlled Subsidiaries or by the Company and one or more Controlled Subsidiaries, after giving effect to the issuance to any Person other than the Company or any Controlled Subsidiary of Voting Stock of the Subsidiary issuable on exercise of options, warrants or rights to subscribe for such Voting Stock or on conversion of securities convertible into such Voting Stock. coupon: The term "coupon" means any interest coupon appertaining to a Bearer Security. Defaulted Interest: The term "Defaulted Interest" has the meaning specified in Section 2.09. 2 Depositary: The term "Depositary," with respect to the Securities of any series issuable or issued in the form of one or more Global Securities, means the Depository Trust Company, New York, New York, or such other Person designated as Depositary by the Company in the manner provided in Section 2.01, until a successor Depositary shall have been appointed pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" means or includes each person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series means the Depositary with respect to the Securities of that series. Euroclear: The term "Euroclear" means Morgan Guaranty Trust Company of New York, Brussels Office, as operator of the Euroclear System. Event of Default: The term "Event of Default" means any event specified in Section 5.01, continued for the period of time, if any, and after the giving of the notice, if any, designated in Section 5.01. Global Security: The term "Global Security" means a Security issued to evidence all or part of a series of Securities in accordance with Section 2.03. Indenture: The term "Indenture" means this instrument as originally executed or, if amended or supplemented as provided in this Indenture, as so amended or supplemented. interest: The term "interest," when used with respect to an Original Issue Discount Security that by its terms bears interest only after Maturity, means interest payable after Maturity. Interest Payment Date: The term "Interest Payment Date," when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security. Maturity: The term "Maturity," when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by the declaration of acceleration, call for redemption, repayment at the option of the holder or otherwise. Officers' Certificate: The term "Officers' Certificate," when used with respect to the Company, means a certificate signed by the Chairman of the Board, any Vice Chairman, the Chief Executive Officer, the President, any Executive Vice President or any Senior Vice President and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company. Except as otherwise provided in this Indenture, each such certificate shall include the statements provided for in Section 16.05. Opinion of Counsel: The term "Opinion of Counsel" means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, who shall be acceptable to the Trustee, and delivered to the trustee. Except as otherwise provided in this Indenture, each such opinion shall include the statements provided for in Section 16.05. Original Issue Discount Security; principal amount or aggregate principal amount: The term "Original Issue Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.01. The term "principal amount" or "aggregate principal amount," when used with respect to Original Issue Discount Securities, has the meaning (or meanings) specified in the manner contemplated by Section 2.01 for purposes of: determining the amount due and payable in the event of an acceleration 3 of Maturity as provided in Section 5.01; the redemption provisions in Article XI; determining whether the holders of the requisite principal amount of Outstanding Securities of any Series have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture; and determining whether a quorum is present at a meeting of Securityholders. Paying Agent: The term "Paying Agent," when used with respect to Securities of any series, means any Person authorized by the Company to pay the principal of and any premium or interest on any Securities of that series on behalf of the Company. Person: The term "Person" means a corporation, an association, a partnership, an organization, a trust, an individual, a government or a political subdivision thereof or a governmental agency. Place of Payment: The term "Place of Payment" has the meaning stated in Section 2.01(e). Predecessor Security: The term "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt that was evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 2.06 in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. Principal Constituent Bank: The term "Principal Constituent Bank" means, at any time, Mercantile Bank National Association and any other Constituent Bank the total assets of which (as set forth in the most recent statement of condition of such Constituent Bank) equal more than 20% of the total assets of all Constituent Banks as determined from the most recent statements of condition of the Constituent Banks. principal office of the Trustee: The term "principal office of the Trustee" or any other similar term means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office, at the date of this Indenture, is located at 311 West Monroe Street, 12th Floor, Chicago, Illinois 60606. Redemption Date: The term "Redemption Date," when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. Redemption Price: The term "Redemption Price," when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. Registered Security: The term "Registered Security" means any Security in the form of registered securities established pursuant to Section 2.02, that is registered in the Security Register. Regular Record Date: The term "Regular Record Date," with respect to the interest payable on any Interest Payment Date on the Securities of any series, means the date specified for that purpose as contemplated by Section 2.01. Responsible Officer: The term "Responsible Officer," when used with respect to the Trustee, means the Chairman or Vice Chairman of its board of directors, the Chairman or Vice Chairman of the executive committee of the board of directors, the President, any Vice President, any senior trust officer, any trust officer, any assistant trust officer or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the 4 persons who at the time shall be the above-named officers, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. Security or Securities; Outstanding: The term "Security" or "Securities" has the meaning stated in the recital of this Indenture and means any Security or Securities, as the case may be, authenticated and delivered pursuant to this Indenture. Whenever this Indenture refers to any interest on or with respect to any Security that is represented by a coupon, such reference to the Security also shall include reference to a coupon. The term "Outstanding," when used with reference to Securities of any series or the related coupons, subject to the provisions of Section 7.04, means, as of any particular time, all Securities of such series or any related coupons authenticated and delivered by the Trustee pursuant to this Indenture, except: (a) such Securities and coupons theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) such Securities and coupons, or portions thereof, for the payment or redemption of which money in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent), provided that if such Securities are to be redeemed prior to the Maturity thereof, notice of such redemption shall have been provided as specified in Article XI, or provision satisfactory to the Trustee shall have been made for mailing such notice; and (c) Securities or coupons in lieu of or in substitution for which other Securities or coupons shall have been authenticated and delivered pursuant to the terms of Section 2.06, except to the extent that a bona fide holder in due course of any such Securities shall have presented proof satisfactory to the Trustee that such holder is a bona fide holder in due course of any such Securities or coupons. Security Register: The term "Security Register," when used with respect to a Registered Security, has the meaning specified in Section 2.06(b). Securityholder: The term "Securityholder," "holder of Securities," "holder" or other similar term, when used with respect to a Registered Security, means any Person in whose name at the time a particular Registered Security is registered on the Security Register and, when used with respect to a Bearer Security or coupon, the bearer thereof. Senior Indebtedness: The term "Senior Indebtedness" means the principal of and any premium and interest on the following, whether Outstanding on the date of execution of this Indenture or thereafter incurred or created: (a) indebtedness of the Company for money borrowed by the Company (including purchase money obligations with an original term of more than one year) or evidenced by debentures, notes or other corporate debt securities or similar instruments issued by the Company (other than the Securities); (b) indebtedness or obligations of the Company as lessee under any lease of real or personal property required to be capitalized under generally accepted accounting principles at the time; (c) indebtedness or obligations incurred or assumed by the Company in connection with the acquisition by the Company or any Subsidiary of any property, including any business; (d) obligations under any agreement in respect of any interest rate or currency swap, interest rate cap, floor or collar, interest rate future, currency exchange or forward currency transaction that relates to Senior Indebtedness; 5 (e) indebtedness or obligations of the Company constituting a guarantee of indebtedness or of obligations of others of the type referred to in the preceding clauses (a), (b), (c) and (d); or (f) renewals, extensions or refundings of any of the indebtedness or obligations referred to in the preceding clauses (a), (b), (c), (d) and (e); provided, however, that Senior Indebtedness shall not include any particular indebtedness or obligation, renewal, extension or refunding referred to in clause (a), (b), (c), (d), (e) or (f) if the express provisions of the instrument creating or evidencing the same, or pursuant to which the same is outstanding, provide that such indebtedness or other obligation or such renewal, extension or refunding is not superior in right of payment to the Securities; provided further, however, the Securities shall be senior in right of payment to those certain Floating Rate Junior Subordinated Deferrable Interest Debentures due 2027 of the Company. Special Record Date: The term "Special Record Date" has the meaning specified in Section 2.09. Stated Maturity: The term "Stated Maturity," when used with respect to any Security or any payment of premium or any installment of interest thereon, means the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such payment of premium or such installment of interest is due and payable. Subsidiary: The term "Subsidiary" means any corporation of which a majority of the aggregate voting power of the outstanding Voting Stock at the time shall be owned by the Company or by the Company and one or more Subsidiaries or by one or more Subsidiaries. Trust Indenture Act: The term "Trust Indenture Act" means the Trust Indenture Act of 1939 as it was in force at the date of execution of this Indenture, except as provided in Section 9.03; provided, however, that, in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. Trustee: The term "Trustee" means the Person identified as the Trustee in the first paragraph of this Indenture until a successor shall succeed to the trusts created by this Indenture pursuant to the provisions of Article VI, and thereafter shall mean such successor. United States: The term "United States" means the United States of America (including the District of Columbia) and its possessions. Vice President: The term "Vice president" or "Vice President," when used with respect to the Company or the Trustee, means any such officer whether or not designated by a number or a word or words added before or after such title. Voting Stock: The term "Voting Stock" of a corporation or other entity means stock of the class or classes having general voting power in an election of the board of directors, managers or trustees of such corporation or other entity (irrespective of whether, at the time, stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). ARTICLE II. THE SECURITIES AND SECURITY FORMS Section 2.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. Securities may be issued in one or more series. 6 The terms and conditions listed below, as applicable, of any series of Securities shall be established either in an indenture supplemental hereto or in or pursuant to a resolution of the Board of Directors: (a) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of all other series); (b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 9.04 or 11.07. (c) the date or dates on which the principal of the Securities of the series is payable; (d) the rate or rates (which may be fixed or variable) at which the Securities of the series shall bear interest, if any, or the formula by which interest shall be calculated by the Company or an agent designated for such purpose, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Registered Security on any Interest Payment Date; (e) the place or places, if any, in addition to those specified herein, where the principal of and any premium or interest on Securities of the series shall be payable (the "Place of Payment"), any Registered Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and where notices to holders pursuant to this Indenture will be published; (f) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise; (g) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a holder thereof and the price or prices at which, the period or periods within which and the other terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation, which in the case of Securities of any series that are repayable at the option of a holder thereof shall be set forth in the form of such Security; (h) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether Securities of the series are to be issuable with or without coupons or both and, in the case of Bearer Securities, the date as of which such Bearer Securities shall be dated if other than the date of original issuance of the first Security of such series of like tenor and term to be issued; (i) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary (if other than the Depository Trust Company) for such Global Security or Securities and whether such global form shall be permanent or temporary; 7 (j) if Securities of the series are to be issuable initially in the form of one or more temporary Global Securities, the circumstances under and the manner in which such temporary Global Securities can be exchanged for definitive Securities of the series and whether such definitive Securities will be Registered Securities, Bearer Securities or both and will be in global form; (k) the denominations in which Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which Bearer Securities of such series, if any, shall be issuable if other than the denomination of $5,000; (l) any Event of Default or Acceleration Event with respect to the Securities of such series, if not set forth herein; (m) the form of Securities of such series; (n) the Person or Persons who shall be Security registrar for the Securities of such series if other than as provided for in this Indenture, and the place or places where the Security Register for such series shall be maintained and the Person or Persons who will be the initial Paying Agent or Agents, if other than as provided for in this Indenture; (o) if warrants for Securities of any series are to be issued, the form in which the warrants shall be issued, the circumstances under and the manner in which the warrants may be exercised, any obligation of the Company concerning any Securities underlying the warrants and any other terms or conditions regarding the warrants and any Securities underlying the warrants; and (p) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). All Securities of any series and the coupons appertaining to Bearer Securities of such series, if any, issued under this Indenture in all respects shall be equally and ratably entitled to the benefits hereof with respect to such series without preference, priority or distinction on account of actual time or times of authentication and delivery or Maturity of the Securities of such series. All Securities of the same series and the coupons appertaining to Bearer Securities of such series, if any, shall be substantially identical except as to denomination and except as may otherwise be provided either in an indenture supplemental hereto or a resolution of the Board of Directors. Section 2.02. Form of Securities and of Trustee's Certificate of Authentication. The Registered Securities, if any, and the Bearer Securities and related coupons, if any, of each series and the certificates of authentication on the Securities shall be in substantially the form as shall be established as provided in Section 2.01 with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or as may be determined consistently herewith by the officers executing such Securities or coupons, as evidenced by their execution of the Securities or coupons. If the form of Securities of any series or coupons (including any Global Security) is established by action taken pursuant to a resolution of the Board of Directors, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect 8 as of the date of such certificate, and shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 2.04(b) or the authentication and delivery of such Securities. Each Bearer Security and Coupon shall bear a legend substantially to the following effect: "Any United States Person will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code." The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange, all as determined by the officers executing such Securities or coupons, as evidenced by their execution of such Securities or coupons. The form of Trustee's certificate of authentication for all Securities shall be as follows: TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities issued under the within-mentioned Indenture. Harris Trust and Savings Bank, as Trustee By -------------------------------------- Authorized Officer Section 2.03. Securities in Global Form. (a) If Securities of a series are issuable in whole or in part in global form, as specified in the manner contemplated by Section 2.01, then, notwithstanding the provisions of clause 2.01(k) or Section 2.04, such Global Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby from time to time may be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons as shall be specified in such Global Security or in the Company Order to be delivered to the Trustee pursuant to Section 2.04(b). (b) The provisions of the last sentence of Section 2.05(b) shall apply to any Securities represented by a Global Security if such Securities were never issued and sold by the Company (whether because of failure of settlement or otherwise) and the Company delivers to the Trustee the Global Security together with written instructions with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 2.05(b). (c) Global Securities may be issued in either registered or bearer form and in either temporary or permanent form. Section 2.04. Denomination, Authentication and Dating of Securities. (a) Securities of each series shall be issuable in such form and denominations as shall be specified in the form of Security for such series approved or established pursuant to Section 2.02. In the absence of any specification, as provided in Section 2.01, with respect to 9 the Securities of any series, the Registered Securities of such series, if any, shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series, if any, shall be issuable in the denomination of $5,000. Each Registered Security shall be dated as of the date of its authentication. Each Bearer Security shall be dated as of the date specified in the manner contemplated by Section 2.01. (b) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. Except as otherwise provided in this Article II, the Trustee thereupon shall authenticate and deliver such Securities in accordance with a Company Order; provided, however, that in connection with its original issuance a Bearer Security may be delivered only outside the United States and, except in the case of a temporary Global Security, only if the Company or its agent shall have received from the person entitled to receive the Bearer Security a Bearer Security Tax Certificate and only if the Company has no reason to know that such certificate is false. (c) To the extent authorized in or pursuant to a resolution of the Board of Directors or established in an indenture supplemental hereto, such Company Order may be electronically transmitted and may provide instructions as to registration of holders, principal amounts, rates of interest, Stated Maturities and other matters contemplated by such resolution of the Board of Directors or supplemental indenture to be so instructed in respect thereof. (d) In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and, subject to Section 6.01, shall be fully protected in relying upon: (i) a copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate; (ii) executed supplemental indenture, if any; (iii) delivered in accordance with Section 16.05; and (iv) Opinion of Counsel which shall state: (A) that the form of such Securities and coupons, if any, has been established by a supplemental indenture or by or pursuant to a resolution of the Board of Directors in accordance with Sections 2.01 and 2.02 in conformity with the provisions of this Indenture; (B) that the terms of such Securities and coupons, if any, have been established in accordance with Section 2.01 and in conformity with the other provisions of this Indenture; (C) that such Securities, when authenticated and delivered by the Trustee and issued (with coupons attached, if applicable) by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in 10 accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; (D) that all conditions precedent, if any, provided for in this Indenture have been complied with; and (E) that all laws and requirements in respect of the execution and delivery by the Company of such Securities and coupons, if any, have been complied with. (e) If the Company shall establish pursuant to Section 2.01 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee, in accordance with this Section 2.04 and the Company Order with respect to such series, shall authenticate and deliver one or more Global Securities in permanent or temporary form that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary and (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instruction. (f) The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.04 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors or trustees or vice presidents shall determine that such action would expose the Trustee to personal liability to existing holders. (g) Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary for the Company to deliver to the Trustee a Company Order, Officers' Certificate, resolution of the Board of Directors, supplemental indenture or Opinion of Counsel otherwise required pursuant to Section 2.04 or Section 2.04 at or prior to the time of authentication of each Security of such series if such documents are delivered to the Trustee or its agent at or prior to the authentication upon original issuance of the first Security of such series to be issued. In such event, any subsequent request by the Company to the Trustee to authenticate Securities of such series upon original issuance shall constitute a representation and warranty by the Company that, as of the date of such request, the statements made in the Officers' Certificate or other certificates delivered pursuant to Section 2.04 shall be true and correct as if made on such date. A Company Order, Officers' Certificate, resolution of the Board of Directors or supplemental indenture delivered by the Company to the Trustee in the circumstances set forth in this Section 2.04 may provide that Securities that are the subject thereof will be authenticated and delivered by the Trustee or its agent on original issue from time to time in the aggregate principal amount established for such series pursuant to such procedures acceptable to the Trustee as may be specified from time to time by Company Order upon the telephonic, electronic or written order of persons designated in such Company Order, supplemental indenture or resolution of the Board of Directors (any such telephonic or electronic instructions to be promptly confirmed in writing by such persons) and that such persons are authorized to determine, consistent with such Company Order, supplemental indenture or resolution of the Board of Directors, such terms and conditions of said Securities 11 as are specified in such Company Order, supplemental indenture or resolution of the Board of Directors. (h) Each Depositary designated pursuant to clause 2.01(i) for a Global Security in registered form, at the time of its designation and at all times while it serves as Depositary, shall be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation. Section 2.05. Execution of Securities. (a) The Securities and the related coupons shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman of the Board, its Chief Executive Officer or its President or, in lieu thereof, of any Senior Vice President or its Treasurer and attested by its Secretary, under its corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise). For the purpose of any such signature or attestation, the Company may adopt and use the facsimile signature of any person who has been or is or shall be such officer. (b) No Security or appurtenant coupon shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose unless such security bears thereon a certificate of authentication substantially in the form set forth in Section 2.02, manually executed by the authorized signatory of the Trustee. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered under this Indenture. Except as permitted by Section 2.07, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. Notwithstanding the foregoing, if any Security or portions thereof shall have been duly authenticated and delivered hereunder but never issued and sold by the Company (whether because of failure of settlement or otherwise), and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.10 together with a written statement stating that such Security or portion thereof has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to the benefits of this Indenture. (c) In case any officer of the Company whose manual or facsimile signature appears on any of the Securities or coupons shall cease to be such officer before the Securities or coupons so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities or coupons nevertheless may be authenticated and delivered or disposed of as though the person whose manual or facsimile signature appears on such Securities or coupons had not ceased to be such officer of the Company; and any Security or coupon may bear the manual or facsimile signature on behalf of the Company by such persons as, at the actual date of the execution of such Security or coupon, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer. Section 2.06. Exchange and Registration of Transfer of Securities. (a) Registered Securities of any series may be exchanged for a like aggregate principal amount of Registered Securities of other authorized denominations and of like tenor and terms of the same series. Registered Securities to be exchanged shall be surrendered at the office or agency to be maintained by the Company pursuant to Section 4.02 in each Place of Payment 12 for such series of Registered Securities, and the Company shall execute and cause to be registered, and the Trustee shall authenticate and deliver in exchange therefor, the Registered Security or Securities which the Securityholder making the exchange shall be entitled to receive. In no event may Registered Securities, including Registered Securities received in exchange for Bearer Securities, be exchanged for Bearer Securities. (b) For each series of Registered Securities, the Company shall cause to be kept in at least one such office or agency a Security register (the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for registration of Registered Securities and registration of transfer of Registered Securities as provided in this Article Two. Each such Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times such Security Registers shall be open for inspection by the Trustee. Upon due presentment for registration of transfer of any Registered Security of any series at any such office or agency, the Company shall execute and register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Registered Security or Securities of the same series and of like tenor and terms for an equal aggregate principal amount. Unless otherwise provided (pursuant to Section 2.01 or otherwise), the Company initially appoints the Trustee, at the principal office of the Trustee, as a Security registrar for each series of Registered Securities. (c) All Registered Securities presented for registration of transfer or for exchange or payment, if so required by the Company or the Trustee, shall be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized in writing. (d) To the extent specified in the manner provided by Section 2.01, Registered Securities or Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified in the manner contemplated by Section 2.01 with respect to a Bearer Security in global form) of the same series, of any authorized denomination and of like tenor and terms and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any office or agency specified in the manner provided by Section 2.01, with all unmatured coupons and all unpaid matured coupons thereto appertaining. If the holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or unpaid matured coupon or coupons, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the amount represented by such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to hold harmless each of them and any Paying Agent. If thereafter the holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such payment shall have been made, such holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 4.02, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the holder making the exchange is entitled to receive. (e) If at any time the Depositary for the Global Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Global Securities of such series or if at any time the Depositary for the Registered Securities of such series shall no longer be eligible under Section 2.03 because it no longer is a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation, the Company 13 shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Global Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election pursuant to Section 2.01 shall no longer be effective with respect to the Securities of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. (f) The Company at any time and in its sole discretion may determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. (g) If specified by the Company pursuant to Section 2.01 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and deliver: (i) to each Person specified by such Depositary a new Security or new Securities of the same series, of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (ii) to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to holders thereof. (h) In any exchange provided for in Section 2.06(e), Section 2.06(f) or Section 206(g), the Company will execute and the Trustee will authenticate and deliver Securities (i) in definitive registered form in authorized denominations, if the Securities of such series are issuable as Registered Securities, (ii) in definitive bearer form in authorized denominations, with unmatured coupons attached, if the Securities of such series are issuable as Bearer Securities or (iii) as either Registered or Bearer Securities, if the Securities of such series are issuable in either form; provided, however, that (A) no definitive Bearer Security shall be delivered in exchange for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a Bearer Security Tax Certificate, (B) delivery of a Bearer Security shall occur only outside the United States and (C) no definitive Bearer Security will be issued if the Company or the Trustee has reason to know that such certificate is false. (i) Upon the exchange of all of a Global Security for Securities in certificated form, such Global Security shall be cancelled by the Trustee. The exchange of any portion of a Global 14 Security for Securities in certificated form shall be subject to Section 2.03(a). Registered Securities issued in exchange for all or part of a Global Security shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Registered Securities to the persons in whose names such Securities are so registered. The Trustee shall deliver Bearer Securities issued in exchange for all or part of a Global Security to the persons, and in such authorized denominations, as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee; provided, however, that (A) no definitive Bearer Security shall be delivered in exchange for all or part of a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a Bearer Security Tax Certificate, (B) delivery of a Bearer Security shall occur only outside the United States and (C) no definitive Bearer Security will be issued if the Company or the Trustee has reason to know that any such certificate is false. (j) No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such exchange or registration of transfer. (k) The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any particular series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Registered Security being redeemed in part or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series, provided that such Registered Security shall be surrendered immediately for redemption with written instruction for payment consistent with the provisions of this Indenture. (l) Notwithstanding anything herein to the contrary, the exchange of Bearer Securities for Registered Securities shall be subject to applicable laws and regulations in effect at the time of exchange; and neither the Company nor the Trustee or any Security registrar shall exchange any Bearer Securities into Registered Securities if it has received an Opinion of Counsel that as a result of such exchanges the Company could suffer adverse consequences under the United States Federal income tax laws and regulations then in effect and the Company has delivered to the Trustee a Company Order directing the Trustee not to make such exchanges thereafter unless and until the Trustee receives a subsequent Company Order to the contrary. The Company shall deliver copies of such Company Order to the Security registrar. Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. (a) In case any temporary or definitive Security of any series or any related coupon shall become mutilated or be destroyed, lost or stolen, the Company, in its discretion, may execute, and upon its request and in the absence of notice to the Company and the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Trustee shall authenticate and deliver a new Security of the same series or related coupon, of equal aggregate principal amount and of like tenor and terms bearing a number not contemporaneously Outstanding, in exchange and substitution for the mutilated Security or coupon, or in lieu of and 15 in substitution for the Security or coupon so destroyed, lost or stolen. In every case the applicant for a substituted Security or coupon shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to hold each of them harmless, and, in every case of destruction, loss or theft, the applicant also shall furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such security or coupon and of the ownership of such Security or coupon. (b) The Trustee may authenticate any such substitute Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substitute Security or coupon, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee) connected therewith. In case any Security or coupon which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company, instead of issuing a substitute Security or coupon, may pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to hold each of them harmless and, in the case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Security or coupon and of the ownership of such Security or coupon. (c) Every substitute Security or coupon issued pursuant to the provisions of this Section 2.07 by virtue of the fact that any Security or coupon is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security or coupon shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities or coupons duly issued under this Indenture. All Securities or coupons shall be held and owned by the holders upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. (d) Notwithstanding the foregoing, the payment of principal of and any premium and interest on Bearer Securities, except as otherwise provided in Section 4.02, shall be payable only at an office or an agency located outside of the United States, and, with respect to any coupons, interest represented thereby shall be payable only upon presentation and surrender of such coupons. Section 2.08. Temporary Securities. (a) Pending the preparation of definitive Securities of any series, the Company may execute and the Trustee shall authenticate and deliver temporary Securities (printed or lithographed). Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the definitive Securities of such series (and of like tenor and terms) in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without coupons, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Such temporary Securities may be in global form, representing all or any part of the Outstanding Securities of such series. 16 (b) Unless otherwise provided pursuant to Section 2.01: (i) Except in the case of temporary Securities in global form, every such temporary Security shall be authenticated by the Trustee in substantially the same manner, and with the same effect, as the definitive Securities. Without unreasonable delay the Company will execute and deliver to the Trustee definitive Securities of such series and thereupon any or all temporary Securities of such series (accompanied, if applicable, by all unmatured coupons and all unpaid matured coupons appertaining thereto) may be surrendered in exchange therefor at the principal office of the Trustee, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series of authorized denominations. Such exchange shall be made at the Company's expense and without any charge to the holder. Until so exchanged, the temporary Securities of any series in all respects shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered under this Indenture. Notwithstanding the foregoing, no Bearer Security shall be delivered in exchange for a Registered Security, and a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the conditions set forth in Section 2.06. (ii) If Securities of any series are issued in temporary global form, any such temporary Global Security, unless otherwise provided pursuant to Section 2.01, shall be delivered to the Depositary for the benefit of Euroclear and CEDEL for credit to the respective accounts of the beneficial owners of such Securities or to such other accounts as they may direct. (iii) Any such temporary Global Security shall be exchangeable, on the terms and in the manner set forth therein, in whole or in part, for an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor and terms as the portions of such temporary Global Security to be exchanged. Any definitive Bearer Securities shall be delivered in exchange for a portion of a temporary Global Security only outside the United States and only upon receipt by the Trustee from the Person entitled to receive such definitive Bearer Security of a Bearer Security Tax Certificate. (iv) Until exchanged in full as hereinabove provided, the temporary Securities of any series shall be entitled in all respects to the same benefits under this Indenture as definitive Securities of the same series and of like tenor and terms authenticated and delivered hereunder, except that any interest payable with respect to a temporary Global Security will be paid as specified therein. Section 2.09. Payment of Interest; Interest Rights. Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such series after the close of business (at an office or agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business (at such office or agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment and interest will not be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the holder of such coupon when due in accordance with 17 the provisions of this Indenture. Payment of interest on any Registered Security may be made as provided in Section 3.02. Any interest on any security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date ("Defaulted Interest") forthwith shall cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below: (i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less than ten days prior to the date of the proposed payment and not less than ten days after the receipt by the Trustee of the notice of the proposed payment. The Trustee promptly shall notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class, postage prepaid, to each Security Holder at his address as it appears in the Security Register, not less than ten days prior to such Special Record date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been given as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (ii). (ii) The Company may make payment of any defaulted Interest on any such Security in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of that series may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section 2.09, each Security of any series delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. Subject to the limitations set forth in Section 4.02, the holder of any coupon appertaining to a Bearer Security shall be entitled to receive the interest payable on such coupon upon presentation and surrender of such coupon on or after the Interest Payment Date of such coupon at an office or agency maintained for such purpose pursuant to Section 4.02. 18 Section 2.10. Cancellation of Securities Paid, etc. All Securities and coupons surrendered for the purpose of payment, exchange or registration of transfer, if surrendered to the Company or any Paying Agent or any Security registrar, shall be delivered to the Trustee and promptly cancelled by the Trustee, or, if surrendered to the Trustee, promptly shall be cancelled by it; and no Securities or coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee may destroy cancelled Securities or coupons and will deliver a certificate of such destruction of the Company. ARTICLE III. SUBORDINATION OF SECURITIES Section 3.01. Agreement of Securityholders that Securities Subordinated to Extent Provided. The Company, for itself and its successors and assigns, covenants and agrees and each holder of the Securities and any related coupons by his acceptance of a Security or coupon likewise covenants and agrees that, subject to the provisions of Article Fourteen, the payment of the principal of and any premium and interest on any and all Securities and coupons is hereby expressly subordinated, to the extent and in the manner set forth in this Article Three, to the prior payment in full of all Senior Indebtedness. The provisions of this Article Three shall constitute a continuing offer to all persons who, in reliance upon such provisions, become holders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness, and such holders are hereby made obligees under this Article III as if their names were written in this Article III as such, and they and each of them may proceed to enforce the provisions of this Article III. Section 3.02. Company Not to Make Payments with Respect to Securities in Certain Circumstances. (a) If payment of the Securities is accelerated because of an Acceleration Event, the Company promptly shall notify holders of Senior Indebtedness of the acceleration. (b) The Company may not pay principal of or any premium or interest on the Securities and may not acquire any Securities for cash or property other than capital stock of the Company if: (i) a default on Senior Indebtedness occurs and is continuing that permits holders of such Senior Indebtedness to accelerate its maturity; and (ii) such default is the subject of judicial proceedings or the Company receives written notice of such default from a representative of all the holders of such Senior Indebtedness. If the Company receives any such notice, a similar notice received within 360 days thereafter relating to the same default on the same issue of Senior Indebtedness shall not be effective for purposes of this Section 3.02(b). The Company may resume payments on the Securities and may acquire them when: (i) such default is cured or waived or shall have ceased to exist or the Senior Indebtedness to which such default relates shall have been paid in full in cash or cash equivalent; or 19 (ii) if such default is not the subject of judicial proceedings, 120 days pass after such written notice is received by the Company, but only if this Article III does not otherwise prohibit such payment or acquisition at that time. (c) In the event that notwithstanding the provisions of this Section 3.02 the Company shall make any payment to the Trustee on account of the principal of or any premium or interest on the Securities prohibited by Section 3.02(b), then, unless and until such payment is thereafter permitted under Section 3.02(b), such payment shall be held by the Trustee in trust for the benefit of, and shall be paid forthwith over and delivered to (if the Notice required by Section 3.06 has been received by the Trustee), the holders of Senior Indebtedness (pro rata as to each of such holders on the basis of the respective amounts of Senior Indebtedness held by them) or their representative or the trustee under the indenture or other agreement (if any) pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in accordance with the terms of such Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. (d) The provisions of this Section 3.02 shall not apply to any payment with respect to which Section 3.03 shall apply. Section 3.03. Securities Subordinated to Prior Payment of All Senior Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (a) The holders of all Senior Indebtedness first shall be entitled to receive payment in full of the principal of and any premium and interest due on Senior Indebtedness before the holders of the Securities are entitled to receive any payment on account of the principal of or any premium or interest on the Securities (other than payment in shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, which stock and securities are subordinated to the payment of all Senior Indebtedness and securities received in lieu thereof that at the time may be outstanding, except to the extent that such stock and securities received in lieu of Senior Indebtedness by their terms are expressly not superior in right of payment to the Securities). (b) Any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, which stock and securities are subordinated to the payment of all Senior Indebtedness and securities received in lieu thereof which may at the time be outstanding), to which the holders of the Securities and any related coupons would be entitled except for the provisions of this Section 3.03, shall be paid by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or other trustee or agent, directly to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution or provision for such Senior Indebtedness to the holders of such Senior Indebtedness. 20 (c) In the event that notwithstanding the foregoing provisions of this Section 3.03, any payment or distribution of assets of the Company of any kind or character, whether such payment shall be in cash, property or securities (other than shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan or reorganization or readjustment, which stock and securities are subordinated to the payment of all Senior Indebtedness and securities received in lieu thereof that at the time may be outstanding, except to the extent that such stock and securities received in lieu of Senior Indebtedness by their terms are expressly not superior in right of payment of the Securities), and the Company shall have made payment to the Trustee or directly to the holders of the Securities on account of principal or any premium or interest on the Securities before all Senior Indebtedness is paid in full, or effective provision made for its payment, such payment or distribution (subject to the provisions of Section 3.06 and Section 3.07) shall be received and held in trust for and shall be paid over by the Trustee or the holders of the Securities to the holders of the Senior Indebtedness remaining unpaid or unprovided for or their representative or representatives, or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, for application to the payment of such Senior Indebtedness until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution or provision for such Senior Indebtedness to the holders of such Senior Indebtedness. (d) The consolidation of the Company with, or the merger of the Company into, another Person or the dissolution, winding up, liquidation or reorganization of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article X shall not be deemed a dissolution, winding up, liquidation or reorganization of the Company for the purposes of this Section 3.03 if the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, as a part of such consolidation, merger, conveyance, transfer or lease, shall comply with the conditions set forth in Article X. Section 3.04. Securityholders to be Subrogated to Rights of Holders of Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness, the holders of the Securities and any related coupons shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets of the Company applicable to the Senior Indebtedness until all amounts owing on the Securities shall be paid in full. For the purpose of such subrogation, no payments or distributions to the holders of the Senior Indebtedness (whether by or on behalf of the Company or by or on behalf of the holders of the Securities or any related coupons) by virtue of this Article III that otherwise would have been made to the holders of the Securities or coupons shall be deemed, as between the Company and the holders of the Securities and coupons, to be payment by the Company to or on account of the Senior Indebtedness. Section 3.05. Obligation of the Company Unconditional, etc. The provisions of this Article III are and are intended solely for the purpose of defining the relative rights of the holders of the Securities and any related coupons on the one hand and the holders of the Senior Indebtedness on the other hand. Nothing contained in this Article III or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company and the holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the holders of the Securities the principal of and any premium and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders of the Securities or the coupons and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything in this Article III or elsewhere in this Indenture prevent the Trustee or the holder of any Security 21 or coupon from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Three of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Nothing contained in this Article Three is intended to alter the rights between the holders of the Securities and any related coupons and the Company's creditors other than the holders of the Securities or coupons and the holders of Senior Indebtedness. Upon any payment or distribution of assets of the Company referred to in this Article III, the Trustee, subject to the provisions of Section 6.01, and the holders of the Securities and any related coupons shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any dissolution, winding up, liquidation or reorganization proceedings are pending, or a certificate of the liquidating trustee or agent or other person making any distribution to the Trustee or to the holders of the Securities and coupons, for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of, the amounts of, the amounts payable on, the amount or amounts paid or distributed on and all other facts pertinent to the Senior Indebtedness and other indebtedness of the Company and all other facts pertinent to this Article III. Section 3.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice. The Company shall give prompt written notice to a Responsible Officer of the Trustee located at its principal office of any fact known to the Company that would prohibit the making of any payment to or by the Trustee with respect to the Securities or any related coupons. Notwithstanding the provisions of Section 3.01 or Section 3.02 or any other provision of this Indenture, the Trustee shall not at any time be charged with knowledge of the existence of any fact that would prohibit the making of any payment of money to or by the Trustee, unless and until the Trustee shall have received at the principal office of the Trustee written notice of such facts from the Company or from one or more holders of Senior Indebtedness or from any trustee for such holders; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.01, shall be entitled to assume that no such facts exist. Section 3.07. Application by Trustee of Money Deposited with It. Anything in this Indenture to the contrary notwithstanding, any deposit of money by the Company with the Trustee (whether or not in trust) for the payment of the principal of or any premium or interest on any Securities or coupons shall be subject to the provisions of Sections 3.01, 3.02, 3.03 and 3.04 except that, if not less than three Business Days prior to the date on which by the terms of this Indenture any such money may become payable for any purpose (including without limitation the payment of principal of or any premium or interest on any Security and any amounts immediately due and payable upon the execution of any instrument acknowledging satisfaction and discharge of this Indenture as provided in Article XIV) the Trustee shall not have received with respect to such money the notice provided for in Section 3.06, then, anything contained in this Article III to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which it was received, and shall not be affected by any notice to the contrary that may be received by it during such three Business Day period. Section 3.08. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting under this Indenture, the term "Trustee" as used in this Article III shall be construed (unless the context otherwise requires) as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article III in addition to or in place of the Trustee. Section 3.09. Subordination Rights Not Impaired by Acts or Omissions of Company or Holders of Senior Indebtedness. No right of any present or future holder of any Senior Indebtedness to enforce subordination as provided in this Article III shall be prejudiced or impaired at any time in any way by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any 22 such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge of such act, failure to act or noncompliance with any such holder may have or otherwise be charged with. Section 3.10. Securityholders Authorize Trustee to Effectuate Subordination of Securities. Each holder of the Securities by his acceptance of a Security authorizes and expressly directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Three and appoints the Trustee his attorney-in-fact for such purpose, including in the event of any dissolution, winding up, liquidation or reorganization of the Company (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise), action tending towards liquidation of the business and assets of the Company, the immediate filing of a claim for the unpaid balance of its or his Securities in the form required in such proceedings and action causing such claim to be approved. If the Trustee does not file a proper claim or proof of debt in the form required in such proceeding prior to 30 days before the expiration of the time to file such claim or claims, then the holder or holders of Senior Indebtedness hereby are authorized to and have the right to file and hereby are authorized to file an appropriate claim for and on behalf of the holders of such Securities. Section 3.11. Right of Trustee to Hold Senior Indebtedness. The Trustee shall be entitled to all the rights set forth in this Article III in respect of any Senior Indebtedness at any time held by it to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder. Section 3.12. Article III Not to Prevent Events of Default. The failure to make a payment on account of principal or any premium or interest by reason of any provision in this Article III shall not be construed as preventing the occurrence of an Event of Default under Section 5.01. Section 3.13. Trustee Not Fiduciary for Holders of Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article III or otherwise. ARTICLE IV. PARTICULAR COVENANTS OF THE COMPANY Section 4.01. Payment of Principal and Interest. The Company duly and punctually will pay or cause to be paid the principal of and any premium and interest on the Securities of each series at the places, at the respective times and in the manner provided in this Indenture and in the Securities. Any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. Section 4.02. Offices for Notices and Payments, etc. So long as any Securities of a series remain Outstanding, the Company will maintain in each Place of Payment for such series of Securities an office or agency where the Securities of that series (but, except as otherwise provided below, unless such Place of Payment is located outside the United States, not Bearer Securities) may be presented for payment, for registration of transfer and for exchange as provided in this Indenture and where notices 23 and demands to or upon the Company in respect of the Securities or of this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series that is located outside the United States where Securities of such series and the related coupons may be presented for payment. The Company will give to the Trustee prompt written notice of the location of each such office or agency and of any change of location thereof. In case the Company shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the principal office of the Trustee, and the Company hereby initially appoints the Trustee its agent to receive all such presentations and demands, except that Bearer Securities of that series and the related coupons may be presented for payment at the place specified for that purpose pursuant to Section 2.01(e). Unless otherwise provided pursuant to Section 2.01, the Company hereby initially designates as the Place of Payment for each series of Securities (other than Bearer Securities of that series and the related coupons) the Borough of Manhattan, The City of New York, New York and appoints the office or agency of the Trustee as Paying Agent in such city. Notwithstanding any other provisions to the contrary, the Company at its option may make payment of principal and any premium and interest with respect to any Registered Security by check mailed to the Person entitled thereto, as such address appears on the Security Register, except that a holder of $10,000,000 or more in aggregate principal amount of Securities of such series and of like tenor and terms will be entitled to receive payments by wire transfer of immediately available funds if appropriate wire transfer instructions shall have been received in writing by the Trustee not later than ten Business Days prior to the applicable Interest Payment Date. No payment of principal of or any premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that payment of principal of and any premium and interest on any Bearer Security may be made at an office or agency of, and designated by, the Company located in the United States if (but only if) payment of the full amount of such principal, premium or interest at all offices outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions and the Trustee receives an Opinion of Counsel that such payment within the United States is legal. Unless otherwise provided as contemplated by Section 2.01 with respect to any series of Securities, at the option of the holder of any Bearer Security or related coupon payment may be made by mailing a check to an address outside the United States or by transfer to an account maintained by the payee with a bank located outside the United States. The Company also from time to time may designate one more offices or agencies (in or outside of such Place of Payment) where the Securities of one or more series and any appurtenant coupons (subject to the preceding paragraph) may be presented or surrendered for any and all such purposes, and from time to time may rescind such designations. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such office or agency. Section 4.03. Provisions as to Paying Agent. (a) The Company, with respect to the Securities of each series, prior to each due date of principal of or any premium or interest on such Securities, will deposit with the Paying Agent for such Securities a sum sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust for the benefit of the persons entitled to such principal, premium or interest. If the Company shall appoint a Paying Agent other than the Trustee with respect to the Securities of any series, the Company will notify the Trustee of its making, or failure to make, 24 any such payment; and the Company also shall cause any such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.03, as follows: (i) that it will hold all sums held by it as such agent for the payment of the principal of or any premium or interest on such Securities (whether such sums have been paid to it by the Company or by any other obligor on such Securities) in trust for the benefit of the Persons entitled thereto; (ii) that it will give the Trustee notice of any failure by the Company (or by any other obligor on such Securities) to make any payment of the principal of or any premium or interest on such Securities when the same shall be due and payable; and (iii) that it will forthwith pay to the Trustee, at any time during the continuance of an Event of Default, upon the written request of the Trustee, all sums so hold by it as such agent. (b) If the Company shall act as its own Paying Agent with respect to the Securities of any series, on or before each due date of the principal of or any premium or interest on the Securities of such series, it will set aside, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay such principal, premium or interest so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor under such Securities) to make any payment of the principal of or any premium or interest on such Securities when the same shall become due and payable. (c) Notwithstanding anything in this Section 4.03 to the contrary, the Company, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture or for any other reason, may pay or by Company Order direct any Paying Agent to pay to the Trustee all sums held in trust by the Company or any Paying Agent under this Indenture, such sums to be held by the Trustee upon the trusts contained in this Indenture. (d) Notwithstanding anything in this Section 4.03 to the contrary, the agreement to hold sums in trust as provided in this Section 4.03 is subject to Sections 14.03 and 14.04. Section 4.04. Statement as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each calendar year commencing with the first calendar year following the issuance of Securities of any series under this Indenture, a written certificate of the principal executive officer, the principal financial officer or the principal accounting officer of the Company, covering the period from the date of issuance of such Securities to the end of the calendar year in which such Securities were issued, in the case of the first such certificate, and covering the preceding calendar year, in the case of each subsequent certificate, stating, as to each signer of such certificate, that: (a) a review of the activities of the Company during the year and of performance under this Indenture has been made under his supervision; (b) to the best of his knowledge, based on such review, the Company has fulfilled all its conditions and covenants under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such condition or covenant, specifying each such default known to him and the nature and status of such default; and 25 (c) such certificate sets forth as of the end of such year a list of all Principal Constituent Banks. Section 4.05. Notice of Certain Defaults. The Company will deliver to the Trustee within five days after the occurrence thereof written notice of any event which with the giving of notice or the lapse of time or both would be an Event of Default under Section 5.01(c). Section 4.06. Corporate Existence. Except as otherwise provided in Article X, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Securityholders. ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT OR ACCELERATION EVENT Section 5.01. Events of Default. "Event of Default," when used with respect to Securities of any series, means each of the following events unless it is either inapplicable to a particular series or is specifically deleted or modified in the supplemental indenture or resolution of the Board of Directors under which such series of Securities is issued or in the form of Security for such series: (a) default in the payment of any installment of interest upon any of the Securities of that series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; (b) default in the payment of the principal of or any premium on any of the Securities of that series as and when the same shall become due and payable at their Stated Maturity, upon redemption, by declaration or otherwise; (c) default in the payment of any sinking fund installment or analogous obligation as and when the same shall become due and payable by the terms of the Securities of the series; (d) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Securities of such series or in this Indenture (other than a covenant or agreement a default in the performance of which or the breach of which is specifically provided for elsewhere in this Section 5.01 or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than such series), and continuance of such failure for a period of 90 days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of the Securities of such series at the time Outstanding; (e) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or a Principal Constituent Bank in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the 26 Company or a Principal Constituent Bank or for any substantial part of its property, or ordering the winding up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (f) the Company or a Principal Constituent Bank shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or a Principal Constituent Bank or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any of the foregoing. If an Acceleration Event with respect to the Securities of any series at the time Outstanding occurs and is continuing, then and in each such case, unless the principal of all the Securities of such series already shall have become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the principal amount of all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. This provision, however, is subject to the condition that, at any time after such a declaration of acceleration, and before any judgment or decree for the payment of the money due shall have been obtained or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences, if: (i) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay: (A) all matured installments of interest on all the Securities of that series and the principal of and any premium on any and all Securities of that series that shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extend that payment of such interest is enforceable under applicable law) and on such principal and premium at the rate borne by the Securities of that series, to the date of such payment or deposit); and (B) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (ii) any and all defaults with respect to Securities of that series under this Indenture, other than the nonpayment of principal of and accrued interest on Securities that shall have become due by acceleration, shall have been cured or waived as provided in Section 5.07. No such waiver or rescission and annulment shall extend or shall affect any subsequent default or shall impair any right consequent thereon. 27 In case the Trustee or any Securityholder shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee or any Securityholder, then and in every such case the Company, the Trustee and such Securityholders, subject to any determination in such proceeding, shall be restored respectively to their several positions and rights under this Indenture, and all rights, remedies and powers of the Company, the Trustee and such Securityholders shall continue as though no such proceeding had been taken. Section 5.02. Payment of Securities on Default; Suit Therefor. (a) Subject to the provisions of Article III, in case default shall be made in the payment of (i) any installment of interest upon any of the Securities as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (ii) the principal of or any premium on any of the Securities as and when the same shall have become due and payable whether at Maturity of the Securities, by declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities, the whole amount that then shall have become due and payable on all such Securities for principal, premium or interest, or any combination thereof, as the case may be, with interest upon the overdue principal and premium and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest, at the rate borne by the Securities; and, in addition, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation, expenses, disbursements and advances of the Trustee, its agents, attorneys and counsel. (b) In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor on the Securities and coupons and collect in the manner provided by law out of the property of the Company or any other obligor on the Securities and coupons, wherever situated, the money adjudged or decreed to be payable. (c) In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities and coupons under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial proceedings relative to the Company or other obligor on the Securities and coupons, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Securities shall then be due and payable as expressed in the Securities or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 5.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and any premium and interest owing and unpaid in respect of the Securities, and, in case of any judicial proceedings, (i) to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Securityholders allowed in such judicial proceedings relative to the Company or any other obligor on the Securities and coupons, its or their creditors, or its or their property, and (ii) to collect and receive any money or other 28 property payable or deliverable on any such claims, and to distribute the same after the deduction of and expenses; and any receiver, assignee or bankruptcy or reorganization is hereby by each of the Securityholders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee any amount due it for reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel and any other amounts due the Trustee under Section 6.06. To the extent that such payment of reasonable compensation, expenses and counsel fees out of the trust estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other property which the holder of the Securities and coupons may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise. (d) Nothing contained in this Section 5.02 shall be deemed to authorize the Trustee to authorize or consent to or adopt on behalf of any Securityholder any plan of reorganization or arrangement affecting the Securities or related coupons or the rights of any Securityholder, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding; provided, however, that the Trustee may, on behalf of the Securityholders vote for the election of a trustee in bankruptcy or similar official and may be a member of the creditors' committee. (e) All rights of action and of asserting claims under this Indenture, or under any of the Securities or related coupons, may be enforced by the Trustee without the possession of any of the Securities or coupons, or the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of the holders of the Securities and related coupons. Section 5.03. Application of Money Collected by Trustee. Any money collected by the Trustee with respect to any series of Securities or related coupons pursuant to Section 5.02 shall be applied, subject to the provisions of Article III, in the order following, at the date or dates fixed by the Trustee for the distribution of such money, upon presentation of the several Securities of such series or coupons, or both, as the case may be, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid: FIRST: To payment of all amounts then due the Trustee under Section 6.06; SECOND: In case the principal of the Outstanding Securities of that series shall not have become due and be unpaid, to the payment of interest on the Securities of that series in the order of the Maturity of the installments of such interest, with interest (to the extent enforceable under applicable law) upon the overdue installments of interest at the rate borne by the Securities of that series, such payments to be made ratably to the persons entitled thereto; and THIRD: In case the principal of the Outstanding Securities of that series shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Securities of that series for principal and any premium and interest, with interest on the overdue principal and premium and (to the