As filed with the Securities and Registration No. 333-_____
Exchange Commission on May 25, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COLONIAL REALTY LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Delaware 6798 63-1098468
(State or other jurisdiction (Primary standard industrial (I.R.S. employer
of incorporation or classification code number) identification no.)
organization)
2101 Sixth Avenue North, Suite 750
Birmingham, Alabama 35202
(205) 250-8700
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Thomas H. Lowder
2101 Sixth Avenue North, Suite 750
Birmingham, Alabama 35202
(205) 250-8700
(Name, address, including zip code, and telephone number,
including area code of agent for service)
Copies to:
J. Warren Gorrell, Jr.
Alan L. Dye
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this form are being 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, please 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. |_|
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================== =================== ====================== ====================== ==========================
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered(1) registered (2)(3) security price(2)(4) registration fee (4)
- --------------------------------------- ------------------- ---------------------- ---------------------- --------------------------
<S> <C> <C> <C> <C>
Debt securities....................... $257,500,000 (2) $257,500,000 $67,980
- --------------------------------------- ------------------- ---------------------- ---------------------- --------------------------
<FN>
(1) This registration statement also covers delayed delivery contracts which may
be issued by the registrant under which the counterparty may be required to
purchase debt securities.
(2) In U.S. Dollars or the equivalent thereof denominated in one or more foreign
currencies or units of two or more foreign currencies or composite currencies
(such as European Currency Units). The proposed maximum initial offering price
per unit will be determined, from time to time, by the registrant. The amount to
be registered, proposed maximum offering price per unit and proposed aggregate
offering price for each series of debt securities is not specified pursuant to
General Instruction II.D to Form S-3 under the Securities Act of 1933, as
amended.
(3) Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
prospectus included in this registration statement relates also to $142,500,000
of debt securities registered on Form S-3 Registration No. 333-42049 and
unissued as of the date hereof. (4) Estimated solely for purposes of calculating
the registration fee pursuant to Rule 457(o) under the Securities Act of 1933,
as amended.
</FN>
</TABLE>
The registrant hereby amends the 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.
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell theses securities until the registration statement filed with the SEC
is effective. This prospectus is not an offer to sell these securities and is
not soliciting an offer to buy theses securities in any jurisdiction where the
offer or sale is not permitted.
<PAGE>
Subject to completion, dated May 25, 2000
PROSPECTUS
$400,000,000
COLONIAL REALTY LIMITED PARTNERSHIP
Debt Securities
------------
We may from time to time offer in one or more series debt securities
with an aggregate public offering price of up to $400,000,000 (or its equivalent
based on the exchange rate at the time of sale) in amounts, at prices and on
terms to be determined at the time of offering. The debt securities may be
offered in separate series in amounts, at prices and on terms to be described in
one or more supplements to this prospectus.
The specific terms of the debt securities to which this prospectus
relates will be set forth in the applicable prospectus supplement and will
include, where applicable, the specific title, aggregate principal amount,
currency, form (which may be registered or bearer, or certificated or global),
authorized denominations, maturity, rate (or manner of calculation thereof) and
time of payment of interest, any terms for redemption at our option or repayment
at the option of the holder, any terms for any sinking fund payments, additional
covenants and any initial public offering price.
The applicable prospectus supplement also will contain information,
where applicable, about U.S. federal income tax considerations relating to, and
any listing on a securities exchange of, the debt securities covered by the
prospectus supplement.
The debt securities may be offered directly, through agents designated
from time to time by us, or to or through underwriters or dealers. If any agents
or underwriters are involved in the sale of any of the debt securities, their
names, and any applicable purchase price, fee, commission or discount
arrangement with, between or among them, will be set forth, or will be
calculable from the information set forth, in an accompanying prospectus
supplement. For more detailed information, see "Plan of Distribution" on page 26
of this prospectus. No debt securities may be sold without delivery of a
prospectus supplement describing the method and terms of the offering of the
debt securities.
We encourage you to read this entire
prospectus carefully, including the section
entitled "Risk Factors" beginning on page 4.
Neither the Securities Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
.........
The Attorney General of the State of New York has
not passed on or endorsed the merits of
this offering. Any representation to the
contrary is unlawful.
This prospectus is dated May 25, 2000
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this process, Colonial
Realty Limited Partnership, which we generally refer to as the "Company" or
"we," "us," or "our" in this prospectus, may offer and sell the securities
described in this prospectus in one or more offerings up to a total dollar
amount of $400,000,000. This prospectus provides you with a general description
of the securities we may offer. Each time we offer securities, we will provide a
prospectus supplement and attach it to this prospectus. The prospectus
supplement will contain specific information about the terms of the securities
being offered at that time. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement, together with any additional
information you may need to make your investment decision.
WHERE TO FIND ADDITIONAL INFORMATION
The Company files annual, quarterly and special reports and other
information with the SEC. You may read and copy materials the Company has filed
with the SEC at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of its public reference room. The Company's SEC
filings also are available to the public on the SEC's Internet site at
http://www.sec.gov.
The SEC allows the Company to "incorporate by reference" in this prospectus
certain information it files with the SEC, which means that it may disclose
important information in this prospectus by referring the reader to the document
that contains the information. The information incorporated by reference is
considered to be a part of this prospectus, and later information filed with the
SEC will update and supersede this information. The Company incorporates by
reference the documents listed below and any future filings it makes with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, until the offering of securities covered by this prospectus is completed:
o the Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1999;
o the Company's Current Report on Form 8-K dated January 18, 2000 and
filed with the SEC on February 3, 2000; and
o the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this prospectus is delivered, upon his or
her written or oral request, a copy of any or all of the information
incorporated by reference in this prospectus, other than exhibits to such
documents, unless the exhibits are specifically incorporated by reference in
such documents. Written requests for such copies should be addressed to:
Colonial Properties Trust
2101 Sixth Avenue North, Suite 750
Birmingham, Alabama 35203
Attn: Chief Financial Officer
(205) 250-8700
The Company has filed with the SEC a "shelf" registration statement on Form
S-3 under the Securities Act of 1933, relating to the securities that may be
offered by this prospectus. This prospectus is a part of that registration
statement, but does not contain all of the information in the registration
statement. For more detail concerning the Company and any securities offered by
this prospectus, you may examine the registration statement and the exhibits
filed with it at the locations listed in the first paragraph under this heading.
Readers should rely on the information provided or incorporated by
reference in this prospectus or in the applicable supplement to this prospectus.
Readers should not assume that the information in this prospectus and the
applicable supplement is accurate as of any date other than the date on the
front cover of the document.
THE COMPANY
The Company is the "operating partnership" of Colonial Properties Trust, an
Alabama real estate investment trust, or "REIT," whose shares are listed on the
New York Stock Exchange and which we generally refer to as "Colonial Properties"
in this prospectus. We are a fully integrated real estate company engaged in the
ownership, development and operation of multifamily, retail and office
properties. As of December 31, 1999, our real estate portfolio consisted of 111
properties located in Alabama, Florida, Georgia, Mississippi, North Carolina,
South Carolina, Tennessee, Texas, and Virginia. As of December 31, 1999, the
Company owned 52 multifamily apartment communities containing a total of 16,415
apartment units, 41 retail properties containing a total of approximately 13.9
million square feet of retail space, 18 office properties containing a total of
approximately 3.1 million square feet of office space, and certain undeveloped
parcels of land adjacent to or near some of our properties.
As of December 31, 1999, the Company had approximately 1,000 employees
providing a full range of real estate services from our headquarters in
Birmingham, Alabama, from our sixteen regional offices located in the Orlando
and Tampa, Florida, Macon and Roswell, Georgia, Birmingham, Huntsville,
Montgomery and Mobile, Alabama, Greenville, South Carolina and Burlington, North
Carolina metropolitan areas, and from the locations of our properties. Our
principal executive offices are located at 2101 Sixth Avenue North, Suite 750,
Birmingham, Alabama 35203, and our telephone number is (205) 250-8700.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges of the Company for each of the
periods indicated was as follows:
For the twelve months
For the three ended December 31,
months ended ------------------------------------------------
March 31, 2000 1999 1998 1997 1996 1995
- -------------- ---- ---- ---- ---- ----
1.65x 2.03x 2.14x 1.95x 2.28x 1.89x
For purposes of computing these ratios, we calculated earnings by adding
fixed charges (excluding capitalized interest) to income (loss) before gains
from sales of property, income taxes and extraordinary items. "Fixed charges"
consist of (1) interest costs, whether expensed or capitalized, (2) the interest
component of rental expense, and (3) amortization and write-off of debt
discounts and issue costs, whether expensed or capitalized.
<PAGE>
RISK FACTORS
Described below are the risks that we believe are material to investors
who purchase or own our debt securities.
Our performance is subject to general risks associated with the real estate
industry
Our assets may not generate sufficient income and we may not be able to
control our operating costs
If our assets do not generate income sufficient to pay our expenses and
maintain our properties, or if we do not adequately control our operating costs,
we may not be able to service our debt. A number of factors may adversely affect
our ability to generate sufficient income to pay our expenses, maintain our
properties and permit us to service our debt. These factors include:
o whether or not we can attract tenants at favorable rental rates, which will
depend on several factors, including:
-- local conditions such as an oversupply of, or reduction in
demand for, multifamily, retail or office properties;
-- the attractiveness of our properties to residents,shoppers
and tenants; and
-- decreases in market rental rates; and
o our ability to collect rent from our tenants.
Factors that may adversely affect our operating costs include:
o the need to pay for insurance and other operating costs, including real
estate taxes, which could increase over time;
o the need periodically to repair, renovate and relet space;
o the cost of compliance with governmental regulation, including zoning
and tax laws;
o the potential for liability under applicable laws;
o interest rate levels; and
o the availability of financing.
Our expenses may remain constant even if our revenues decrease
The expense of owning and operating a property is not necessarily
reduced when circumstances such as market factors and competition cause a
reduction in income from the property. As a result, if revenues drop, we may not
be able to reduce our expenses accordingly. Loan payments are an example of a
cost that will not be reduced if our revenues decrease. If a property is
mortgaged and we are unable to meet the mortgage payments, the lender could
foreclose on the mortgage and take the property, resulting in a further
reduction in revenues.
We may be unable to renew leases or relet space as leases expire
If our tenants decide not to renew their leases upon their expiration,
we may not be able to relet the space. Even if the tenants do renew or we can
relet the space, the terms of renewal or reletting, including the cost of
required renovations, may be less favorable than current lease terms. If we are
unable to renew the leases or relet the space promptly, or if the rental rates
upon renewal or reletting are significantly lower than expected rates, then our
cash flow and ability to service debt would be adversely affected.
We depend on local economic conditions in our primary markets
As of December 31, 1999, all of our properties were located in the
Sunbelt region of the United States, and 45 of our properties were located in
Birmingham and Montgomery, Alabama, Orlando, Florida and Macon, Georgia. Our
performance and ability to service our debt could be adversely affected by
economic conditions in the Sunbelt region and in Birmingham, Montgomery, Orlando
and Macon in particular.
New acquisitions and developments may fail to perform as expected
Assuming we are able to obtain capital on commercially reasonable
terms, we intend to selectively acquire multifamily, retail or office properties
where we perceive investment opportunities that are consistent with our business
strategies. Newly acquired properties may fail to perform as expected. We may
underestimate the costs necessary to bring an acquired property up to the
standards we have established for its intended market position. In addition, we
may not be in a position or have the opportunity in the future to make suitable
property acquisitions on favorable terms.
Competition for acquisitions could result in increased prices for
properties
We expect other major real estate investors with significant capital to
compete with us for attractive investment opportunities. These competitors
include publicly traded REITs, private REITs, investment banking firms and
private institutional investment funds. This competition could increase prices
for multifamily, retail or office properties.
Our development and expansion activities are subject to risks
We intend to continue to develop new properties and expand existing
properties where we believe that development or expansion is consistent with our
business strategies. New projects subject us to a number of risks, including the
risks that:
o construction delays or cost overruns may increase project costs;
o permanent debt or equity financing may not be available on acceptable
terms to finance new development or expansion projects;
o we may fail to meet anticipated occupancy or rent levels;
o we may fail to secure required zoning, occupancy or other governmental
permits and authorizations; and
o changes in applicable zoning and land use laws may require us to
abandon projects prior to their completion, resulting in the loss of
development costs incurred up to the time of abandonment.
Because real estate investments are illiquid, we may not be able to
sell properties when appropriate
Real estate investments generally cannot be sold quickly. We may not be
able to vary our portfolio promptly in response to economic or other conditions.
This inability to respond to changes in the performance of our investments could
adversely affect our ability to service our debt.