extent enforceable under applicable law) upon overdue installments of interest at the rate borne by the Securities of that series; and in case such money shall be insufficient to pay in full 29 the whole amounts so due and unpaid upon the Securities of that series, then to the payment of such principal and any premium and interest without preference or priority of principal over interest, or of interest over principal or of any premium over principal or interest, or of principal or interest over any premium or of any installment of interest over any other installment of interest, or of any Security of that series over any other Security of that series, or of any coupon related to a Security of a series over any other coupon related to a Security of the same series, ratably to the aggregate of such principal and any premium and accrued and unpaid interest. Section 5.04. Proceedings by Securityholders. No holder of any Security of any series or any related coupon shall have any right to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy under this Indenture, unless such holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as provided in Section 5.01, and unless also (i) the holders of not less than 25% in aggregate principal amount of the Securities of that series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee under this Indenture and shall have offered to the Trustee such reasonable indemnity as the Trustee may require against the costs, expenses and liabilities to be incurred in compliance with such request, (ii) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and (iii) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the holders of a majority in principal amount of the Outstanding Securities of that series; it being understood and intended, and being expressly covenanted by each Person who acquires and holds a Security or related coupon with every other such Person, that no one or more holders of Securities shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other holder of such Securities or coupons, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner provided in this Section 5.04 and for the equal, ratable and common benefit of all holders of Securities and coupons. Notwithstanding any other provision of this Indenture, however, the right of any holder of any Security to receive payment of the principal of and any premium and interest on such Security on or after the respective Stated Maturities, or to institute suit for the enforcement of any such payment on or after such respective dates against the Company, shall not be impaired or affected without the consent of such holder. Section 5.05. Proceedings by Trustee. In case of an Event of Default under this Indenture, the Trustee in its discretion may proceed to protect and enforce its rights and the rights of the Securityholders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other proper remedy or legal or equitable right vested in the Trustee by this Indenture or by law. Section 5.06. Remedies Cumulative and Continuing; Delay or Omission Not Waiver. All rights, powers and remedies conferred upon or reserved to the Trustee or to the Securityholders, to the extent permitted by law, shall be deemed cumulative and not exclusive of any thereof or of any other rights, powers and remedies available to the Trustee or the holders of the Securities and related coupons, now or hereafter existing, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture; and no delay or omission of the Trustee or of 30 any holder of any of the Securities or related coupons to exercise any such right, power or remedy shall impair any such right, power or remedy, or shall be construed to be a waiver of any default or an acquiescence in such default; and, subject to the provisions of Section 5.04, every power and remedy conferred upon or reserved to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders. The assertion of any right, power or remedy shall not prevent the concurrent assertion of any other right, power or remedy. Section 5.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders. (a) The holders of a majority in aggregate principal amount of the Securities of all series affected (voting as one class) at the time Outstanding determined in accordance with Section 7.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee; provided, however, that (i) such direction may not be in conflict with law or this Indenture or expose the Trustee to personal liability or be unduly prejudicial to the holders of the Securities and related coupons not joining in the direction, it being understood that (subject to Section 6.01) the Trustee shall have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such holders, and (ii) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with this Indenture and such direction. (b) Prior to any declaration that the principal of the Outstanding Securities of any series is due and payable, the holders of a majority in aggregate principal amount of the Securities of that series at the time Outstanding on behalf of the holders of all of the Securities of that series may waive any past default or Event of Default or Acceleration Event under this Indenture and its consequence except a default under a covenant in this Indenture that, pursuant to Section 9.02, cannot be modified without the consent of each holder of a Security of the series affected thereby. Upon any such waiver the Company, the Trustee and the holders of the Securities of that series and the related coupons shall be restored to their former positions and rights under this Indenture, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or Acceleration Event or impair any right consequent thereon. Whenever any default or Event of Default or Acceleration Event under this Indenture shall have been waived as permitted by this Section 5.07, such default or Event of Default or Acceleration Event, for all purposes of the Securities, the related coupons and this Indenture, shall be deemed to have been cured and to be not continuing. Section 5.08. Notices of Defaults. The Trustee, within 90 days after the occurrence of a default with respect to Securities of any series, shall mail to all Securityholders of that series, at their addresses shown on the Security Register, notice of all such defaults known to the Trustee, unless such defaults shall have been cured or waived before the giving of such notice (the term "default" for the purpose of this Section 5.08 being hereby defined to mean any event which constitutes or after notice or lapse of time or both would constitute an Event of Default); and provided that, except in the case of default in the payment of the principal of or any premium or interest on any of the Securities of that series or in the making of any sinking fund payment or analogous obligation with respect to Securities of that series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Securityholders of that series. Section 5.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court in its discretion may require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party 31 litigant in such suit of an undertaking to pay the costs of such suit and that such court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant; provided, however, that the provisions of this Section 5.09 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of that series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or any premium or interest on any Security on or after the respective Stated Maturities (or, in the case of redemption or repayment, on or after the redemption date or repayment date). ARTICLE VI. CONCERNING THE TRUSTEE Section 6.01. Duties and Responsibilities of Trustee. In case an Event of Default has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, its own willful misconduct or any action or failure to act taken or omitted by it in bad faith, except that: (a) except during the continuance of an Event of Default: (i) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions of this Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding (determined as provided in Section 7.04) relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. 32 None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.01. The provisions of this Section 6.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act. Section 6.02. Reliance on Documents, Opinions, etc. Subject to the applicable provisions of the Trust Indenture Act and in furtherance thereof and subject to the provisions of Section 6.01: (a) the Trustee may rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; (c) the Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it under this Indenture in good faith and in accordance with such Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonable to it against the costs, expenses and liabilities that may be incurred therein or thereby; (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books and records of the Company to the extent reasonably necessary to verify such facts or matters; 33 (g) the Trustee may execute any of the trusts or powers under this Indenture or perform any duties under this Indenture either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care under this Indenture; (h) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; (i) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty; and (j) except for (i) a default under Sections 5.01 (a), (b) or (c) hereof, or (ii) any other event of which the Trustee has "actual knowledge" and which event with the giving of notice or the passage of time or both, would constitute an Event of Default under this Indenture, the Trustee shall not be deemed to have notice of any default or Event of Default unless specifically notified in writing of such event by the Company or any Holder of the Securities then outstanding; as used herein, the term "actual knowledge" means the actual fact or statement of knowing, without any duty to make any investigation with regard thereto. Section 6.03. No Responsibility for Recitals, etc. The recitals contained in this Indenture and in the Securities (except in the Trustee's certificate of authentication) and in any coupons shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the coupons. The Trustee shall not be accountable for the use or application by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee. Section 6.04. Trustee, Paying Agents or Registrar May Own Securities. Subject to the applicable provisions of the Trust Indenture Act, the Trustee or any Paying Agent or Security registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent or Security registrar. Section 6.05. Money to be Held in Trust. Subject to the provisions of Sections 14.03 and 14.04, all money received by the Trustee, until used or applied as herein provided, shall be held in trust for the purposes for which it was received. Money held by the Trustee need not be segregated from other funds except as provided by law. The Trustee shall be under no liability for interest on any money received by it under this Indenture, provided that the Trustee pays to the Persons entitled thereto all such money when due and payable. Section 6.06. Compensation and Expenses of Trustee. The Company will pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it under this Indenture (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct. The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers under this Indenture, including the costs and expenses or collection. The obligations of the Company under this Section 6.06 shall constitute additional indebtedness under this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) and interest on particular Securities, and the Securities are hereby subordinate to such prior claim. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Article Five hereof, the expenses (including reasonable fees and expenses of its counsel) and the compensation for the services in connection therewith are intended to constitute expense of administration under any applicable bankruptcy law. Section 6.07. Officers' Certificate as Evidence. Subject to the provisions of Section 6.07, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action under this Indenture, such matter (unless other evidence in respect thereof be herein specifically prescribed), in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, may be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such Officers' Certificate, in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith of such Officers' Certificate. 34 Section 6.08. Eligibility of Trustee. The Trustee under this Indenture shall at all times be a corporation organized and doing business under the laws of the United States or any State thereof or of the District of Columbia (or a corporation or other person permitted to act as Trustee by the Commission) authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision of examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 6.08, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.08, the Trustee shall resign immediately in the manner and with the effect specified in Section 6.09. Neither the Company nor any person directly or indirectly controlling, controlled by, or under common control with the Company shall serve as Trustee under this Indenture. Section 6.09. Resignation or Removal of Trustee. (a) The Trustee may resign at any time by giving written notice of such resignation to the Company, by mailing notice of such resignation to the holders of Registered Securities at their addresses as they shall appear on the Security Register, and, if any Bearer Securities are Outstanding, by publishing notice of such resignation in a newspaper of general circulation, in each place of payment for such Bearer Securities, customarily published at least once a day for at least five days in each calendar week. (b) In case at any time any of the following shall occur: (i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six months, or (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.08 and shall fail to resign after written request therefor by the Company or by any such Securityholder, or (iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed or a public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Company may remove the Trustee by written instrument, executed by Company Order authorized by the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee (with written notice of such removal mailed to the holders of Registered Securities at their address as they shall appear on the Security Register), or, subject to the provisions of Section 5.09, any Securityholder who has been a bona fide holder of a Security of Securities for at least six months, on behalf of himself and all others similarly situated, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (c) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company promptly shall appoint 35 a successor Trustee by a Company Order authorized by the Board of Directors, one copy of which instrument shall be delivered to the retiring Trustee and one copy to the successor Trustee. If, within one year after such resignation, removal or incapability or the occurrence of such vacancy, a successor Trustee shall be appointed by the holders of a majority in principal amount of the Securities (voting as a single class) at the time Outstanding by instrument or instruments delivered to the Company and the retiring Trustee, the successor Trustee so appointed, forthwith upon its acceptance of such appointment, shall become the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Securityholders and accepted appointment in the manner provided in Section 6.10 within 60 days after notice of the resignation or removal of the Trustee is mailed to the Securityholders, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months, subject to the provisions of Section 5.09, on behalf of himself and all others similarly situated, may petition any court of competent jurisdiction for the appointment of a successor Trustee. (d) The holders of a majority in aggregate principal amount of the Securities (voting as a single class) at the time Outstanding at any time may remove the Trustee. (e) Any removal of the Trustee and appointment of a successor Trustee pursuant to any of the provisions of this Section 6.09 shall become effective upon acceptance of appointment by the successor Trustee as provided in Section 6.10. Any resignation of the Trustee shall become effective only upon the appointment of a successor Trustee and upon the acceptance of appointment by the successor Trustee as provided in Section 6.10. Section 6.10. Acceptance by Successor Trustee. Any successor Trustee appointed as provided in Section 6.09 shall execute, acknowledge and deliver to the Company and to its predecessor Trustee an instrument accepting such appointment under this Indenture, and thereupon the resignation or removal of the predecessor Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor under this Indenture, with like effect as if originally named as Trustee in this Indenture; but, nevertheless, on the written request of the Company or of the successor Trustee, the Trustee ceasing to act, upon payment of any amounts then due it pursuant to the provisions of Section 6.06, shall execute and deliver an instrument transferring to such successor Trustee all the rights and powers of the Trustee so ceasing to act and shall transfer, assign and deliver to such successor all property and money held by such predecessor Trustee under this Indenture. Upon request of any such successor Trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act nevertheless shall retain a lien upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to the provisions of Section 6.06. No successor Trustee shall accept appointment as provided in this Section 6.10 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 310(a) of the Trust Indenture Act and eligible under the provisions of Section 6.08. Upon acceptance of appointment by a successor trustee as provided in this Section 6.10, the Company shall mail notice of the succession of such Trustee under this Indenture to the holders of Registered Securities at their addresses as they shall appear on the Security Register. If the Company fails to mail such notice within ten days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the Company. 36 Section 6.11. Succession by Merger, etc. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor Trustee under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties to this Indenture provided such corporation shall be qualified under the provisions of Section 310(a) of the Trust Indenture Act and eligible under the provisions of Section 6.08. In case at the time such successor Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor Trustee may authenticate such Securities either in the name of any predecessor Trustee under this Indenture or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation. ARTICLE VII. CONCERNING THE SECURITYHOLDERS Section 7.01. Action by Securityholders. Whenever in this Indenture it is provided that the holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any such other action), the fact that at the time of taking any such action the holders of such specified percentage have joined in such action may be evidenced (i) by any instrument or any number of instruments of similar tenor executed by Securityholders in person or by agent or proxy appointed in writing, (ii) by the record of the holders of Securities voting in favor of such action at any meeting of Securityholders duly called and held in accordance with the provisions of this Article Seven or (iii) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders. The Company may set a record date for purposes of determining the identity of holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall be the later of ten days prior to the first solicitation of such consent or the date of the most recent list of holders furnished to the Trustee pursuant to the provisions of Section 312(a) of the Trust Indenture Act prior to such solicitation. If a record date is fixed, those persons who were holders of Securities at such record date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consents or to revoke any vote or consent previously given, whether or not such persons continue to be holders after such record date. No such vote or consent shall be valid or effective if such vote occurs or such consent is obtained more than 120 days after such record date. Section 7.02. Proof of Execution by Securityholders. (a) Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of any instrument by a Securityholder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. 37 (b) The ownership of Registered Securities of any series shall be proved by the Security Register or by a certificate of the Security registrar of such series. (c) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities in the amount and with the serial numbers therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (i) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (ii) such Bearer Security is produced to the Trustee by some other Person, (iii) such Bearer Security is surrendered in exchange for a Registered Security or (iv) such Bearer Security is no longer Outstanding. The fact and date of execution of any such instrument or writing, the authority of the Person executing the same and the principal amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may also be proved in any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section 7.02(c). (d) The record of any Securityholders' meeting shall be proved in the manner provided in Section 8.07. Section 7.03. Who Are Deemed Absolute Owners. Prior to due presentation of a Registered Security for registration of transfer, the Company, the Trustee, any Paying Agent and any Security registrar may treat the Person in whose name such Registered Security is registered as owner of such Registered Security for the purpose of receiving payment of principal of and any premium and (subject to Section 2.09) interest on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security is overdue and notwithstanding any notation of ownership or other writing on such Registered Security made by anyone other than the Company or any Security registrar, and neither the Company, the Trustee, any Paying Agent nor any Security registrar shall be affected by any notice to the contrary. All such payments so made to any such holder as shown in the Security Register, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for money payable upon any such Registered Security. The Company, the Trustee, any Paying Agent and any Security registrar may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or coupon is overdue, and neither the Company, the Trustee, any Paying Agent nor any Security registrar shall be affected by any notice to the contrary. All such payments so made to any such bearer shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for money payable upon any such Bearer Security. None of the Company, the Trustee, any Paying Agent or the Security registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. 38 Section 7.04. Company Owned Securities Disregarded. In determining whether the holders of the requisite aggregate principal amount of Securities have concurred in any direction, consent, waiver or other action under this Indenture, Securities that are owned by the Company or any other obliger on the Securities or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obliger on the Securities shall be disregarded and deemed not to be Outstanding for the purpose of any such determination; provided, however, that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action, only Securities that the Trustee knows are so owned shall be so disregarded. Section 7.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by the holders of the percentage in aggregate principal amount of the Securities of any or all series specified in this Indenture in connection with such action, any holder of a Security the serial number of which is shown by the evidence to be included in the Securities the holders of which have consented to such action, by filing written notice with the Trustee as the principal office and upon proof of holding as provided in Section 7.02, may revoke such action so far as concerns such Security. Except as provided in this Section 7.05 any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Security, irrespective of whether or not any notation in regard thereto is made upon such Security or any Security issued in exchange or substitution for such Security. ARTICLE VIII. SECURITYHOLDERS' MEETINGS Section 8.01. Purposes of Meetings. A meeting of Securityholders of any or all series may be called at any time and from time to time pursuant to the provisions of this Article VIII for any of the following purposes: (a) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default under this Indenture and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article V; (b) to remove the Trustee and nominate a successor Trustee pursuant to the provisions of Article VI; (c) to consent to the execution of an indenture or indentures supplemental to this Indenture pursuant to the provisions of Section 9.02; or (d) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Securities under any other provision of this Indenture or under applicable law. Section 8.02. Call of Meetings by Trustee. The Trustee at any time may call a meeting of Securityholders of any or all series to take any action specified in Section 8.01, to be held at such time and at such place in The City of New York for Registered Securities and the City of London, England for Bearer Securities, as the Trustee shall determine. Notice of every meeting of the Securityholders, 39 setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to holders, if any, of Registered Securities of each series affected at their addresses as they shall appear on the Security Register, and shall be provided to holders, if any, of Bearer Securities of each series affected by publication thereof in a newspaper of general circulation, in each Place of Payment for each such series, customarily published at least once a day for at least five days in each calendar week. Such notice to holders of Registered Securities shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting. Such notice to holders of Bearer Securities shall be made by the required publication on at least two dates, the first such publication to be not more than 90 days and the second such publication to be not less 20 days prior to the date fixed for the meeting. Any meeting of Securityholders shall be valid without notice if the holders of all Securities then Outstanding of each series affected are present in person or by proxy or if notice is waived before or after the meeting by the holders of all Outstanding Securities of each series affected, and if the Company and the Trustee are either present by duly authorized representatives or, before or after the meeting, have waived notice. Section 8.03. Call of Meetings by Company or Securityholders. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the holders of at least 10% in aggregate principal amount of the Securities then Outstanding of any or all series, as the case may be, that may be affected by the action proposed to be taken, shall have requested the Trustee to call a meeting of Securityholders of any or all series, as the case may be, that may be so affected, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed or published (as appropriate under Section 8.02) the notice of such meeting within 20 days after receipt of such request, then the Company or such Securityholders may determine the time and the place in the city designated in Section 8.02, as the case may be, for such meeting and may call such meeting to take any action authorized in Section 8.02, by mailing or publishing notice of such meeting as provided in Section 8.02. Section 8.04. Qualifications for Voting. To entitled to vote at any meeting of Securityholders of any series a person shall (i) be a holder of one or more Securities of such series as set forth in the Security Register for such series or (ii) be a person appointed by an instrument in writing as proxy by a holder of one or more Securities of such series, subject to the provisions of Section 7.02. The only persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. Section 8.05. Regulations. (a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. (b) The Trustee, by an instrument in writing, shall appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders as provided in Section 8.03, in which case the Company or the Securityholders calling the meeting, as the case may be, in like manner shall appoint a temporary chairman. A permanent chairman 40 and a permanent secretary of the meeting shall be elected by vote of the holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote. (c) Subject to the provisions of Section 7.04, at any meeting each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount of Securities. (d) No vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Securities held by him or instruments in writing duly designating him as the person to vote on behalf of other Securityholders. Any meeting of Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a majority of those present and the meeting may be held as so adjourned without further notice. Section 8.06. Quorum. The Persons entitled to vote a majority in principal amount of the Outstanding Securities affected by the action proposed to be taken shall constitute a quorum for a meeting of such Securityholders. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting, if convened at the request of holders of Securities, shall be dissolved. In the absence of a quorum in any other case the meeting may be adjourned for a period of not less than ten days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than ten days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.02, except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities affected by the action proposed to be taken which shall constitute a quorum. Section 8.07. Voting. The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballots on which shall be subscribed the signatures of the holders of Securities or of their representatives by proxy and the principal amount of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to such record the original reports of the inspectors of votes on any vote by ballot taken at such meeting and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that such notice was mailed or published as provided in Section 8.02 or 8.03. The record shall show the principal amount of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee. Any record so signed and verified shall be conclusive evidence of the matters started in such record. Section 8.08. No Delay of Rights by Meeting. Nothing in this Article VIII shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders or any rights expressly or impliedly conferred under this Article Eight to make such call, any hindrance or delay in 41 the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders under any of the provisions of this Indenture or of the Securities. ARTICLE IX. SUPPLEMENTAL INDENTURES Section 9.01. Supplemental Indentures Without Consent of Securityholders. The Company, when authorized by the resolutions of the Board of Directors, and the Trustee from time to time and at any time may enter into an indenture or indentures supplemental to this Indenture for one or more of the following purposes: (a) to evidence the succession of another corporation to the Company, or successive successions, and the assumptions by the successor corporation of the covenants, agreements and obligations of the Company pursuant to Article Ten; (b) to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the holders of any series of the Securities or coupons as the Board of Directors and the Trustee shall consider to be for the protection of the holders of such Securities or coupons, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a default or an Event of Default permitting, subject to Article III, the enforcement of all or any of the several remedies set forth in this Indenture; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or, subject to Article III, may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default; (c) to cure any ambiguity or to correct or supplement any provision contained in this Indenture or in any supplemental indenture that may be defective or inconsistent with any other provision contained in this Indenture or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture that shall not adversely affect the interests of the holders of the Securities or any related coupons; (d) to establish the form or terms of Securities of any series as permitted by Section 2.01; (e) to add to, change or eliminate any of the provisions of this Indenture to provided that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal or any premium on Registered Securities or of principal or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities or to permit or facilitate the issuance of Securities in uncertificated form, provided any such action shall not adversely affect the interests of the holders of Securities of any series or any related coupons; (f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture; provided, however, that such action shall not adversely affect the interests of the holders of the Securities of any series; 42 (g) to provide for the documentation necessary for the issuance of Securities outside the United States of America; (h) to provide for the documentation necessary for the issuance of Securities at an issue price lower than the principal amount thereof, including to provide that upon the redemption or acceleration of the Maturity thereof an amount less than the principal amount thereof shall become due and payable and that such amount shall be used to determine the relative voting rights of the holders thereof; or (i) to conform the Indenture to the provisions of the Trust Indenture Act as then in effect. The Trustee hereby is authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be contained in such supplemental indenture and to accept the conveyance, transfer and assignment of any property under such supplemental indenture, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture that affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding the provisions of Section 9.02. Section 9.02. Supplemental Indentures with Consent of Securityholders of a Series. With the consent (evidenced as provided in Section 7.01) of the holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected by such supplemental indenture or indentures, the Company, when authorized by the resolutions of the Board of Directors, and the Trustee from time to time and at any time may enter into an indenture or indentures supplemental to this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the holders of the Securities of each such series; provided, however, that without the consent of the holder of each Security affected thereby no such supplemental indenture shall: (a) change the Stated Maturity of the principal of or any premium or any installment of interest on, any Security, or reduce the principal amount of any Security or any premium or interest on any Security, or reduce the amount of principal payable upon acceleration of the Maturity of any Original issue Discount Security, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest on any Security is payable, or impair the right to institute suit for the enforcement of any such payment on or after its Stated Maturity, or make any change in Article III that adversely affects the rights of any Securityholder; (b) reduce the percentage in principal amount of Securities the consent of whose holders is required for any such supplemental indenture or the consent of whose holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults under this Indenture and their consequences provided for in this Indenture; or (c) modify the provisions of Section 5.01 providing for the rescinding and annulment of a declaration accelerating the Maturity of the Securities of any series, or any of the provisions of this Section 9.02 or Section 5.07(b), except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived. Upon request of the Company, accompanied by a copy of the resolutions of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders of such series as aforesaid, the Trustee shall join with the Company in the execution of such supplemental 43 indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obliged to, enter into such supplemental indenture. It shall not be necessary for the consent of the Securityholders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Section 9.03. Compliance with Trust Indenture Act: Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article IX shall comply with the Trust Indenture Act as then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified and amended in accordance with such supplemental indenture and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of the series of Securities affected thereafter shall be determined, exercised and enforced under this Indenture subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. Section 9.04. Notation on Securities. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article IX may bear a notation in form acceptable to the Trustee as to any matter provided for in such supplemental indenture. If the Company so shall determine, new securities of any series and any related coupons so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange, as provided in Section 2.06, for the Outstanding Securities of such series and any related coupons, upon surrender of such Outstanding Securities of such series and any related coupons. Section 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, shall be entitled to receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article IX complies with the requirements of this Article IX. ARTICLE X. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE Section 10.01. Company May Consolidate, etc., on Certain Terms. The Company shall not consolidate with or merge into another corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: (a) the corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer or which leases the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and expressly shall assume, by a supplemental indenture executed and delivered to the Trustee in from satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on the securities, according to their terms, and the performance of 44 every covenant of this Indenture and in such series on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and (c) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and supplemental indenture comply with this Article X and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Section 10.02. Successor Corporation Substituted. Upon any consolidation by the Company with or merger by the Company into any other corporation or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 10.01, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company in this Indenture, and thereafter, except in the case of a lease, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities of each series and any related coupons. Such successor corporation may cause to be signed, and may issue either in its own name or in the name of the Company prior to such succession, any of or all the Securities of each series of under this Indenture which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation instead of upon the Company Order, and subject to all the terms, conditions and limitations in this Indenture, the Trustee shall authenticate and shall deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee on its behalf for that purpose. All the Securities so issued shall have in all respects the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all such Securities had been issued at the date of the execution of this Indenture. ARTICLE XI. REDEMPTION OF SECURITIES Section 11.01. Applicability of Article. Securities of any series that are redeemable before their Stated Maturity shall be redeemable only in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01 for Securities of any series) in accordance with this Article XI, to the extent Article III does not prohibit such a redemption. Section 11.02. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Company Order. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), shall notify the Trustee of such Redemption Date, of the tenor and terms of the Securities of such series to be redeemed and of the principal amount of such Securities to be redeemed. In the case of any redemption 45 of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. Section 11.03. Selection by Trustee of Securities to be Redeemed. If less than all the Securities of any series of like tenor and terms specified by the Company are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and of such tenor and terms not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denominations for such Securities or any integral multiple thereof) of the principal amount of such Registered Securities or such Bearer Securities or a denomination larger than the minimum authorized denomination for such Registered Securities or such Bearer Securities. The Trustee promptly shall notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. Section 11.04. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 8.02 not less than 30 or more than 60 days prior to the Redemption Date. All notices of redemption shall state: (a) the Redemption Date; (b) the Redemption Price; (c) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed; (d) that on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after such date; (e) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons, if any, appertaining thereto maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price; (f) that Bearer Securities may be surrendered for payment only at such place or places that are outside the United States, except as provided in Section 4.02; and (g) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company. 46 Section 11.05. Deposit of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 4.04) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be the same date as the Stated Maturity of an installment of interest thereon) accrued interest on, all the Securities that are to be redeemed on that date; provided, however, that deposits with respect to Bearer Securities shall be made with a Paying Agent or Paying Agents located outside the United States except as otherwise provided in Section 4.02, unless otherwise specified as contemplated by Section 2.01. Section 11.06. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall become due and payable, on the Redemption Date, at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that: (i) installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States except as otherwise provided in Section 4.02); and (ii) installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the holders of such Securities, or one or more predecessor securities, registered as such at the close of business on the relevant record date for the payment of such interest according to the terms of such Securities. If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to hold each of them and any Paying Agent harmless. If thereafter the holder of such Bearer Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such holder shall be entitled to receive the amount so deducted on account of such coupon without interest thereon; provided, however, that interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States except as otherwise provided in Section 4.02. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security or related coupon. Section 11.07. Registered Securities Redeemed in Part. Any Registered Security that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Security without service charge, a new Registered Security or new Registered Securities of the same series and of like tenor and terms, of any authorized denomination as requested by such holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. 47 ARTICLE XII. SINKING FUNDS Section 12.01. Applicability of Article. Subject to Section 3.02(b), the provisions of this Article XII shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.01 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an Optional sinking fund payment. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of the Securities of such series. Section 12.02. Satisfaction of Sinking Fund Payments with Securities. If provided by the terms of Securities of any series, the Company (a) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (b) may apply as a credit Securities of a series that have been repurchased at the option of a holder or redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund, and the amount of such sinking fund payment shall be reduced accordingly. Section 12.03. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment of that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02 and also will deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07. 48 ARTICLE XIII. REPAYMENT AT THE OPTION OF HOLDERS Section 13.01. Terms Set Forth in the Securities. Securities of any series which are repayable at the option of the holders thereof before their Stated Maturity shall be repaid in accordance with the terms set forth in such Securities, to the extent Article III does not prohibit such a repayment. ARTICLE XIV. SATISFACTION AND DISCHARGE OF INDENTURE Section 14.01. Discharge of Indenture. When (a) the Company shall deliver to the Trustee for cancellation all Securities of any series and any related coupons theretofore authenticated (other than any Securities of such series and any related coupons that shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Securities or coupons shall have been authenticated and delivered) and not theretofore cancelled, or (b) all the Securities of any series and any related coupons not theretofore cancelled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit (to the extent Article III does not prohibit such a deposit) with the Trustee, in trust, funds (which thereupon shall become immediately due and payable to the holders or Securities or coupons) sufficient to pay upon Stated Maturity, redemption or repayment at the option of a holder all the Securities of such series and related coupons (other than any Securities of such series and related coupons that shall have been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.06) not theretofore cancelled or delivered to the Trustee for cancellation, including principal and any premium and interest due or to become due prior to such Stated Maturity, Redemption Date or date of repayment, as the case may be, but excluding, however, the amount of any money for the payment of principal of or any premium or interest on the Securities (a) theretofore deposited with the Trustee and repaid by the Trustee to the Company in accordance with the provisions of Section 14.04, or (b) paid to any State or the District of Columbia pursuant to its unclaimed property or similar laws, and if in either case the Company also shall pay or cause to be paid all other sums payable under this Indenture by the Company then this Indenture shall cease to be of further effect with respect to Securities of such series and any related coupons, and the Trustee, on demand of the Company accompanied by an Officers' Certificate and an Opinion of Counsel as required by Section 16.05 and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to Securities of such series and any related coupons. The obligations of the Company to the Trustee under Section 6.06 shall survive the termination of this Indenture. The Trustee shall notify the Securityholders of such series, at the expense of the Company, of the immediate availability of the amount referred to in clause (b) of this Section 14.01 by mailing a notice, first class postage prepaid, to the holders of Securities of such series at their addresses as they appear on the Security Register. 49 Section 14.02. Deposited Money to be Held in Trust by Trustee. Subject to Article III and to Section 14.04, all money deposited with the Trustee pursuant to Section 14.01 shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company if acting as its own Paying Agent, other than as to Bearer Securities, except as provided in Section 4.02), to the holders of the particular Securities and related coupons for the payment of which such money has been deposited with the Trustee, of all sums due and to become due thereon for principal and any premium and interest. Section 14.03. Paying Agent to Repay Money Held. Upon the satisfaction and discharge of this Indenture all money then held by any Paying Agent of the Securities (other than the Trustee), upon demand of the Company, shall be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such money. Section 14.04. Return of Unclaimed Money. Any money deposited with or paid to the Trustee or any Paying Agent for payment of the principal of or any premium or interest on Securities of any series, or then held by the Company in trust for the payment of the principal of or any premium or interest on Securities of any series, and not applied but remaining unclaimed by the holders of Securities of that series for two years after the date upon which the principal or any premium or interest on such Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on demand or, if then held by the Company, shall be discharged from such trust, and all liability of the Trustee thereupon shall cease; and the holder of any of such Securities thereafter, as an unsecured general creditor, shall look only to the Company for payment of such Securities, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, at the expense of the Company, in the case of Registered Securities or Bearer Securities, may cause to be published once, in a newspaper of general circulation in each Place of Payment for such series customarily published on each Business Day (whether or not published on Saturdays, Sundays or holidays) or, in the case of Registered Securities, mail to each such holder, or both in the case of Registered Securities, notice that such money remains unclaimed and that, after a date specified in such notice, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. Section 14.05. Deposits Irrevocable. Any deposits with the Trustee referred to in Section 14.01 shall be irrevocable. If any Securities of a series with respect to which a deposit has been made pursuant to Section 14.01 at the time Outstanding are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. Section 14.06. Reinstatement. If the Trustee is unable to apply any money in accordance with Section 14.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 14.01 until such time as the Trustee is permitted to apply all such money in accordance with Section 14.01. 50 ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS Section 15.01. Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of or any premium or interest on any Security, or for any claim based on any Security or coupon or otherwise in respect of any Security or coupon, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any Security, or because of the creation of any indebtedness represented by any Security or coupon, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities and coupons. ARTICLE XVI. MISCELLANEOUS PROVISIONS Section 16.01. Provisions Binding on Company's Successors. All the covenants, stipulations, promises and agreements contained in this Indenture by the Company shall bind its successors and assigns whether so expressed or not. Section 16.02. Official Acts by Successor Corporation. Any act or proceeding by any provisions of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company. Section 16.03. Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities on the Company may be given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to Mercantile Bancorporation Inc., Attention: Treasurer, P.O. Box 524 St. Louis, Missouri 63166-0524, with a copy to it at P.O. Box 524, St. Louis, Missouri 63166-0524, Attention: General Counsel. Any notice, direction, request or demand by any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the principal office of the Trustee, Attention: Corporate Trust Administration. Section 16.04. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 16.05. Evidence of Compliance with Conditions Precedent. Upon any application or request by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if 51 any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture (other than certificates provided pursuant to Section 4.04, which certificates shall comply with the requirements of Section 4.04) shall include: (i) a statement that the person making such certificate or opinion has read such covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinion contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. The provisions of this Section 16.05 are in furtherance of and subject to Sections 314(c)(1), 314(c)(2) and 314(e) of the Trust Indenture Act. Section 16.06. Legal Holidays. Unless otherwise specified in the manner contemplated by Section 2.01, in any case where the Stated Maturity of principal of or any premium or interest on the Securities will not be a Business Day, payment of such principal, premium or interest need not be made on such date but may be made on the nest following Business Day with the same force and effect as if made on the Stated Maturity and, if such principal, premium or interest is duly paid on such next following Business Day, no interest shall accrue for the period from and after such Stated Maturity to such next following Business Day. Section 16.07. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any provision of the Trust Indenture Act, such required provision shall control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the modified or excluded provision of this Indenture, as the case may be, shall be deemed to apply. Section 16.08. No Security Interest Created. Nothing in this Indenture or in the Securities or coupons, express or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction where property of the Company or its Subsidiaries is located. Section 16.09. Benefits of Indenture. Nothing in this Indenture or in the Securities or coupons, express or implied, shall give to any person, other than the parties to this Indenture, any Paying Agent, any Security registrar and their successors under this Indenture, the holders of Securities or coupons and, to the extent provided in this Indenture, the holders of Senior Indebtedness, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 16.10. Payments to be Made in U.S. Dollars. Notwithstanding anything in this Indenture to the contrary, any payments on or relating to any Security or related coupon shall be made only in U.S. dollars. Section 16.11. Table of Contents Headings, etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions of this Indenture. 52 Section 16.12. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. ---------------------------------------- ______________________________ hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions set forth above in this Indenture. IN WITNESS WHEREOF, MERCANTILE BANCORPORATION INC. has caused this Indenture to be signed and acknowledged by its ________________________________ _________________________________________, and its corporate seal to be affixed hereunto, and the same to be attested by its Secretary, and Harris Trust and Savings Bank has caused this Indenture to be signed and acknowledged by a Vice President, and has caused its corporate seal to be affixed hereunto and the same to be attested by ________________________________________, as of the day and year first written above. MERCANTILE BANCORPORATION INC. By: -------------------------- [Name] [Title] [SEAL] Attest: - ------------------------- Secretary HARRIS TRUST AND SAVINGS BANK, as Trustee By: -------------------------- [Name] [Title] [SEAL] Attest: - ------------------------- Title: 53 STATE OF ) ) ss. COUNTY OF ) On the _____ day of ____________________, 199_____, before me personally came ____________________, to me known, who, being by me duly sworn did depose and say that he resides at ________________________________________ ____________________________________________________________; that he is the ____________________ of Mercantile Bancorporation Inc., one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by the authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. ----------------------------------------- Notary Public [NOTARIAL SEAL] STATE OF ) ) ss.; COUNTY OF ) On the _____ day of ____________________, 199_____, before me personally came ________________________________________, to me known, who, being by me duly sworn did depose and say that he resides at _________________ __________________________________________________; that he is a Vice President of Harris Bank and Trust Company, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by the authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. ----------------------------------------- Notary Public [NOTARIAL SEAL] 54 EX-12.1 5 COMPUTATION OF EARNINGS TO FIXED CHARGES STATEMENT EXHIBIT 12.1 MERCANTILE BANCORPORATION INC. Ratio of Earnings to Fixed Charges (dollars in thousands)