Environmental problems are possible and can be costly
Federal, state and local laws and regulations relating to the
protection of the environment may require a current or previous owner or
operator of real property to investigate and clean up hazardous or toxic
substances or petroleum product releases at the property, without regard to
whether the owner or operator knew or caused the presence of the contaminants.
If unidentified environmental problems arise at one of our properties, we may
have to make substantial payments to a governmental entity or third parties for
property damage and for investigation and clean-up costs. Even if more than one
person may have been responsible for the contamination, we may be held
responsible for all of the clean-up costs incurred. Our liability under
environmental laws could adversely affect our cash flow and our ability to
service our debt.
At one of our properties, the Gadsden Mall in Gadsden, Alabama, four
underground storage tanks were removed in 1989. In connection with the removal
of these gasoline storage tanks, associated petroleum contamination was
discovered in the soil and groundwater. We are currently working with the state
regulatory agency to remediate the contamination in accordance with applicable
requirements. Because the tanks were registered with the Alabama Department of
Environmental Management and the facility was in compliance with regulations
prior to the incident, we have been reimbursed under the Alabama Underground
Storage Tank Trust Fund for the costs incurred to date in connection with the
ongoing cleanup, and we expect to be reimbursed for the remaining costs as well.
We have received a "no further action" letter from the Alabama Department of
Environmental Management.
On December 29, 1998, we acquired Bel Air Mall in Mobile, Alabama.
During the course of our environmental due diligence, we identified several
different areas of the property in which contamination is present. One of those
areas involves drycleaner solvent; the others involve petroleum contamination.
The Alabama Department of Environmental Management is overseeing the
investigation and cleanup of the drycleaner contamination. It is possible that a
claim could be asserted against us, as owner of the property, for the
investigation and remediation of the contamination. Under the terms of the
purchase and sale agreement, the former owner of the property purchased a $10
million insurance policy and established escrow accounts totaling $1,275,000 to
cover the costs associated with investigating and remediating the contaminated
areas. In addition, subject to limitations, the seller will be performing all
required remediation of the drycleaner contamination.
Some potential losses are not covered by insurance
We carry comprehensive liability, fire, extended coverage and rental
loss insurance on all of our properties. We believe the policy specifications
and insured limits of these policies are adequate and appropriate. There are,
however, certain types of losses, such as lease and other contract claims, that
generally are not insured. Should an uninsured loss or a loss in excess of
insured limits occur, we could lose all or a portion of the capital we have
invested in a property, as well as the anticipated future revenue from the
property. In such an event, we might nevertheless remain obligated for any
mortgage debt or other financial obligations related to the property.
Debt financing, financial covenants, our degree of leverage and increases in
interest rates could adversely affect our economic performance
Scheduled debt payments could adversely affect our financial condition
Our business is subject to risks normally associated with debt
financing. If principal payments due at maturity cannot be refinanced, extended
or paid with proceeds of other capital transactions, such as new equity capital,
our cash flow will not be sufficient in all years to repay all maturing debt. If
prevailing interest rates or other factors at the time of refinancing, such as
the possible reluctance of lenders to make commercial real estate loans, result
in higher interest rates, increased interest expense would adversely affect cash
flow and our ability to service our debt.
Our obligation to comply with financial covenants in our debt
agreements could restrict our range of operating activities
Our credit facility contains customary restrictions, requirements and
other limitations on our ability to incur debt, including:
o debt to assets ratios;
o secured debt to total assets ratios;
o debt service coverage ratios; and
o minimum ratios of unencumbered assets to unsecured debt.
The indenture under which our senior unsecured debt is issued contains
financial and operating covenants including coverage ratios. Our indenture also
limits our ability to:
o incur secured and unsecured indebtedness;
o sell all or substantially all or our assets; and
o engage in mergers, consolidations and acquisitions.
Our degree of leverage could limit our ability to obtain additional
financing
Our "debt to market capitalization" ratio, which we calculate as total
debt as a percentage of total debt plus the market value of our outstanding
units and the outstanding common shares of beneficial interest of Colonial
Properties, was approximately 51.3% as of December 31, 1999. Increases in our
leverage could adversely affect our ability to obtain additional financing in
the future for working capital, capital expenditures, acquisitions, development
or other general corporate purposes, and may make us more vulnerable to a
downturn in business or the economy generally.
Rising interest rates could adversely affect our cash flow
Advances under our credit facility bear interest at a variable rate
ranging between 80 and 135 basis points above LIBOR. We may borrow additional
money with variable interest rates in the future, and may enter into other
transactions to limit our exposure to rising interest rates as appropriate and
cost effective. Increases in interest rates, or the loss of the benefits of
hedging agreements, would increase our interest expense, which would adversely
affect cash flow and our ability to service our debt.
Some of our general partner's trustees and officers have conflicts of interest
and could exercise influence in a manner inconsistent with holders of interests
in the Company
As a result of their substantial ownership of common shares of our
general partner, Colonial Properties, and units of the Company, Messrs. Thomas
Lowder, Colonial Properties' Chairman of the Board, Chief Executive Officer and
President, and James Lowder, Harold Ripps, Herbert Meisler and William Johnson,
each of whom is a trustee of Colonial Properties, might seek to exert influence
over our decisions as to sales or refinancings of particular properties we own.
Any such exercise of influence might produce decisions which are not in the best
interest of all of the holders of interests in the Company.
The Lowder family, which includes Thomas and James Lowder, who are
brothers, and their affiliates, holds interests in companies that have performed
construction, management, insurance brokerage and other services with respect to
our properties. These companies may perform similar services for us in the
future. As a result, the Lowder family may realize benefits from transactions
between such companies and the Company that are not realized by other holders of
interests in the Company. In addition, Thomas and James Lowder, as trustees of
Colonial Properties, may be in a position to influence the Company to do
business with companies in which the Lowder family has a financial interest. Our
policies may not be successful in eliminating the influence of conflicts.
Moreover, transactions with companies controlled by the Lowder family, if any,
may not be on terms as favorable to us as we could obtain in an arms-length
transaction with a third party.
We do not control our management, leasing and brokerage businesses To
facilitate the maintenance of its REIT qualification, Colonial
Properties has a "non-controlled subsidiary," Colonial Properties Services,
Inc., which conducts management, leasing and brokerage business for properties
the Company does not wholly own. While Colonial Properties owns 99% of the
economic interest in the non-controlled subsidiary, 99% of its voting stock is
owned by members of the Lowder family. We therefore lack the ability to set the
business policies and operations of the non-controlled subsidiary.
We are subject to risks associated with the property management, leasing and
brokerage businesses
In addition to the risks we face as a result of our ownership of real
estate, we face risks relating to the property management, leasing and brokerage
businesses of Colonial Properties Services, Inc., including risks that:
o management contracts or service agreements with third-party owners will
be lost to competitors;
o contracts will not be renewed upon expiration or will not be renewed on
terms consistent with current terms; and
o leasing and brokerage activity generally may decline.
Each of these developments could adversely affect our ability to service our
debt.
We are dependent on external sources of capital
To qualify as a REIT, Colonial Properties must distribute to its
shareholders each year at least 95% (90% for taxable years beginning after
December 31, 2000) of its net taxable income, excluding any net capital gain.
Because of these distribution requirements, it is not likely that we will be
able to fund all future capital needs from income from operations. We therefore
will have to rely on third-party sources of capital, which may or may not be
available on favorable terms or at all. Our access to third-party sources of
capital depends on a number of things, including the market's perception of our
growth potential and our current and potential future earnings. Moreover,
additional equity offerings may result in substantial dilution, and additional
debt financing may substantially increase our leverage.
Our general partner may change our business policies in the future
The major policies of the Company, including its policies with respect
to development, acquisitions, financing, growth, operations, debt capitalization
and distributions, are determined by the board of trustees of Colonial
Properties. Although it has no present intention to do so, the board may amend
or revise these and other policies from time to time. A change in these policies
could adversely affect the Company's financial condition, results of operations
or ability to service debt.
We intend to qualify as a partnership but cannot guarantee that we will qualify
We intend to qualify as a partnership for federal income tax purposes.
However, we will be treated as a corporation for federal income tax purposes if
we are a "publicly traded partnership," unless at least 90% of our income is
qualifying income as defined in the tax code. The income requirements applicable
to REITs and the definition of qualifying income for purposes of this 90% test
are similar in most, but not all, respects. Qualifying income for the 90% test
generally includes passive income, such as specified types of real property
rents, dividends and interest. We cannot guarantee that we will meet this
qualifying income test. If we were to be taxed as a corporation, we would incur
substantial tax liabilities, Colonial Properties would fail to qualify as a REIT
for tax purposes and Colonial Properties' and our ability to raise additional
capital could be impaired.
Our general partner intends to qualify as a REIT, but we cannot guarantee that
it will qualify
We believe that Colonial Properties has qualified for taxation as a
REIT for federal income tax purposes commencing with its taxable year ended
December 31, 1993. If Colonial Properties qualifies as a REIT, it generally will
not be subject to federal income tax on its income that it distributes to its
shareholders. Colonial Properties plans to continue to meet the requirements for
taxation as a REIT, but it may not qualify. Many of the REIT requirements are
highly technical and complex. The determination that Colonial Properties is a
REIT requires an analysis of various factual matters and circumstances that may
not be totally within its control. For example, to qualify as a REIT, at least
95% of Colonial Properties' gross income must come from certain sources that are
itemized in the REIT tax laws. Colonial Properties is also required to
distribute to shareholders at least 95% (90% for taxable years beginning after
December 31, 2000) of its REIT taxable income, excluding capital gains. The fact
that Colonial Properties holds most of its assets through us further complicates
the application of the REIT requirements. Even a technical or inadvertent
mistake could jeopardize Colonial Properties' REIT status. Furthermore, Congress
and the IRS might make changes to the tax laws and regulations, and the courts
might issue new rulings that make it more difficult, or impossible, for Colonial
Properties to remain qualified as a REIT. We do not believe, however, that any
pending or proposed tax law changes would jeopardize its REIT status.
If Colonial Properties failed to qualify as a REIT, it would be subject
to federal income tax at regular corporate rates. Also, unless the IRS granted
relief under certain statutory provisions, Colonial Properties would remain
disqualified as a REIT for the four years following the year Colonial Properties
first failed to qualify. If Colonial Properties failed to qualify as a REIT, it
would have to pay significant income taxes and would therefore have less money
available for investments or for distributions to shareholders. This would
likely have a significant adverse affect on the value of our securities. In
addition, Colonial Properties would no longer be required to make any
distributions to shareholders, but we would still be required to distribute
quarterly substantially all of our net cash revenues to our unitholders.
REIT Modernization Act changes to the REIT asset tests
Currently, a REIT may not own securities in any one issuer if the value
of those securities exceeds 5% of the value of the REIT's total assets or the
securities owned by the REIT represent more than 10% of the issuer's outstanding
voting securities. As a result of the REIT Modernization Act, after December 31,
2000, the 5% value test and the 10% voting security test will be modified in two
respects. First, the 10% voting securities test will be expanded so that REITs
also will be prohibited from owning more than 10% of the value of the
outstanding securities of any one issuer. Second, an exception to these tests
that will allow a REIT to own securities of a subsidiary that exceeds the 5%
value test and the new 10% vote or value test if the subsidiary elects to be a
"taxable REIT subsidiary," which would be a fully taxable corporation. The
expanded 10% vote or value test, however, will not apply to an existing
subsidiary unless it engages in a substantial new line of business or acquires
any substantial asset or Colonial Properties acquires any securities in that
subsidiary after July 12, 1999. Under a new asset test, for taxable years
beginning after December 31, 2000, Colonial Properties will not be able to own
securities of taxable REIT subsidiaries that represent in the aggregate more
than 20% of the value of Colonial Properties' total assets. At the present time,
no decision has been made as to whether Colonial Property Services, Inc. will
elect to be treated as a taxable REIT subsidiary.
Several provisions of the new law will ensure that a taxable REIT
subsidiary will be subject to an appropriate level of federal income taxation.
For example, a taxable REIT subsidiary will be limited in its ability to deduct
interest payments made to an affiliated REIT. In addition, the REIT will have to
pay a 100% penalty tax on some payments that it receives if the economic
arrangements between the REIT, the REIT's tenants, and the taxable REIT
subsidiary are not comparable to similar arrangements between unrelated parties.
USE OF PROCEEDS
Unless otherwise described in the supplement to this prospectus used
to offer specific securities, the Company intends to use the net proceeds from
the sale of securities under this prospectus for general business purposes,
including, without limitation, the development and acquisition of additional
properties as suitable opportunities arise, the repayment of other debt, capital
expenditures, improvements to certain properties in our portfolio, working
capital, financing the repurchase by Colonial Properties from time to time of
its outstanding common shares of beneficial interest and other general purposes.
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general provisions of the
debt securities that may be offered by means of this prospectus. The particular
terms of the debt securities being offered and the extent to which such general
provisions described below apply will be described in a prospectus supplement
relating to such debt securities.
Any debt securities offered by means of this prospectus will be issued
under an indenture dated July 22, 1996, as amended or supplemented from time to
time, between the Company and Bankers Trust Company, as trustee. The indenture
has been filed as an exhibit to the registration statement of which this
prospectus is a part and is available for inspection at the corporate trust
office of the trustee or as described above under "Where to Find Additional
Information" on page 2 of this prospectus. The indenture is subject to, and
governed by, the Trust Indenture Act of 1939, as amended. The statements made in
this prospectus relating to the indenture and the debt securities to be issued
under the indenture are summaries of some, but not all, of the provisions of the
indenture and debt securities and do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all provisions of the
indenture and such debt securities. Unless otherwise specified, all section
references appearing in this summary are to sections of the indenture.
General
The debt securities will be direct, unsecured recourse obligations of
the Company and will rank equally with all other unsecured and unsubordinated
indebtedness of the Company. Unless otherwise specified in the applicable
prospectus supplement, Colonial Properties, our general partner, has no
obligation for payment of principal or interest on the debt securities. Except
as set forth in the indenture or in one or more supplemental indentures
described in a prospectus supplement relating thereto, the debt securities may
be issued without limit as to aggregate principal amount, in one or more series,
in each case as established from time to time in or pursuant to authority
granted by a resolution of the board of trustees of Colonial Properties, as
general partner of the Company, or as established in, or in accordance with, the
indenture or in one or more supplemental indentures. All debt securities of one
series do not have to be issued at the same time and, unless otherwise provided,
a series may be reopened, without the consent of the holders of the debt
securities of that series, for issuances of additional debt securities of such
series (Section 301). The debt securities, while recourse to all of the assets
of the Company, will not be recourse to Colonial Properties, as general partner
of the Company.
The indenture provides that there may be more than one trustee under
the indenture, each with respect to one or more series of debt securities. Any
trustee under the indenture may resign or be removed with respect to one or more
series of debt securities, and a successor trustee may be appointed to act with
respect to such series (section 608 of the indenture). In the event that two or
more persons are acting as trustee with respect to different series of debt
securities, such trustee shall be a trustee of a trust under the indenture
separate and apart from the trust administered by any other trustee, and, except
as otherwise indicated in this summary or in the indenture, any action described
to be taken by each trustee may be taken by each such trustee with respect to,
and only with respect to, the one or more series of debt securities for which it
is trustee under the indenture (Section 609).
The prospectus supplement relating to any series of debt securities
being offered will contain information on the specific terms of those debt
securities, including, without limitation:
o the title of such debt securities;
o the aggregate principal amount of such debt securities and any limit
on such aggregate principal amount;
o the percentage of the principal amount at which such debt securities
will be issued and, if other than the entire principal amount, the
portion of the principal amount payable upon declaration of
acceleration of the maturity thereof;
o the date or dates, or the method for determining the date or dates, on
which the principal of such debt securities will be payable;
o the rate or rates (which may be fixed or variable) at which such debt
securities will bear interest, if any, or the method by which such
rate or rates shall be determined;
o the date or dates, or the method for determining such date or dates,
from which any interest will accrue, the dates on which any interest
will be payable, the regular record dates for interest payment dates,
or the method by which such interest payment dates shall be
determined, the persons to whom such interest shall be payable, and
the basis upon which interest shall be calculated if other than that
of a 360-day year of twelve 30-day months;
o the place or places where the principal of (and premium, if any) and
interest, if any, on such debt securities will be payable, where such
debt securities may be surrendered for conversion or registration of
transfer or exchange and where notices or demands to or upon the
Company in respect of such debt securities and the indenture may be
served;
o the period or periods within which, the price or prices at which, and
the other terms and conditions upon which, such debt securities may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have the option to redeem;
o the obligation, if any, of the Company to redeem, repay or purchase
such debt securities pursuant to any sinking fund or analogous
provision or at the option of a holder of the debt securities, and the
period or periods within which or the date and dates on which, the
price or prices at which and the other terms and conditions upon which
such debt securities will be redeemed, repaid or purchased, in whole
or in part, pursuant to the Company's obligation to redeem, repay or
repurchase such debt securities;
o if other than U.S. dollars, the currency or currencies in which such
debt securities are denominated and/or payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating thereto;
o whether the amount of payments of principal of (and premium, if any)
or interest, if any, on such debt securities may be determined with
reference to an index, formula or other method (which index, formula
or method may, but need not be, based on a currency, currencies,
currency unit or units or composite currency or currencies) and the
manner in which such amounts shall be determined;
o any additions to, modifications of or deletions from the terms of such
debt securities with respect to events of default or covenants set
forth in the indenture;
o whether such debt securities will be issued in certificated and/or
book-entry form;
o whether such debt securities will be in registered or bearer form and,
if in registered form, the denominations thereof if other than $1,000
and any integral multiple of $1,000 and, if in bearer form, the
denominations thereof and the terms and conditions relating thereto;
o the applicability, if any, of the defeasance and covenant defeasance
provisions of Article Fourteen of the indenture;
o whether and under what circumstances the Company will pay any
additional amounts on such debt securities in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such debt securities in lieu of making such
payment;
o the terms and conditions, if any, upon which such debt securities may
be subordinated to other debt of the Company; and
o any other terms of the debt securities not inconsistent with the
provisions of the indenture (Section 301).
The debt securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity
thereof. We refer to such debt securities as "Original Issue Discount
Securities." Special federal income tax, accounting and other considerations
applicable to Original Issue Discount Securities will be described in the
applicable prospectus supplement.
Except as described below under "Certain Covenants--Limitations on
Incurrence of Debt" beginning on page 14 of this prospectus, the indenture does
not contain any provisions that would limit the ability of the Company to incur
debt or that would afford holders of debt securities protection in the event of
a highly leveraged or similar transaction involving the Company or in the event
of a change of control. Restrictions on ownership and transfers of Colonial
Properties' common shares of beneficial interest and preferred shares of
beneficial interest are designed to preserve its status as a REIT and,
therefore, may act to prevent or hinder a change of control. You should refer to
the applicable prospectus supplement for information with respect to any
deletions from, modifications of or additions to the events of default or
covenants of the Company that are described below, on pages 14-20 of this
prospectus, including any addition of a covenant or other provision providing
event risk or similar protection.
Denomination, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, the
debt securities of any series offered by means of this prospectus will be
issuable in denominations of $1,000 and integral multiples of $1,000 (Section
302).
Unless otherwise specified in the applicable prospectus supplement, the
principal of (and applicable premium, if any) and interest on any series of debt
securities will be payable at the corporate trust office of the trustee, the
address of which will be stated in the applicable prospectus supplement;
provided that, at the option of the Company, payment of interest may be made by
check mailed to the address of the person entitled to the interest payment as it
appears in the register for the debt securities or by wire transfer of funds to
such person at an account maintained within the United States (Sections 301,
305, 306, 307 and 1002).
Any interest not punctually paid or duly provided for on any interest
payment date with respect to a debt security will forthwith cease to be payable
to the holder on the applicable regular record date and may either be paid:
o to the person in whose name such debt security is registered at the
close of business on a special record date for the payment of such
defaulted interest to be fixed by the trustee, and notice whereof
shall be given to the holder of such debt security not less than ten
days prior to such special record date; or
o at any time in any other lawful manner, all as more completely
described in the indenture (Section 307).
Subject to certain limitations imposed upon debt securities issued in
book-entry form, the debt securities of any series will be exchangeable for
other debt securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
debt securities at the corporate trust office of the trustee referred to above.
In addition, subject to certain limitations imposed upon debt securities issued
in book-entry form, the debt securities of any series may be surrendered for
conversion or registration of transfer or exchange at the corporate trust office
of the trustee. Every debt security surrendered for conversion, registration of
transfer or exchange must be duly endorsed or accompanied by a written
instrument of transfer. No service charge will be made for any registration of
transfer or exchange of any debt securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith (section 305). If the applicable prospectus supplement
refers to any transfer agent (in addition to the trustee) initially designated
by the Company with respect to any series of debt securities, the Company may at
any time rescind the designation of such transfer agent or approve a change in
the location through which any such transfer agent acts, except that the Company
will be required to maintain a transfer agent in each place of payment for such
series. The Company may at any time designate additional transfer agents with
respect to any series of debt securities offered by means of this prospectus
(Section 1002).
Neither the Company nor the trustee shall be required to:
o issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 15 days
before any selection of debt securities of that series to be redeemed
and ending at the close of business on the day of mailing of the
relevant notice of redemption;
o register the transfer of or exchange any debt security, or portion
thereof, called for redemption, except the unredeemed portion of any
debt security being redeemed in part; or
o issue, register the transfer of or exchange any debt security that has
been surrendered for repayment at the option of the holder, except the
portion, if any, of such debt security not to be so repaid (Section
305).
Merger, Consolidation or Sale
The Company will be permitted to consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with or into, any
other entity, provided that:
o either the Company shall be the continuing entity, or the successor
entity (if other than the Company) formed by or resulting from any
such consolidation or merger or which shall have received the transfer
of such assets shall expressly assume payment of the principal of (and
premium, if any) and interest on all of the debt securities and the
due and punctual performance and observance of all of the covenants
and conditions contained in the indenture;
o immediately after giving effect to such transaction and treating any
indebtedness that becomes an obligation of the Company or any
Subsidiary (as defined below) as a result thereof as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no event of default under the indenture, and no event
which, after notice or the lapse of time, or both, would become such
an event of default, shall have occurred and be continuing; and
o an officer's certificate and legal opinion covering such conditions
described above shall be delivered to the trustee (Sections 801 and
803).
As used in this prospectus, "Subsidiary" means a corporation,
partnership or limited liability company, a majority of the outstanding voting
stock, partnership interests or membership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Company or by one
or more Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having the voting power for the election of
directors, general partners, managers or trustees, as the case may be, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency. Colonial Properties Services, Inc. would not be
considered a Subsidiary of the Company.
Certain Covenants
Limitations on Incurrence of Debt. Under the indenture, the Company
will not, and will not permit any Subsidiary to, incur any Debt (as defined
below), other than intercompany Debt (including Debt owed to Colonial Properties
Services, Inc. arising from routine cash management practices) that is
subordinate in right of payment to the debt securities, if, immediately after
giving effect to the incurrence of such Debt and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Debt of the Company
and its Subsidiaries on a consolidated basis determined in accordance with
generally accepted accounting principles is greater than 60% of the sum of:
o the Company's Adjusted Total Assets (as defined below) as of the end
of the most recent fiscal quarter prior to the incurrence of such
additional Debt;
o the purchase price of any real estate assets or mortgages receivable
(or interests therein) acquired by the Company or any Subsidiary since
the end of such fiscal quarter, including those obtained in connection
with the incurrence of such additional Debt; and
o the net amount of any securities offering proceeds received by the
Company or any Subsidiary since the end of such fiscal quarter (to the
extent that such proceeds were not used to acquire such real estate
assets or mortgages receivable or used to reduce Debt) (Section 1004).
In addition to the foregoing limitations on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Debt if the
ratio of Consolidated Income Available for Debt Service (as defined below) to
the Annual Service Charge (as defined below) for the four consecutive fiscal
quarters most recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5 to 1, on a pro forma basis after
giving effect to the incurrence of such Debt and to the application of the
proceeds thereof (Section 1004(b)).
Further, the Company will not, and will not permit any Subsidiary to,
incur any Debt secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the property of the Company or any
Subsidiary, whether owned at the date of the indenture or thereafter acquired,
which we refer to as "Secured Debt," if, immediately after giving effect to the
incurrence of such Secured Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Secured Debt of the Company and
its Subsidiaries on a consolidated basis is greater than 40% of the sum of:
o the Company's Adjusted Total Assets as of the end of the most recent
fiscal quarter prior to the incurrence of such additional Debt;
o the purchase price of any real estate assets or mortgages receivable
(or interests therein) acquired by the Company or any Subsidiary since
the end of such fiscal quarter, including those obtained in connection
with the incurrence of such additional Debt; and
o the amount of any securities offering proceeds received by the Company
or any Subsidiary since the end of such fiscal quarter (to the extent
that such proceeds were not used to acquire such real estate assets or
mortgages receivable or used to reduce Debt) (Section 1004(c)).