Three Months Years Ended December 31, Ended ------------------------------------------------ March 31, 1997 1996 1995 1994 1993 1992 -------------- -------- -------- -------- -------- -------- Earnings: Earnings before income taxes............. $116,023 $373,750 $430,287 $368,952 $314,940 $247,860 Junior subordinated debt expense......... 2,438 9,750 9,750 9,750 9,750 9,750 Interest on deposits..................... 153,762 603,989 580,869 436,510 451,616 567,519 Interest on indebtedness................. 31,114 120,921 134,597 85,032 56,853 61,318 Rental expense........................... 15,184 15,184 15,010 14,908 14,925 14,280 One-third of rental expense.............. 3,796 5,061 5,003 4,969 4,975 4,760 Ratio of Earnings to Fixed Charges (1): Excluding Interest on Deposits........... 4.00x 3.75x 3.88x 4.70x 5.40x 4.27x Including Interest on Deposits........... 1.62x 1.51x 1.59x 1.69x 1.60x 1.39x
- ------------------- (1) For purposes of calculating the ratio of earnings to fixed charges, earnings consist of earnings before income taxes plus interest and one- third of rental expense. Fixed charges, excluding interest on deposits, consists of interest on indebtedness and one-third of rental expense (which is deemed representative of the interest factor). Fixed charges, including interest on deposits, consists of both the foregoing items plus interest on deposits. EX-23.2 6 CONSENT OF KPMG PEAT MARWICK LLP RE MERCANTILE EXHIBIT 23.2 Independent Auditors' Consent The Board of Directors and Stockholders Mercantile Bancorporation Inc.: We consent to the use of our report incorporated herein by reference and to the reference to our firm under the heading "Experts" in the prospectus. /s/ KPMG Peat Marwick LLP St. Louis, Missouri May 23, 1997 EX-23.3 7 CONSENT OF KPMG PEAT MARWICK LLP RE ROOSEVELT EXHIBIT 23.3 Independent Auditors' Consent The Board of Directors and Stockholders Roosevelt Financial Group, Inc.: We consent to the use of our report incorporated herein by reference and to the reference to our firm under the heading "Experts" in the prospectus. /s/ KPMG Peat Marwick LLP St. Louis, Missouri May 23, 1997 EX-25.1 8 ELIGIBILITY OF TRUSTEE ON FORM T-1 (SENIOR) Exhibit 25.1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ______ HARRIS TRUST AND SAVINGS BANK (Name of Trustee) Illinois 36-1194448 (State of Incorporation) (I.R.S. Employer Identification No.) 111 West Monroe Street, Chicago, Illinois 60603 (Address of principal executive offices) Judith Bartolini, Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois, 60606 312-461-2527 phone 312-461-3525 facsimile (Name, address and telephone number for agent for service) MERCANTILE BANCORPORATION INC.. (Name of obligor) Missouri 43-0951744 (State of Incorporation) (I.R.S. Employer Identification No.) One Mercantile Center St. Louis MO 63166-0524 (Address of principal executive offices) Senior Notes (Title of indenture securities) 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Commissioner of Banks and Trust Companies, State of Illinois, Springfield, Illinois; Chicago Clearing House Association, 164 West Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System,Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Harris Trust and Savings Bank is authorized to exercise corporate trust powers. 2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee, describe each such affiliation. The Obligor is not an affiliate of the Trustee. 3. thru 15. NO RESPONSE NECESSARY 16. LIST OF EXHIBITS. 1. A copy of the articles of association of the Trustee is now in effect which includes the authority of the trustee to commence business and to exercise corporate trust powers. A copy of the Certificate of Merger dated April 1, 1972 between Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which constitutes the articles of association of the Trustee as now in effect and includes the authority of the Trustee to commence business and to exercise corporate trust powers was filed in connection with the Registration Statement of Louisville Gas and Electric Company, File No. 2-44295, and is incorporated herein by reference. 2. A copy of the existing by-laws of the Trustee. A copy of the existing by-laws of the Trustee was filed in connection with the Registration Statement of Commercial Federal Corporation, File No. 333-20711, and is incorporated herein by reference. 3. The consents of the Trustee required by Section 321(b) of the Act. (included as Exhibit A on page 2 of this statement) 4. A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. (included as Exhibit B on page 3 of this statement) 1 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 14th day of May, 1997. HARRIS TRUST AND SAVINGS BANK By: /s/ J. Bartolini ----------------------------- J. Bartolini Vice President EXHIBIT A The consents of the trustee required by Section 321(b) of the Act. Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that reports of examinations of said trustee by Federal and State authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. HARRIS TRUST AND SAVINGS BANK By: /s/ J. Bartolini ----------------------------- J. Bartolini Vice President 2 EXHIBIT B Attached is a true and correct copy of the statement of condition of Harris Trust and Savings Bank as of December 31, 1996, as published in accordance with a call made by the State Banking Authority and by the Federal Reserve Bank of the Seventh Reserve District. [LOGO] HARRIS BANK Harris Trust and Savings Bank 111 West Monroe Street Chicago, Illinois 60603 of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of business on December 31, 1996, a state banking institution organized and operating under the banking laws of this State and a member of the Federal Reserve System. Published in accordance with a call made by the Commissioner of Banks and Trust Companies of the State of Illinois and by the Federal Reserve Bank of this District. Bank's Transit Number 71000288
THOUSANDS ASSETS OF DOLLARS Cash and balances due from depository institutions: Non-interest bearing balances and currency and coin......................... $ 1,157,832 Interest bearing balances................................................... $ 658,287 Securities:........................................................................ a. Held-to-maturity securities $ 0 b. Available-for-sale securities $ 2,759,331 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds sold................................................... $ 316,275 Securities purchased under agreements to resell................................... $ 0 Loans and lease financing receivables: Loans and leases, net of unearned income............................. $8,199,096 LESS: Allowance for loan and lease $ 108,408 losses........................................ ---------- Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b)........................................................ $ 8,090,688 Assets held in trading accounts.................................................... $ 185,153 Premises and fixed assets (including capitalized leases)........................... $ 180,043 Other real estate owned............................................................ $ 582 Investments in unconsolidated subsidiaries and associated companies................ $ 82 Customer's liability to this bank on acceptances outstanding....................... $ 78,983 Intangible assets.................................................................. $ 294,420 Other assets....................................................................... $ 542,257 ----------- TOTAL ASSETS $14,263,933 ===========
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LIABILITIES Deposits: In domestic offices.................................................... $ 7,898,588 Non-interest bearing................................................ $3,135,907 Interest bearing.................................................... $4,762,681 In foreign offices, Edge and Agreement subsidiaries, and IBF's......... $ 1,839,922 Non-interest bearing................................................ $ 35,116 Interest bearing.................................................... $1,804,806 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds purchased................................................ $ 1,615,797 Securities sold under agreements to repurchase......................... $ 376,270 Trading Liabilities $ 74,165 Other borrowed money:...................................................... a. With remaining maturity of one year or less $ 697,591 b. With remaining maturity of more than one year $ 9,265 Bank's liability on acceptances executed and outstanding $ 78,983 Subordinated notes and debentures.......................................... $ 310,000 Other liabilities.......................................................... $ 170,785 ----------- TOTAL LIABILITIES $13,071,366 =========== EQUITY CAPITAL Common stock............................................................... $ 100,000 Surplus.................................................................... $ 600,377 a. Undivided profits and capital reserves................................. $ 506,301 b. Net unrealized holding gains (losses) on available-for-sale securities ($14,111) ----------- TOTAL EQUITY CAPITAL $ 1,192,567 ----------- Total liabilities, limited-life preferred stock, and equity capital........ $14,263,933 ===========
I, Steve Neudecker, Vice President of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. STEVE NEUDECKER 1/29/97 We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and, to the best of our knowledge and belief, has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and the Commissioner of Banks and Trust Companies of the State of Illinois and is true and correct. EDWARD W. LYMAN, ALAN G. McNALLY, MARIBETH S. RAHE Directors. 4 EX-25.2 9 ELIGIBILITY OF TRUSTEE ON FORM T-1 (SUBORDINATED) Exhibit 25.2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ______ HARRIS TRUST AND SAVINGS BANK (Name of Trustee) Illinois 36-1194448 (State of Incorporation) (I.R.S. Employer Identification No.) 111 West Monroe Street, Chicago, Illinois 60603 (Address of principal executive offices) Judith Bartolini, Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois, 60606 312-461-2527 phone 312-461-3525 facsimile (Name, address and telephone number for agent for service) MERCANTILE BANCORPORATION INC. (Name of obligor) Missouri 43-095744 (State of Incorporation) (I.R.S. Employer Identification No.) One Mercantile Center St. Louis MO 63166-0524 (Address of principal executive offices) Subordinated Notes (Title of indenture securities) 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Commissioner of Banks and Trust Companies, State of Illinois, Springfield, Illinois; Chicago Clearing House Association, 164 West Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System,Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Harris Trust and Savings Bank is authorized to exercise corporate trust powers. 2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee, describe each such affiliation. The Obligor is not an affiliate of the Trustee. 3. thru 15. NO RESPONSE NECESSARY 16. LIST OF EXHIBITS. 1. A copy of the articles of association of the Trustee is now in effect which includes the authority of the trustee to commence business and to exercise corporate trust powers. A copy of the Certificate of Merger dated April 1, 1972 between Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which constitutes the articles of association of the Trustee as now in effect and includes the authority of the Trustee to commence business and to exercise corporate trust powers was filed in connection with the Registration Statement of Louisville Gas and Electric Company, File No. 2-44295, and is incorporated herein by reference. 2. A copy of the existing by-laws of the Trustee. A copy of the existing by-laws of the Trustee was filed in connection with the Registration Statement of Commercial Federal Corporation, File No. 333-20711, and is incorporated herein by reference. 3. The consents of the Trustee required by Section 321(b) of the Act. (included as Exhibit A on page 2 of this statement) 4. A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. (included as Exhibit B on page 3 of this statement) 1 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 14th day of May, 1997. HARRIS TRUST AND SAVINGS BANK By: /s/ J. Bartolini ----------------------------- J. Bartolini Vice President EXHIBIT A The consents of the trustee required by Section 321(b) of the Act. Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that reports of examinations of said trustee by Federal and State authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. HARRIS TRUST AND SAVINGS BANK By: /s/ J. Bartolini ------------------------------ J. Bartolini Vice President 2 EXHIBIT B Attached is a true and correct copy of the statement of condition of Harris Trust and Savings Bank as of December 31, 1996, as published in accordance with a call made by the State Banking Authority and by the Federal Reserve Bank of the Seventh Reserve District. HARRIS BANK Harris Trust and Savings Bank 111 West Monroe Street Chicago, Illinois 60603 of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of business on December 31, 1996, a state banking institution organized and operating under the banking laws of this State and a member of the Federal Reserve System. Published in accordance with a call made by the Commissioner of Banks and Trust Companies of the State of Illinois and by the Federal Reserve Bank of this District. Bank's Transit Number 71000288
THOUSANDS ASSETS OF DOLLARS Cash and balances due from depository institutions: Non-interest bearing balances and currency and coin.................... $1,157,832 Interest bearing balances................ $658,287 Securities:........................................ a. Held-to-maturity securities $0 b. Available-for-sale securities $2,759,331 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds sold........................ $316,275 Securities purchased under agreements to $0 resell............................... Loans and lease financing receivables: Loans and leases, net of unearned income.. $8,199,096 LESS: Allowance for loan and lease $108,408 losses............................... ------------- Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b)...................... $8,090,688 Assets held in trading accounts..................... $185,153 Premises and fixed assets (including capitalized leases)................................. $180,043 Other real estate owned............................. $582 Investments in unconsolidated subsidiaries and associated companies.............. $82 Customer's liability to this bank on acceptances outstanding............................ $78,983 Intangible assets................................... $294,420 Other assets........................................ $542,257 ------------------ TOTAL ASSETS $14,263,933 ==================
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LIABILITIES Deposits: In domestic offices ..................................... $ 7,898,588 Non-interest bearing ................................ $3,135,907 Interest bearing .................................... $4,762,681 In foreign offices, Edge and Agreement subsidiaries, and IBF's ............................... $ 1,839,922 Non-interest bearing ................................ $ 35,116 Interest bearing .................................... $1,804,806 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds purchased ................................. $ 1,615,797 Securities sold under agreements to repurchase .......... $ 376,270 Trading Liabilities ......................................... $ 74,165 Other borrowed money: a. With remaining maturity of one year or less ......... $ 697,591 b. With remaining maturity of more than one year ....... $ 9,265 Bank's liability on acceptances executed and outstanding .... $ 78,983 Subordinated notes and debentures ........................... $ 310,000 Other liabilities ........................................... $ 170,785 ------------------------- TOTAL LIABILITIES ........................................... $13,071,366 ========================= EQUITY CAPITAL Common stock ................................................ $ 100,000 Surplus ..................................................... $ 600,377 a. Undivided profits and capital reserves .................. $ 506,301 b. Net unrealized holding gains (losses) on available-for- sale securities ....................................... $ (14,111) ------------------------- TOTAL EQUITY CAPITAL ........................................ $ 1,192,567 ------------------------- Total liabilities, limited-life preferred stock, and equity capital ................................................... $14,263,933 =========================
I, Steve Neudecker, Vice President of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. STEVE NEUDECKER 1/29/97 We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and, to the best of our knowledge and belief, has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and the Commissioner of Banks and Trust Companies of the State of Illinois and is true and correct. EDWARD W. LYMAN, ALAN G. McNALLY, MARIBETH S. RAHE Directors. 4 -----END PRIVACY-ENHANCED MESSAGE-----