For purposes of the foregoing provisions regarding the limitation on
the incurrence of Debt, Debt shall be deemed to be "incurred" by the Company or
a Subsidiary whenever the Company or Subsidiary shall create, assume, guarantee
or otherwise become liable in respect of the Debt.
Maintenance of Unencumbered Total Asset Value. Under the indenture, the
Company will at all times maintain an Unencumbered Total Asset Value (as defined
below) in an amount not less than 150% of the aggregate principal amount of all
outstanding unsecured Debt of the Company and its Subsidiaries (Section
1004(d)).
Existence. Except as described under "Merger, Consolidation or Sale" on
page 14 of this prospectus, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(by partnership agreement and statute) and franchises; provided, however, that
the Company shall not be required to preserve any right or franchise if it
determines that the preservation of the right or franchise is no longer
desirable in the conduct of its business and that the loss of the right or
franchise is not disadvantageous in any material respect to the holders of the
debt securities (Section 1006).
Maintenance of Properties. Under the indenture, the Company will cause
all of its material properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements of the material properties, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that the
Company and its Subsidiaries shall not be prevented from selling or otherwise
disposing of for value its properties in the ordinary course of business
(Section 1007).
Insurance. Under the indenture, the Company will, and will cause each
of its Subsidiaries to, keep all of its insurable properties insured against
loss or damage at least equal to their then full insurable value with insurers
of recognized responsibility and having an A.M. Best policy holder's rating of
not less than A-:V (Section 1008).
Payment of Taxes and Other Claims. Under the indenture, the Company
will pay or discharge or cause to be paid or discharged, before they shall
become delinquent:
o all taxes, assessments and governmental charges levied or imposed upon
it or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary; and
o all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company or any
Subsidiary,
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings or for which the Company has set apart and maintains an
adequate reserve (Section 1009).
Provision of Financial Information. Under the indenture, whether or not
the Company is subject to Section 13 or 15(d) of the Securities Exchange Act of
1934, which we refer to as the "Exchange Act," the Company will, to the extent
permitted under the Exchange Act, file with the SEC the annual reports,
quarterly reports and other documents which the Company would have been required
to file with the SEC pursuant to such Section 13 or 15(d) if the Company were
subject to those provisions. We refer to these reports and other documents as
the "Financial Information." The Financial Information must be filed with the
SEC on or prior to the respective dates by which the Company would have been
required to file the Financial Information if the Company were subject to
Section 13 or 15(d) of the Exchange Act. We refer to these dates as the
"Required Filing Dates." The Company also will in any event:
o within 15 days of each Required Filing Date, (a) transmit by mail to
all holders of debt securities, as their names and addresses appear in
the security register, without cost to such holders, copies of the
Financial Information and (b) file with the trustee copies of the
Financial Information; and
o if filing such documents by the Company with the SEC is not permitted
under the Exchange Act, promptly supply copies of such documents to
any prospective holder upon written request and payment of the
reasonable cost of duplication and delivery (Section 1010).
As used in this prospectus,
"Adjusted Total Assets" as of any date means the sum of:
o $328,177,823 (which represents the amount determined by multiplying
the price at which Colonial Properties' common shares of beneficial
interest were offered in its initial public offering, or the "IPO," by
the sum of (a) the common shares of beneficial interest of Colonial
Properties issued in the IPO and (b) the units of the Company not held
by Colonial Properties that were issued in connection with the IPO);
o $108,841,000 (which represents the principal amount of outstanding
Debt of the Company immediately following the IPO); and
o the purchase price or cost of any real estate assets or mortgages
receivable (or interests therein) acquired (including the value of any
units issued in connection therewith) or developed after the IPO
(including the cost of tenant improvements) and the amount of any
securities offering proceeds and other proceeds of Debt received after
the IPO (to the extent such proceeds were not used to acquire real
estate assets or mortgages receivable or used to reduce Debt),
adjusted for the proceeds of any real estate assets disposed of by the
Company (up to the purchase price or cost of such assets).
This definition of "Adjusted Total Assets" values the assets owned by
the Company at the time of the IPO at the market capitalization of the Company
at that time, which the Company believes to be a more appropriate measure of the
value of those assets than undepreciated book value, which reflects their
pre-IPO cost before accumulated depreciation.
"Annual Service Charge" as of any date means the amount of any interest
expensed during the four consecutive fiscal quarters most recently ended prior
to such date.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income (as defined below) of the Company and its Subsidiaries
plus amounts which have been deducted for:
o interest on Debt of the Company and its Subsidiaries;
o provision for taxes of the Company and its Subsidiaries based on
income;
o amortization of debt discount;
o provisions for gains and losses on properties;
o depreciation and amortization;
o the effect of any noncash charge resulting from a change in accounting
principles in determining Consolidated Net Income for such period; and
o amortization of deferred charges.
"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted accounting principles.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of:
o borrowed money evidenced by bonds, notes, debentures or similar
instruments;
o debt secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Company or any
Subsidiary; or
o reimbursement obligations in connection with any letters of credit
actually issued or amounts representing the balance deferred and
unpaid of the purchase price of any property except any balance that
constitutes an accrued expense or trade payable;
but only to the extent that any of the items described above (other than letters
of credit) would appear as a liability on the Company's consolidated balance
sheet in accordance with generally accepted accounting principles. In addition,
"Debt" also includes:
o any lease of property by the Company or any Subsidiary as lessee which
is reflected on the Company's consolidated balance sheet as a
capitalized lease in accordance with generally accepted accounting
principles;
o to the extent not otherwise included, any obligation of the Company or
any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary
course of business), indebtedness of another person (other than the
Company or any Subsidiary).
"Unencumbered Total Asset Value" as of any date means the sum of (a)
the portion of Adjusted Total Assets allocable to the Company's real estate
assets and (b) the value of all other assets of the Company and its Subsidiaries
on a consolidated basis determined in accordance with generally accepted
accounting principles (but excluding intangibles and accounts receivable), in
each case which are unencumbered by any mortgage, lien, charge, pledge or
security interest. For purposes of this definition, the portion of Adjusted
Total Assets allocable to each of the 36 properties owned by the Company at the
time of the IPO shall be determined by reference to each such property's
contribution to net operating income of the Company at the time of the IPO, and
the portion allocable to each property acquired or developed after the IPO shall
be equal to the purchase price or cost of such property.
Additional Covenants and/or Modifications to the Covenants Described Above
Any additional covenants of the Company and/or modifications to the
covenants described above with respect to any debt securities or series thereof
offered by means of this prospectus, will be described in the prospectus
supplement relating to such debt securities.
Events of Default, Notice and Waiver
The indenture provides that the following events are "Events of
Default" with respect to any series of debt securities issued thereunder:
o default for 30 days in the payment of any installment of interest on
any debt security of such series;
o default in the payment of principal of (or premium, if any, on) any
debt security of such series at its maturity;
o default in making any sinking fund payment as required for any debt
security of such series;
o default in the performance or breach of any other covenant or warranty
of the Company contained in the indenture (other than a covenant added
to the indenture solely for the benefit of a series of debt securities
issued thereunder other than such series), continued for 60 days after
written notice as provided in the indenture;
o default in the payment of an aggregate principal amount exceeding
$10,000,000 of any debt of the Company or any mortgage, indenture or
other instrument under which such debt is issued or by which such debt
is secured, such default having occurred after the expiration of any
applicable grace period and having resulted in the acceleration of the
maturity of such debt, but only if such debt is not discharged or such
acceleration is not rescinded or annulled;
o certain events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of the Company or any
Significant Subsidiary (as defined below) or the property of either;
and
o any other Event of Default provided with respect to a particular
series of debt securities (Section 501).
As used in this prospectus, "Significant Subsidiary" means any
Subsidiary that is a "significant subsidiary" (within the meaning of Regulation
S-X promulgated under the Securities Act of 1933, as amended) of the Company.
If an Event of Default under the indenture with respect to debt
securities of any series at the time outstanding occurs and is continuing, then
in every such case the trustee or the holders of not less than 25% of the
principal amount of the outstanding debt securities of that series will have the
right to declare the principal amount (or, if the debt securities of that series
are Original Issue Discount Securities (as defined below) or indexed securities,
such portion of the principal amount as may be specified in the terms thereof)
of all the debt securities of that series to be due and payable immediately by
written notice thereof to the Company (and to the applicable trustee if given by
the holders). However, at any time after such a declaration of acceleration with
respect to debt securities of such series (or of all debt securities then
outstanding under the indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
trustee, the holders of not less than a majority in principal amount of
outstanding debt securities of such series (or of all debt securities then
outstanding under the indenture, as the case may be) may rescind and annul such
declaration and its consequences if:
o the Company shall have deposited with the trustee all required
payments of the principal of (and premium, if any) and interest on the
debt securities of such series (or of all debt securities then
outstanding under the indenture, as the case may be), plus certain
fees, expenses, disbursements and advances of the trustee; and
o all events of default, other than the non-payment of accelerated
principal (or specified portion thereof), with respect to debt
securities of such series (or of all debt securities then Outstanding
under the Indenture, as the case may be) have been cured or waived as
provided in the Indenture (Section 502).
The indenture also provides that the holders of not less than a
majority in principal amount of the outstanding debt securities of any series
(or of all debt securities then outstanding under the indenture, as the case may
be) may waive any past default with respect to such series and its consequences,
except a default:
o in the payment of the principal of (or premium, if any) or interest on
any debt security of such series; or
o in respect of a covenant or provision contained in the indenture that
cannot be modified or amended without the consent of the holder of
each outstanding debt security affected thereby (Section 513).
The trustee will be required to give notice to the holders of debt
securities within 90 days of a default under the indenture unless such default
shall have been cured or waived; provided, however, that the trustee may
withhold notice to the holders of any series of debt securities of any default
with respect to such series (except a default in the payment of the principal of
(or premium, if any) or interest on any debt security of such series or in the
payment of any sinking fund installment in respect of any debt security of such
series) if specified responsible officers of the trustee consider such
withholding of notice to be in the interest of those holders (Section 601).
The indenture provides that no holders of debt securities of any series
may institute any proceedings, judicial or otherwise, with respect to the
indenture or for any remedy thereunder, except in the cases of failure of the
trustee, for 60 days, to act after it has received a written request to
institute proceedings in respect of an Event of Default from the holders of not
less than 25% in principal amount of the outstanding debt securities of such
series, as well as an offer of indemnity reasonably satisfactory to it (Section
507). This provision will not prevent, however, any holder of debt securities
from instituting suit for the enforcement of payment of the principal of (and
premium, if any) and interest on such debt securities at the respective due
dates thereof (Section 508).
Subject to provisions in the indenture relating to its duties in case
of default, the trustee is under no obligation to exercise any of its rights or
powers under the indenture at the request or direction of any holders of any
series of debt securities then outstanding under the indenture, unless such
holders shall have offered to the trustee reasonable security or indemnity
(Section 602). The holders of not less than a majority in principal amount of
the outstanding debt securities of any series (or of all debt securities then
outstanding under the indenture, as the case may be) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or of exercising any trust or power conferred upon
such trustee. However, the trustee may refuse to follow any direction which is
in conflict with any law or the indenture, which may involve the trustee in
personal liability or which may be unduly prejudicial to the holders of debt
securities of such series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, the Company will
be required to deliver to the trustee a certificate, signed by one of several
specified officers of Colonial Properties, stating whether or not such officer
has knowledge of any default under the indenture and, if so, specifying each
such default and the nature and status thereof (Section 1011).
Modification of the Indentures
Modifications and amendments of the indenture may be made only with the
consent of the holders of not less than a majority in principal amount of all
outstanding debt securities issued under the indenture which are affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the holder of each such debt security
affected thereby:
o change the stated maturity of the principal of, or any installment of
interest (or premium, if any) on, any such debt security;
o reduce the principal amount of, or the rate or amount of interest on,
or any premium payable on redemption of, any such debt security, or
reduce the amount of principal of an Original Issue Discount Security
that would be due and payable upon declaration of acceleration of the
maturity thereof or would be provable in bankruptcy, or adversely
affect any right of repayment of the holder of any such debt security;
o change the place of payment, or the coin or currency, for payment of
principal or premium, if any, or interest on any such debt security;
o impair the right to institute suit for the enforcement of any payment
on or with respect to any such debt security;
o reduce the above-stated percentage of outstanding debt securities of
any series necessary to modify or amend the indenture, to waive
compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting requirements
set forth in the indenture; or
o modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to
provide that certain other provisions may not be modified or waived
without the consent of the holder of such debt security (Section 902).
The holders of not less than a majority in principal amount of
outstanding debt securities of each series affected thereby have the right to
waive compliance by the Company with certain covenants in the indenture (Section
1013).
Modifications and amendments of the indenture may be permitted to be
made by the Company and the trustee without the consent of any holder of debt
securities for any of the following purposes:
o to evidence the succession of another person to the Company as obligor
under the indenture;
o to add to the covenants of the Company for the benefit of the holders
of all or any series of debt securities or to surrender any right or
power conferred upon the Company in the indenture;
o to add Events of Default for the benefit of the holders of all or any
series of debt securities;
o to add or change any provisions of the indenture to facilitate the
issuance of, or to liberalize certain terms of, debt securities in
bearer form, or to permit or facilitate the issuance of debt
securities in uncertificated form, provided that such action shall not
adversely affect the interests of the holders of the debt securities
of any series in any material respect;
o to change or eliminate any provisions of the indenture, provided that
any such change or elimination shall become effective only when there
are no debt securities outstanding of any series created prior thereto
which are entitled to the benefit of such provision;
o to secure the debt securities;
o to establish the form or terms of debt securities of any series;
o to provide for the acceptance of appointment by a successor trustee or
facilitate the administration of the trusts under the indenture by
more than one trustee;
o to cure any ambiguity, defect or inconsistency in the indenture,
provided that such action shall not adversely affect the interests of
holders of debt securities of any series issued under the indenture in
any material respect; or
o to supplement any of the provisions of the indenture to the extent
necessary to permit or facilitate defeasance and discharge of any
series of such debt securities, provided that such action shall not
adversely affect the interests of the holders of the debt securities
of any series in any material respect (Section 901).
The indenture provides that in determining whether the holders of the
requisite principal amount of outstanding debt securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of debt
securities:
o the principal amount of an Original Issue Discount Security that shall
be deemed to be outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon declaration of acceleration of the maturity
thereof;
o the principal amount of any debt security denominated in a foreign
currency that shall be deemed outstanding shall be the U.S. dollar
equivalent, determined on the issue date for such debt security, of
the principal amount (or, in the case of Original Issue Discount
Security, the U.S. dollar equivalent on the issue date of such debt
security of the amount determined as provided in the preceding clause;
o the principal amount of an indexed security that shall be deemed
outstanding shall be the principal face amount of such indexed
security at original issuance, unless otherwise provided with respect
to such indexed security pursuant to the indenture; and
o debt securities owned by the Company or any other obligor upon the
debt securities or any affiliate of the Company or of such other
obligor shall be disregarded (Section 101).
The indenture contains provisions for convening meetings of the holders
of debt securities of a series (Section 1501). A meeting will be permitted to be
called at any time by the trustee, and also, upon request, by the Company or the
holders of at least 10% in principal amount of the outstanding debt securities
of such series, in any such case upon notice given as provided in the indenture
(Section 1502). Except for any consent that must be given by the holder of each
debt security affected by specified modifications and amendments of the
indenture, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the affirmative vote
of the holders of a majority in principal amount of the outstanding debt
securities of that series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage, which is less than a majority, in principal
amount of the outstanding debt securities of a series may be adopted at a
meeting or adjourned meeting or adjourned meeting duly reconvened at which a
quorum is present by the affirmative vote of the holders of such specified
percentage in principal amount of the outstanding debt securities of that
series. Any resolution passed or decision taken at any meeting of holders of
debt securities of any series duly held in accordance with the indenture will be
binding on all holders of debt securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
persons holding or representing a majority in principal amount of the
outstanding debt securities of a series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which may be
given by the holders of not less than a specified percentage in principal amount
of the outstanding debt securities of a series, the persons holding or
representing such specified percentage in principal amount of the outstanding
debt securities of such series will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, the indenture provides that
if any action is to be taken at a meeting of holders of debt securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver and other action that the indenture expressly provides may be
made, given or taken by the holders of a specified percentage in principal
amount of all outstanding debt securities affected thereby, or the holders of
such series and one or more additional series:
o there shall be no minimum quorum requirement for such meeting; and
o the principal amount of the outstanding debt securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given or taken
under the indenture (Section 1504).
Discharge, Defeasance and Covenant Defeasance
The Company may be permitted under the indenture to discharge certain
obligations to holders of any series of debt securities issued thereunder that
have not already been delivered to the trustee for cancellation and that either
have become due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
trustee, in trust, funds in such currency or currencies, currency unit or units
or composite currency or currencies in which such debt securities are payable in
an amount sufficient to pay the entire indebtedness on such debt securities in
respect of principal (and premium, if any) and interest to the date of such
deposit (if such debt securities have become due and payable) or to the stated
maturity or redemption date, as the case may be.
The indenture provides that, if the provisions of Article Fourteen of
the indenture are made applicable to the debt securities of or within any series
pursuant to Section 301 of the indenture, the Company may elect either:
o to defease and be discharged from any and all obligations with respect
to such debt securities (except for the obligation to pay additional
amounts, if any, upon the occurrence of certain events of tax,
assessment or governmental charge with respect to payments on such
debt securities, and the obligations to register the transfer or
exchange of such debt securities, to replace temporary or mutilated,
destroyed, lost or stolen debt securities, to maintain an office or
agency in respect of such debt securities and to hold moneys for
payment in trust), which we refer to as a "defeasance" (Section 1402);
or
o to be released from its obligations with respect to such debt
securities under certain specified sections of Article Ten of the
indenture as specified in the applicable prospectus supplement, such
that any omission to comply with such obligations shall not constitute
an Event of Default with respect to such debt securities, which we
refer to as a "covenant defeasance" (Section 1403),
in either case upon the irrevocable deposit by the Company with the trustee, in
trust, of an amount, in such currency or currencies, currency unit or units or
composite currency or currencies in which such debt securities are payable at
stated maturity, or Government Obligations (as defined below), or both,
applicable to such debt securities which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient without reinvestment to pay the principal of (and premium, if
any) and interest on such debt securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the
Company has delivered to the trustee an opinion of counsel (as specified in the
indenture) to the effect that the holders of such debt securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance or covenant defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred, and such
opinion of counsel, in the case of defeasance, will be required to refer to and
be based upon a ruling of the Internal Revenue Service or a change in applicable
U.S. federal income tax law occurring after the date of the indenture (Section
1404).
As used in this prospectus, "Government Obligations" means securities
which are:
o direct obligations of the United States of America or the government
which issued the foreign currency in which the debt securities of a
particular series are payable, for the payment of which its full faith
and credit is pledged; or
o obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such
government which issued the foreign currency in which the debt
securities of such series are payable, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of
the United States of America or such government,
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt (Section 101).
Unless otherwise provided in the applicable prospectus supplement, if,
after the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to debt securities of any series:
o the holder of a debt security of such series is entitled to, and does,
elect pursuant to the indenture or the terms of such debt security to
receive payment in a currency, currency unit or composite currency
other than that in which such deposit has been made in respect of such
debt security; or
o a Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which such deposit
has been made, the indebtedness represented by such debt security will
be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and
interest on such debt security as they become due out of the proceeds
yielded by converting the amount so deposited in respect of such debt
security into the currency, currency unit or composite currency in
which such debt security becomes payable as a result of such election
or Conversion Event or such cessation of usage based on the applicable
market exchange rate (Section 1405).
As used in this prospectus, "Conversion Event" means the cessation of
use of:
o a currency, currency unit or composite currency both by the government
of the country which issued such currency and for the settlement of
transactions by a central bank or other public institutions of or
within the international banking community;
o the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Communities;
o any currency unit or composite currency other than the ECU for the
purposes for which it was established.
Unless otherwise provided in the applicable prospectus supplement, all payments
of principal of (and premium, if any) and interest on any debt security that is
payable in a foreign currency that ceases to be used by its government of
issuance shall be made in U.S. dollars (Section 101).
In the event the Company effects covenant defeasance with respect to
any debt securities and such debt securities are declared due and payable
because of the occurrence of any Event of Default other than the Event of
Default described in the fourth clause under "Events of Default, Notice and
Waiver," on page 18 of this prospectus, with respect to certain specified
sections of Article Ten of the indenture (which sections would no longer be
applicable to such debt securities as a result of such covenant defeasance) or
described in the seventh clause under "Events of Default, Notice and Waiver," on
page 19 of this prospectus, with respect to any other covenant as to which there
has been covenant defeasance, the amount in such currency, currency unit or
composite currency in which such debt securities are payable, and Government
Obligations on deposit with the trustee, will be sufficient to pay amounts due
on such debt securities at the time of their stated maturity but may not be
sufficient to pay amounts due on such debt securities at the time of the
acceleration resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance, including
any modifications to the provisions described above, with respect to the debt
securities of or within a particular series.
Redemption of Securities
The indenture provides that the debt securities may be redeemed at any
time at the option of the Company, in whole or in part, at the redemption price
specified in the indenture, except as may otherwise be provided in connection
with any debt securities or series thereof.
From and after notice has been given as provided in the indenture, if
funds for the redemption of any debt securities called for redemption shall have
been made available on such redemption date, such debt securities will cease to
bear interest on the date fixed for such redemption specified in such notice,
and the only right of the holders of the debt securities will be to receive
payment of the redemption price (Section 1106).
Notice of any optional redemption of any debt securities will be given
to holders at their addresses, as shown in the security register, not more than
60 nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the redemption price and the
principal amount of the debt securities held by such holder to be redeemed
(Section 1104).
If the Company elects to redeem debt securities, it will notify the
trustee at least 45 days prior to the redemption date (or such shorter period as
is satisfactory to the trustee) of the aggregate principal amount of debt
securities to be redeemed and the redemption date (Section 1102). If less than
all the debt securities are to be redeemed, the trustee shall select the debt
securities to be redeemed in such manner as it shall deem fair and appropriate.
No Conversion Rights
The debt securities will not be convertible into or exchangeable for
any capital stock of Colonial Properties or equity interest in the Company.
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 identified in the applicable prospectus supplement
relating to such series. Global securities may be issued in either registered or
bearer form and in either temporary or permanent form. The specific terms of the
depository arrangement with respect to a series of debt securities will be
described in the applicable prospectus supplement relating to such series.
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the debt securities offered by means of this
prospectus to or through underwriters for public offering and sale by them, and
also may sell the debt securities offered by means of this prospectus to
investors directly or through agents. Any underwriter or agent involved in the
offer and sale of the debt securities will be named in the applicable prospectus
supplement.
Underwriters may offer and sell the debt securities offered by means of
this prospectus at a fixed price or prices, which may be changed, at prices
related to the prevailing market prices at the time of sale, or at negotiated
prices. The Company also may, from time to time, authorize underwriters acting
as the Company's agents to offer and sell the debt securities upon terms and
conditions set forth in the applicable prospectus supplement. In connection with
the sale of the debt securities, underwriters may be deemed to have received
compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the debt
securities for whom they may act as agent. Underwriters may sell the debt
securities offered by means of this prospectus to or through dealers, and the
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of the debt securities offered by means
of this prospectus, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
prospectus supplement. Underwriters, dealers and agents participating in the
distribution of the debt securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the debt securities may be deemed to be underwriting discounts and
commissions under the Securities Act. Underwriters, dealers and agents may be
entitled, under agreements to be entered into with the Company, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable prospectus supplement, the Company
will authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase debt securities to which the
prospectus supplement relates from the Company at the public offering price set
forth in the prospectus supplement pursuant to "delayed delivery contracts"
providing for payment and delivery on the date or dates stated in the prospectus
supplement. Each delayed delivery contract will be for an amount not less than,
and the aggregate principal amount of debt securities sold pursuant to delayed
delivery contracts shall be not less nor more than, the respective amounts
stated in the applicable prospectus supplement. Institutions with whom delayed
delivery contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but will in all cases be subject
to the approval of the Company. The obligations of the purchasers pursuant to a
delayed delivery contract will not be subject to any conditions except that:
o the purchase by an institution of the debt securities covered by its
delayed delivery contracts shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to
which the institution is subject; and
o if the debt securities are being sold to underwriters, the Company
shall have sold to the underwriters the total principal amount of the
debt securities less the principal amount thereof covered by delayed
delivery contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company and its
Subsidiaries in the ordinary course of business.
<PAGE>
EXPERTS
The consolidated balance sheets as of December 31, 1999 and 1998 and
the consolidated statements of income, partners' capital, and cash flows for
each of the three years in the period ended December 31, 1999, which are
included in the Company's Form 10-K (incorporated herein by reference) have been
incorporated herein in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
LEGAL MATTERS
The legality of the debt securities offered by means of this prospectus
will be passed upon for the Company by Hogan & Hartson L.L.P., Washington, D.C.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses to be incurred in
connection with the issuance and distribution of the debt securities being
registered.
Registration fee............................ $ 68,000
Fees of rating agencies..................... 20,000
Printing and duplicating expenses........... 150,000
Legal fees and expenses..................... 150,000
Accounting fees and expenses................ 20,000
Blue sky fees and expenses.................. 8,000
Fees of trustee (including counsel fees).... 5,000
Miscellaneous............................... 29,000
----------
Total ................................ $450,000
Item 15. Indemnification of Trustees and Officers
Under the Alabama Real Estate Investment Trust Act of 1995 (the
"Alabama REIT law"), a real estate investment trust formed in Alabama is
permitted to eliminate, by provision in its declaration of trust, the liability
of trustees and officers to the trust and its shareholders for money damages
except for liability resulting from (a) actual receipt of an improper benefit or
profit in money, property or services or (b) acts or omissions established by a
final judgment as involving active and deliberate dishonesty and being material
to the matter giving rise to the proceeding. Colonial Properties' Declaration of
Trust includes such a provision eliminating such liability to the maximum extent
permitted by the Alabama REIT law.
The Alabama REIT law permits an Alabama real estate investment trust to
indemnify and advance expenses to its trustees, officers, employees and agents
to the same extent as permitted by Sections 10-2B-8.50 to 10-2B-8.58, inclusive,
of the Code of Alabama, 1975 (the "Alabama Corporate Code") for directors and
officers of Alabama corporations. In accordance with the Alabama Corporate Code,
Colonial Properties' Bylaws require it to indemnify (a) any present or former
trustee, officer or shareholder or any individual who, while a trustee, officer
or shareholder, served or is serving as a trustee, officer, director,
shareholder or partner of another entity at Colonial Properties' express request
who has been successful, on the merits or otherwise, in the defense of a
proceeding to which he was made a party by reason of service in such capacity,
against reasonable expenses incurred by him in connection with the proceeding,
(b) any present or former trustee or officer or any individual who, while a
trustee or officer served or is serving as a trustee, officer, director,
shareholder or partner of another entity at Colonial Properties' express
request, who is made a party to a proceeding by reason of service in such
capacity, against reasonable expenses incurred by him in connection with the
proceeding if (i) he conducted himself in good faith, (ii) he reasonably
believed (A) in the case of conduct in his official capacity with Colonial
Properties, that the conduct was in Colonial Properties' best interest and (B)
in all other cases, that the conduct was at least not opposed to its best
interests, and (iii) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful, provided, however, that
the indemnification provided for in this clause (b) will not be available if it
is established that (1) in connection with a proceeding by or in the right of
Colonial Properties, he was adjudged liable to Colonial Properties, or (2) in
connection with any other proceeding charging improper personal benefit to him,
whether or not involving action in his official capacity, he was adjudged liable
on the basis that personal benefit was improperly received by him, and (c) any
present or former shareholder or any individual who, while a trustee, officer or
shareholder, served or is serving as a trustee, officer, director, shareholder
or partner of another entity at Colonial Properties' express request against any
claim or liability to which he may become subject by reason of such status. In
addition, Colonial Properties' Bylaws require Colonial Properties to pay or
reimburse, in advance of final disposition of a proceeding, reasonable expenses
incurred by a trustee, officer or shareholder or former trustee, officer or
shareholder made a party to a proceeding by reason of such status; provided,
that in the case of a trustee or officer, (i) Colonial Properties shall have
received a written affirmation by the trustee or officer of his good faith
belief that he has met the applicable standard of conduct necessary for
indemnification by Colonial Properties as authorized by the Bylaws, (ii)
Colonial Properties shall have received a written undertaking by or on his
behalf to repay the amount paid or reimbursed by Colonial Properties if it shall
ultimately be determined that the applicable standard of conduct was not met and
(iii) a determination shall have been made, in accordance with Section 8.55 of
the Alabama Corporate Code, that the facts then known to those making the
determination would not preclude indemnification under the provisions of the
Bylaws. Colonial Properties may, with the approval of the trustees, provide such
indemnification and payment or reimbursement of expenses to any trustee, officer
or shareholder or any former trustee, officer or shareholder who served a
predecessor of Colonial Properties and to any employee or agent of Colonial
Properties or a predecessor of Colonial Properties.
Item 16. Exhibits
Exhibit
Number Exhibit
4.1 * Form of Indenture
4.2 ** First Supplemental Indenture between Colonial Realty Limited
Partnership and Bankers Trust
5 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
Debt Securities being registered
12 Calculation of Ratio of Earnings to Fixed Charges
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hogan & Hartson L.L.P. (included as part of Exhibit 5)
24 *** Power of Attorney
25 Statement of Eligibility of Trustee on Form T-1
* Incorporated by reference to the same-numbered exhibit to Registration
Statement No. 333-14401 filed on October 18, 1996.
** Incorporated by reference to Exhibit 10.13.1 to the Colonial Realty Limited
Partnership Form 10-K filed on March 30, 1999.
*** Filed as part of the signature page of this registration statement.
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 this registration statement.
Notwithstanding the foregoing, any increase or decrease in
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 end 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.
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose 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 debt
securities offered therein, and the offering of such debt
securities at that time shall 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 debt securities being registered which remain unsold at
the termination of the offering.
The undersigned registrant hereby undertakes that, for the 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 this
registration statement shall be deemed to be a new registration statement
relating to the debt securities offered herein, and the offering of such debt
securities at that time shall be deemed to be the initial bona fide offering
thereof.
<PAGE>
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 on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Birmingham, State of Alabama on May 25, 2000.
COLONIAL REALTY LIMITED PARTNERSHIP
BY: COLONIAL PROPERTIES TRUST,
ITS GENERAL PARTNER
By: /S/ THOMAS H. LOWDER
----------------------
Thomas H. Lowder
President, Chief Executive
Officer and Chairman of the
Board
POWER OF ATTORNEY
We, the undersigned trustees and officers of Colonial Properties Trust,
the general partner of the registrant, do hereby constitute and appoint Thomas
H. Lowder our true and lawful attorney-in-fact and agent, to do any and all acts
and things in our names and on our behalf in our capacities as trustees and
officers and to execute any and all instruments for us and in our name in the
capacities indicated below, which said attorney and agent may deem necessary or
advisable to enable said registrant to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this registration statement, or any registration
statement for this offering that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, including specifically, but without
limitation, any and all amendments (including post-effective amendments) hereto;
and we hereby ratify and confirm all that said attorney and agent shall do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below as of May 25, 2000:
<PAGE>
Name Title
/S/ THOMAS H. LOWDER President, Chief Executive Officer
- ------------------------------------ and Chairman of the Board
Thomas H. Lowder
/S/ HOWARD B. NELSON, JR. Chief Financial Officer
- ------------------------------------ (Principal Financial Officer)
Howard B. Nelson, Jr.
/S/ KENNETH E. HOWELL Vice President and Controller
- ------------------------------------ (Principal Accounting Officer)
Kenneth E. Howell
/S/ JAMES K. LOWDER Trustee
- ------------------------------------
James K. Lowder
/S/ CARL F. BAILEY Trustee
- ------------------------------------
Carl F. Bailey
/S/ M. MILLER GORRIE Trustee
- ------------------------------------
M. Miller Gorrie
/S/ DONALD T. SENTERFITT Trustee
- ------------------------------------
Donald T. Senterfitt
/S/ CLAUDE B. NIELSEN Trustee
- ------------------------------------
Claude B. Nielsen
/S/ HAROLD W. RIPPS Trustee
- ------------------------------------
Harold W. Ripps
/S/ HERBERT A. MEISLER Trustee
- ------------------------------------
Herbert A. Meisler
/S/ WILLIAM M. JOHNSON Trustee
- ------------------------------------
William M. Johnson
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
4.1 * Form of Indenture
4.2 ** First Supplemental Indenture between Colonial Realty Limited
Partnership and Bankers Trust
5 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
Debt Securities being registered
12 Calculation of Ratio of Earnings to Fixed Charges
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hogan & Hartson L.L.P. (included as part of Exhibit 5)
24 ** Power of Attorney
25 Statement of Eligibility of Trustee on Form T-1
* Incorporated by reference to the same-numbered exhibit to Registration
Statement No. 333-14401 filed on October 18, 1996.
** Incorporated by reference to Exhibit 10.13.1 to the Colonial Realty Limited
Partnership Form 10-K filed on March 30, 1999.
*** Filed as part of the signature page of this registration statement.
EXHIBIT 5
[HOGAN & HARTSON LETTERHEAD]
May 25, 2000
Board of Trustees
Colonial Properties Trust
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35203
Gentlemen:
We are acting as counsel to Colonial Realty Limited Partnership, a
Delaware limited partnership (the "Company"), of which Colonial Properties
Trust, an Alabama real estate investment trust ("CPT"), is the sole general
partner, in connection with the Company's registration statement on Form S-3, as
amended (the "Registration Statement"), filed with the Securities and Exchange
Commission relating to the proposed public offering of up to $257,500,000 in
aggregate amount of one or more series of unsecured debt securities (the "Debt
Securities"), all of which Debt Securities may be offered and sold by the
Company from time to time as set forth in the prospectus which forms a part of
the Registration Statement (the "Prospectus"), and as to be set forth in one or
more supplements to the Prospectus (each, a "Prospectus Supplement"). This
opinion letter is furnished to you at your request to enable you to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5),
in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Certificate of Limited Partnership of the Company, as filed in
the office of the Secretary of State of the State of Delaware on August 9,
1993, certified as of the date hereof by the Secretary of CPT, in its
capacity as general partner of the Company, as then being complete,
accurate and in effect.
3. The Partnership Agreement, dated as of October 19, 1999, as
amended, certified as of the date hereof by the Secretary of CPT, in its
capacity as general partner of the Company, as then being complete,
accurate and in effect.
4. The Declaration of Trust, as certified by the Secretary of CPT as
of the date hereof as then being complete, accurate and in effect.
5. The Bylaws of CPT, as certified by the Secretary of CPT as of the
date hereof as then being complete, accurate and in effect.
6. The Indenture between Colonial Realty Limited Partnership and
Bankers Trust Company dated July 22, 1996, as amended by the First
Supplemental Indenture between Colonial Realty Limited Partnership and
Bankers Trust dated December 31, 1998 (collectively, the "Indenture").
7. Resolutions of the Board of Trustees of CPT adopted on April 18,
2000, as certified by the Secretary of CPT as of the date hereof as then
being complete, accurate and in effect, relating to the filing by the
Company of the Registration Statement and related matters.
For purposes of this opinion, we have assumed that (i) the issuance,
sale, amount and terms of any series of Debt Securities to be offered from time
to time will be duly authorized and determined by proper action of the Board of
Trustees of CPT, as the general partner of the Company, consistent with the
procedures and terms described in the Registration Statement (each, a "Board
Action") and in accordance with the Company's Third Amended and Restated
Agreement of Limited Partnership, as amended (the "Partnership Agreement"),
CPT's Declaration of Trust (the "Declaration of Trust"), and applicable Alabama
and Delaware law; and (ii) any Debt Securities will be issued pursuant to the
Indenture.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter is based as to matters of law solely on the
Delaware Revised Uniform Limited Partnership Act, the Alabama Real Estate
Investment Trust Act of 1995 and New York contract law (but not including any
statutes, ordinances, administrative decisions, rules or regulations of any
political subdivision of the State of New York). We express no opinion herein as
to any other laws, statutes, regulations, or ordinances.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof, when the Registration Statement has become
effective under the Securities Act of 1933, as amended (the "Act"), and when the
issuance of any series of Debt Securities has been (a) duly authorized by
applicable Board Action and duly authenticated by the Trustee, and (b) duly
executed and delivered on behalf of the Company against payment therefor in
accordance with the terms of such Board Action, any applicable underwriting
agreement, the Indenture and any applicable supplemental indenture, and as
contemplated by the Registration Statement and/or the applicable Prospectus
Supplement, the Debt Securities will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent transfers
and preferential transfers) and except as may be limited by the exercise of
judicial discretion and the application of principles of equity, including,
without limitation, requirements of good faith, fair dealing, conscionability
and materiality (regardless of whether the Debt Securities are considered in a
proceeding in equity or at law).
To the extent that the obligations of the Company under the Indenture
may be dependent upon such matters, we assume for purposes of this opinion that
the Trustee is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture; that the Indenture has
been duly authorized, executed and delivered by the Trustee and constitutes the
valid and binding obligation of the Trustee enforceable against the Trustee in
accordance with its terms; that the Trustee is in compliance, with respect to
acting as a trustee under the Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under the Indenture.
The opinion expressed above shall be understood to mean only that if
there is a default in performance of an obligation, (i) if a failure to pay or
other damage can be shown and (ii) if the defaulting party can be brought into a
court which will hear the case and apply the governing law, then, subject to the
availability of defenses and to the exceptions set forth in such opinion, the
court will provide a money damage (or perhaps injunctive or specific
performance) remedy.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus constituting a part of the Registration
Statement. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Act.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
--------------------------
HOGAN & HARTSON L.L.P.
EXHIBIT 12
COLONIAL REALTY LIMITED PARTNERSHIP
Ratio of Earnings to Fixed Charges
(all amounts in thousands, except ratios)
<TABLE>
<CAPTION>
For the Three For the Twelve Months Ended
Months Ended ----------------------------------------------------
Description 03/31/00 12/31/99 12/31/98 12/31/97 12/31/96 12/31/95
- ----------------------------------------------------------------------------------------------------------------------
Fixed Charges:
<S> <C> <C> <C> <C> <C> <C>
Interest expense $ 16,044 $ 57,211 $ 52,063 $ 40,496 $ 24,584 $ 24,060
Capitalized interest 2,915 8,664 3,727 4,145 3,745 868
Debt costs amortization 538 1,450 958 815 707 2,446
-------- -------- -------- -------- -------- --------
Total Fixed Charges $ 19,497 $ 67,325 $ 56,748 $ 45,456 $ 29,036 $ 27,374
-------- -------- -------- -------- -------- --------
Earnings Plus Fixed Charges:
Income before property sales and extraordinary items $ 12,580 $ 69,195 $ 64,915 $ 43,128 $ 37,035 $ 24,436
Fixed Charges 19,497 67,325 56,748 45,456 29,036 27,374
-------- -------- -------- -------- -------- --------
Total $ 32,077 $136,520 $121,663 $ 88,584 $ 66,071 $ 51,810
-------- -------- -------- -------- -------- --------
Ratio of Earnings to Fixed Charges 1.65 2.03 2.14 1.95 2.28 1.89
======== ======== ======== ======== ======== ========
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 17, 2000, except for Note 13,
as to which the date is February 29, 2000, relating to the financial statements
and financial statement schedules, which appears in Colonial Realty Limited
Partnership's Annual Report on Form 10-K for the year ended December 31, 1999.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
--------------------------
PricewaterhouseCoopers LLP
Birmingham, Alabama
May 25, 2000
EXHIBIT 25
UNITED STATES
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)
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
--------------------------------------------------
COLONIAL REALTY LIMITED PARTHERSHIP
(Exact name of Registrant as specified in its charter)
DELAWARE 63-1098468
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) identification no.)
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35203
(205) 250-8700
(Address, including zip code, and telephone
number of principal executive offices)
Medium-Term Notes
Due Nine Months or More From Date of Issue
Item 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.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of
Bankers Trust Company dated August 6, 1998,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
September 25, 1998, and Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated December 16,
1998, and Certificate of Amendment of the
Organization Certificate of Bankers Trust
Company dated July 30th, 1999, copies
attached.
Exhibit 2 - Certificate of Authority to commence
business - Incorporated herein by reference
to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein
by reference to Exhibit 2 filed with Form
T-1 Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, as amended on June 22, 1999. Copy
attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company
required by Section 321(b) of the Act. -
Incorporated herein by reference to Exhibit
4 filed with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - The latest report of condition of
Bankers Trust Company dated as of December
31, 1999. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 28th day
of April, 2000
BANKERS TRUST COMPANY
By: /s/ Susan Johnson
---------------------
Susan Johnson
Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 28th day
of April, 2000.
BANKERS TRUST COMPANY
By: /s/ Susan Johnson
------------------
Susan Johnson
Vice President
-5-
<PAGE>
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
----------------------------
Under Section 8007
Of the Banking Law
----------------------------
Bankers Trust Company
130 Liberty Street
New York, N.Y. 10006
Counterpart Filed in the Office of the Superintendent of Banks, State of New
York, August 31, 1998
<PAGE>
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and an Assistant Secretary and a Vice President and an
Assistant Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by
the Superintendent of Banks of the State of New York on the March 5, 1903.
3. The text of the organization certificate, as amended heretofore, is
hereby restated without further amendment or change to read as herein set forth
in full, to wit:
"Certificate of Organization
of
Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A.
Blair, James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A.
Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H.
Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C.
Young, all being persons of full age and citizens of the United States, and a
majority of us being residents of the State of New York, desiring to form a
corporation to be known as a Trust Company, do hereby associate ourselves
together for that purpose under and pursuant to the laws of the State of New
York, and for such purpose we do hereby, under our respective hands and seals,
execute and duly acknowledge this Organization Certificate in duplicate, and
hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is
Bankers Trust Company.
II. The place where its business is to be transacted is the City
of New York, in the State of New York.
III. Capital Stock: The amount of capital stock which the
corporation is hereafter to have is Three Billion One
Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy
Dollars ($3,001,666,670), divided into Two Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated
as Common Stock and 1,000 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series
Preferred Stock.
(a) Common Stock
1. Dividends: Subject to all of the rights of the Series Preferred
Stock, dividends may be declared and paid or set apart for payment upon the
Common Stock out of any assets or funds of the corporation legally available
for the payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with respect
to the Series Preferred Stock or with respect to any series of the Series
Preferred Stock, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, each holder of the Common
Stock being entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of
the corporation, whether voluntary or involuntary, and after the holders of the
Series Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled, or a sum sufficient for the
payment in full set aside, the remaining net assets of the corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with their
respective rights and interests, to the exclusion of the holders of the Series
Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall be
entitled, as such, as a matter of right, to subscribe for or purchase any part
of any new or additional issue of stock of any class or series whatsoever, any
rights or options to purchase stock of any class or series whatsoever, or any
securities convertible into, exchangeable for or carrying rights or options to
purchase stock of any class or series whatsoever, whether now or hereafter
authorized, and whether issued for cash or other consideration, or by way of
dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time
to time by the Board of Directors as herein provided in one or more series. The
designations, relative rights, preferences and limitations of the Series
Preferred Stock, and particularly of the shares of each series thereof, may, to
the extent permitted by law, be similar to or may differ from those of any other
series. The Board of Directors of the corporation is hereby expressly granted
authority, subject to the provisions of this Article III, to issue from time to
time Series Preferred Stock in one or more series and to fix from time to time
before issuance thereof, by filing a certificate pursuant to the Banking Law,
the number of shares in each such series of such class and all designations,
relative rights (including the right, to the extent permitted by law, to convert
into shares of any class or into shares of any series of any class), preferences
and limitations of the shares in each such series, including, buy without
limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which
number may at any time, or from time to time, be increased or decreased
by the Board of Directors, notwithstanding that shares of the series
may be outstanding at the time of such increase or decrease, unless the
Board of Directors shall have otherwise provided in creating such
series) and the distinctive designation thereof;
(ii) The dividend rate on the shares of such series, whether
or not dividends on the shares of such series shall be cumulative, and
the date or dates, if any, from which dividends thereon shall be
cumulative;
(iii) Whether or not the share of such series shall be
redeemable, and, if redeemable, the date or dates upon or after which
they shall be redeemable, the amount or amounts per share (which shall
be, in the case of each share, not less than its preference upon
involuntary liquidation, plus an amount equal to all dividends thereon
accrued and unpaid, whether or not earned or declared) payable thereon
in the case of the redemption thereof, which amount may vary at
different redemption dates or otherwise as permitted by law;
(iv) The right, if any, of holders of shares of such series to convert
the same into, or exchange the same for, Common Stock or other stock as
permitted by law, and the terms and conditions of such conversion or
exchange, as well as provisions for adjustment of the conversion rate
in such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such
series upon the voluntary and involuntary liquidation, dissolution or
winding up of the corporation;
(vi) Whether the holders of shares of such series shall have
voting power, full or limited, in addition to the voting powers
provided by law and, in case additional voting powers are accorded, to
fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and
privileges of such series, provided, however, that no such rights,
privileges, qualifications, limitations or restrictions shall be in
conflict with the organization certificate of the corporation or with
the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of which there are shares
outstanding.
All shares of Series Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series issued at
different times may differ as to dates, if any, from which dividends thereon may
accumulate. All shares of Series Preferred Stock of all series shall be of equal
rank and shall be identical in all respects except that to the extent not
otherwise limited in this Article III any series may differ from any other
series with respect to any one or more of the designations, relative rights,
preferences and limitations described or referred to in subparagraphs (I) to
(vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock of
each series shall be declared and paid or set apart for payment before any
dividends shall be declared and paid or set apart for payment on the Common
Stock with respect to the same quarterly dividend period. Dividends on any
shares of Series Preferred Stock shall be cumulative only if and to the extent
set forth in a certificate filed pursuant to law. After dividends on all shares
of Series Preferred Stock (including cumulative dividends if and to the extend
any such shares shall be entitled thereto) shall have been declared and paid or
set apart for payment with respect to any quarterly dividend period, then and
not otherwise so long as any shares of Series Preferred Stock shall remain
outstanding, dividends may be declared and paid or set apart for payment with
respect to the same quarterly dividend period on the Common Stock out the assets
or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal
rank, preference and priority as to dividends irrespective of whether or not the
rates of dividends to which the same shall be entitled shall be the same and
when the stated dividends are not paid in full, the shares of all series of the
Series Preferred Stock shall share ratably in the payment thereof in accordance
with the sums which would by payable on such shares if all dividends were paid
in full, provided, however, that nay two or more series of the Series Preferred
Stock may differ from each other as to the existence and extent of the right to
cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the
certificate filed pursuant to law with respect to any series of the Series
Preferred Stock, or as otherwise provided by law, the Series Preferred Stock
shall not have any right to vote for the election of directors or for any other
purpose and the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or involuntary, each series of
Series Preferred Stock shall have preference and priority over the Common Stock
for payment of the amount to which each outstanding series of Series Preferred
Stock shall be entitled in accordance with the provisions thereof and each
holder of Series Preferred Stock shall be entitled to be paid in full such
amount, or have a sum sufficient for the payment in full set aside, before any
payments shall be made to the holders of the Common Stock. If, upon liquidation,
dissolution or winding up of the corporation, the assets of the corporation or
proceeds thereof, distributable among the holders of the shares of all series of
the Series Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the respective amounts
which would be payable if all amounts payable thereon were paid in full. After
the payment to the holders of Series Preferred Stock of all such amounts to
which they are entitled, as above provided, the remaining assets and funds of
the corporation shall be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any
series shall be made redeemable as provided in clause (iii) of paragraph 1 of
section (b) of this Article III, the corporation, at the option of the Board of
Directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the Board of
Directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as may be
specifically provided in the certificate filed pursuant to law with respect to
the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the
corporation shall be entitled, as such, as a matter or right, to subscribe for
or purchase any part of any new or additional issue of stock of any class or
series whatsoever, any rights or options to purchase stock of any class or
series whatsoever, or any securities convertible into, exchangeable for or
carrying rights or options to purchase stock of any class or series whatsoever,
whether now or hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred
Stock, Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established
hereby shall be "Floating Rate Non-Cumulative Preferred Stock, Series A"
(hereinafter called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall
initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased
or otherwise acquired by the corporation shall be cancelled and shall revert to
authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock
shall be entitled to receive non-cumulative cash dividends when, as and if
declared by the Board of Directors of the corporation, out of funds legally
available therefor, from the date of original issuance of such shares (the
"Issue Date") and such dividends will be payable on March 28, June 28, September
28 and December 28 of each year (:Dividend Payment Date") commencing September
28, 1990, at a rate per annum as determined in paragraph 3(b) below. The period
beginning on the Issue Date and ending on the day preceding the firs Dividend
Payment Date and each successive period beginning on a Dividend Payment Date and
ending on the date preceding the next succeeding Dividend Payment Date is herein
called a "Dividend Period". If any Dividend payment Date shall be, in The City
of New York, a Sunday or a legal holiday or a day on which banking institutions
are authorized by law to close, then payment will be postponed to the next
succeeding business day with the same force and effect as if made on the
Dividend Payment Date, and no interest shall accrue for such Dividend Period
after such Dividend Payment Date.
(b) Dividend Rate. The dividend rare from time to time payable in
respect of Series A Preferred Stock (the "Dividend Rate") shall be determined on
the basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the
basis of the offered rates for deposits in U.S. dollars having a maturity of
three months commencing on the second London Business Day immediately following
such Dividend Determination Date, as such rates appear on the Reuters Screen
LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If
at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in
respect of such Dividend Determination Dates will be the arithmetic mean
(rounded to the nearest one-hundredth of a percent, with five one-thousandths of
a percent rounded upwards) of such offered rates. If fewer than those offered
rates appear, LIBOR in respect of such Dividend Determination Date will be
determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those offered rates
for the applicable maturity appear on the Reuters Screen LIBO Page as specified
in paragraph (I) above, LIBOR will be determined on the basis of the rates at
which deposits in U.S. dollars having a maturity of three months commending on
the second London Business Day immediately following such Dividend Determination
Date and in a principal amount of not less than $1,000,000 that is
representative of a single transaction in such market at such time are offered
by three major banks in the London interbank market selected by the corporation
at approximately 11:00 A.M., London time, on such Dividend Determination Date to
prime banks in the London market. The corporation will request the principal
London office of each of such banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR in respect of such Dividend
Determination Date will be the arithmetic mean (rounded to the nearest
one-hundredth of a percent, with five one-thousandths of a percent rounded
upwards) of such quotations. If fewer than two quotations are provided, LIBOR in
respect of such Dividend Determination Date will be the arithmetic mean (rounded
to the nearest one-hundredth of a percent, with five one-thousandths of a
percent rounded upwards) of the rates quoted by three major banks in New York
City selected by the corporation at approximately 11:00 A.M., New York City
time, on such Dividend Determination Date for loans in U.S. dollars to leading
European banks having a maturity of three months commencing on the second London
Business Day immediately following such Dividend Determination Date and in a
principal amount of not less than $1,000,000 that is representative of a single
transaction in such market at such time; provided, however, that if the banks
selected as aforesaid by the corporation are not quoting as aforementioned in
this sentence, then, with respect to such Dividend Period, LIBOR for the
preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(ii) The Dividend Rate for any Dividend Period shall be equal to the
lower of 18% of 50 basis points above LIBOR for such Dividend Period as LIBOR is
determined by sections (I) or (ii) above.
As used above, the term "Dividend Determination Date" shall mean, with resect to
any Dividend Period, the second London Business Day prior to the commencement of
such Dividend Period; and the term "London Business Day" shall mean any day that
is not a Saturday or Sunday and that, in New York City, is not a day on which
banking institutions generally are authorized or required by law or executive
order to close and that is a day on which dealings in deposits in U.S. dollars
are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock shall
have the voting power and rights set forth in this paragraph 4 and shall have no
other voting power or rights except as otherwise may from time to time be
required by law.
So long as any shares of Series A Preferred Stock remain outstanding,
the corporation shall not, without the affirmative vote or consent of the
holders of at least a majority of the votes of the Series Preferred Stock
entitled to vote outstanding at the time, given in person or by proxy, either in
writing or by resolution adopted at a meeting at which the holders of Series A
Preferred Stock (alone or together with the holders of one or more other series
of Series Preferred Stock at the time outstanding and entitled to vote) vote
separately as a class, alter the provisions of the Series Preferred Stock so as
to materially adversely affect its rights; provided, however, that in the event
any such materially adverse alteration affects the rights of only the Series A
Preferred Stock, then the alteration may be effected with the vote or consent of
at least a majority of the votes of the Series A Preferred Stock; provided,
further, that an increase in the amount of the authorized Series Preferred Stock
and/or the creation and/or issuance of other series of Series Preferred Stock in
accordance with the organization certificate shall not be, nor be deemed to be,
materially adverse alterations. In connection with the exercise of the voting
rights contained in the preceding sentence, holders of all series of Series
Preferred Stock which are granted such voting rights (of which the Series A
Preferred Stock is the initial series) shall vote as a class (except as
specifically provided otherwise) and each holder of Series A Preferred Stock
shall have one vote for each share of stock held and each other series shall
have such number of votes, if any, for each share of stock held as may be
granted to them.
The foregoing voting provisions will not apply if, in connection with
the matters specified, provision is made for the redemption or retirement of all
outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this
Article III, upon any liquidation, dissolution or winding up of the corporation,
whether voluntary or involuntary, the holders of the Series A Preferred Stock
shall have preference and priority over the Common Stock for payment out of the
assets of the corporation or proceeds thereof, whether from capital or surplus,
of $1,000,000 per share (the "liquidation value") together with the amount of
all dividends accrued and unpaid thereon, and after such payment the holders of
Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this
Article III, Series A Preferred Stock may be redeemed, at the option of the
corporation in whole or part, at any time or from time to time at a redemption
price of $1,000,000 per share, in each case plus accrued and unpaid dividends to
the date of redemption.
At the option of the corporation, shares of Series A Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of
such redemption to the holders of the Series A Preferred Stock to be redeemed in
the following manner: a notice specifying the shares to be redeemed and the time
and place or redemption (and, if less than the total outstanding shares are to
be redeemed, specifying the certificate numbers and number of shares to be
redeemed) shall be mailed by first class mail, addressed to the holders of
record of the Series A Preferred Stock to be redeemed at their respective
addressees as the same shall appear upon the books of the corporation, not more
than sixty (60) days and not less than thirty (30) days previous to the date
fixed for redemption. In the event such notice is not given to any shareholder
such failure to give notice shall not affect the notice given to other
shareholders. If less than the whole amount of outstanding Series A Preferred
Stock is to be redeemed, the shares to be redeemed shall be selected by lot or
pro rata in any manner determined by resolution of the Board of Directors to b
fair and proper. From and after the date fixed in any such notice as the date of
redemption (unless default shall be made by the corporation in providing moneys
at the time and place of redemption for the payment of the redemption price) all
dividends upon the Series A Preferred Stock so called for redemption shall cease
to accrue, and all rights of the holders of said Series A Preferred Stock as
stockholders in the corporation, except the right to receive the redemption
price (without interest) upon surrender of the certificate representing the
Series A Preferred Stock so called for redemption, duly endorsed for transfer,
if required, shall cease and terminate. The corporation's obligation to provide
moneys in accordance with the preceding sentence shall be deemed fulfilled if,
on or before the redemption date, the corporation shall deposit with a bank or
trust company (which may e an affiliate of the corporation) having an office in
the Borough of Manhattan, City of New York, having a capital and surplus of at
least $5,000,000 funds necessary for such redemption, in trust with irrevocable
instructions that such funds be applied to the redemption of the shares of
Series A Preferred Stock so called for redemption. Any interest accrued on such
funds shall be paid to the corporation from time to time. Any funds so deposited
and unclaimed at the end of two (2) years from such redemption date shall be
released or repaid to the corporation, after which the holders of such shares of
Series A Preferred Stock so called for redemption shall look only to the
corporation for payment of the redemption price.
IV. The name, residence and post office address of each
member of the corporation are as follows:
<TABLE>
<CAPTION>
Name Residence Post Office Address
<S> <C> <C> <C>
James A. Blair 9 West 50th Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
James G. Cannon 72 East 54th Street, 14 Nassau Street,
Manhattan, New York City Manhattan, New York City
E. C. Converse 3 East 78th Street, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Henry P. Davison Englewood, 2 Wall Street,
New Jersey Manhattan, New York Ci
Granville W. Garth 160 West 57th Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
A. Barton Hepburn 205 West 57th Street 83 Cedar Street,
Manhattan, New York City Manhattan, New York City
William Logan Montclair, 13 Nassau Street,
New Jersey Manhattan, New York City
George W. Perkins Riverdale, 23 Wall Street,
New York Manhattan, New York City
William H. Porter 56 East 67th Street 270 Broadway,
Manhattan, New York City Manhattan, New York City
John F. Thompson Newark, 143 Liberty Street,
New Jersey Manhattan, New York City
Albert H. Wiggin 42 West 49th Street, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Samuel Woolverton Mount Vernon, 34 Wall Street,
New York Manhattan, New York City
Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place,
Jersey City, New Jersey Jersey City, New Jersey
</TABLE>
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each
for himself does, hereby declare that he will accept the responsibilities and
faithfully discharge the duties of a director therein, if elected to act as
such, when authorized accordance with the provisions of the Banking Law of the
State of New York.
VII. The number of directors of the corporation shall not be less
that 10 nor more than 25."
4. The foregoing restatement of the organization certificate was
authorized by the Board of Directors of the corporation at a meeting held on
July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
6th day of August, 1998.
/s/ James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director and Secretary
/s/ Lea Lahtinen
----------------------------
Lea Lahtinen
Vice President and Assistant Secretary
/s/ Lea Lahtinen
----------------------------
Lea Lahtinen
<PAGE>
State of New York )
) ss:
County of New York )
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
/s/ Lea Lahtinen
-----------------
Lea Lahtinen
Sworn to before me this 6th day of August, 1998.
/s/ Sandra L. West
-------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "RESTATED ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law,"
dated August 6, 1998, providing for the restatement of the Organization
Certificate and all amendments into a single certificate.
Witness, my hand and official seal of the Banking Department at the City of New
York, this 31st day of August in the Year of our Lord one thousand
------- ---------
nine hundred and ninety-eight.
/s/ Manuel Kursky
------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby
amended to increase the aggregate number of shares which the corporation shall
have authority to issue and to increase the amount of its authorized capital
stock in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into
Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (200,166,667) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
25th day of September, 1998
/s/ James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director and Secretary
/s/ Lea Lahtinen
----------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
/s/ Lea Lahtinen
------------------------
Lea Lahtinen
Sworn to before me this 25th day
of September, 1998
/s/ Sandra L. West
-------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated September 16, 1998, providing for an increase in
authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares
with a par value of $10 each designated as Common Stock and 1,000 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each
designated as Common Stock and 1,500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York, this 25th day of September in the Year of our Lord one thousand
--------- ----------------
nine hundred and ninety-eight.
/s/ Manuel Kursky
-----------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and Secretary and a Vice President and an Assistant Secretary
of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into
Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (200,166,667) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred
Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided
into Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight
Hundred Sixty- Seven (212,730,867) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
16th day of December, 1998
/s/ James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director and Secretary
/s/ Lea Lahtinen
----------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
/s/ Lea Lahtinen
-----------------------------
Lea Lahtinen
Sworn to before me this 16th day
of December, 1998
/s/ Sandra L. West
---------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE>
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of
New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated December 16, 1998, providing for an increase in
authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares
with a par value of $10 each designated as Common Stock and 1,500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each
designated as Common Stock and 1,500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York, this 18th day of December in the Year of our Lord one thousand
--------- ---------------
nine hundred and ninety-eight.
/s/ P. Vincent Conlon
------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and Secretary and a Vice President and an Assistant Secretary
of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed
by the Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby
amended to reduce the minimum number of directors required
from 10 to 7, and to reduce in the maximum number of
directors from 25 to 15.
4. Article VII of the organization certificate with reference
to number of directors, which reads as follows:
"VII. The number of directors of the corporation shall be not less
than 10 nor more than 25"
is hereby amended to read as follows:
"VII. The number of directors of the corporation shall be not less
than 7 nor more than 15"
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
30th day of July 1999
/s/ James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director and Secretary
/s/ Lea Lahtinen
----------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
/s/ Lea Lahtinen
-----------------------------
Lea Lahtinen
Sworn to before me this 30th day
of July, 1999
/s/ Sandra L. West
---------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE>
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of
New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated September 3, 1999, providing for a reduction in
the minimum number of directors required from ten to seven, and a reduction in
the maximum number of directors from twenty-five to fifteen.
Witness, my hand and official seal of the Banking Department at the City of New
York, this 3rd day of September in the Year of our Lord one thousand
-------- ---------------
nine hundred and ninety-nine.
/s/ P. Vincent Conlon
-------------------------
Deputy Superintendent of Banks
<PAGE>
BY-LAWS
JUNE 22, 1999
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than seven nor more than fifteen, as may from time to time be fixed by
resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time provided, however, that there shall be at least ten regular monthly
meetings during a calendar year. Special meetings of the Board of Directors may
be called upon at least two day's notice whenever it may be deemed proper by the
Chairman of the Board or, the Chief Executive Officer or, in their absence, by
such other director as the Board of Directors may have designated pursuant to
Section 3 of this Article, and shall be called upon like notice whenever any
three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
I, Susan Johnson, Vice President of Bankers Trust Company, New York, New York,
hereby certify that the foregoing is a complete, true and correct copy of the
By-Laws of Bankers Trust Company, and that the same are in full force and effect
at this date.
/s/ Susan Johnson
------------------
Susan Johnson
Vice President
DATED: April 28, 2000
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/99 State#: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-1
City, State ZIP: New York, NY 10006 Transit#: 21001003
11
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December, 31 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
------------
| C400 |
Dollar Amounts in Thousands | RCFD |
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS | / / / / / / / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1) ................. | 0081 3,205,000 |1.a.
b. Interest-bearing balances (2) .......................................... | 0071 1,850,000 |1.b.
2. Securities: | / / / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ............. | 1754 0|2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............ | 1773 3,129,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell......... | 135 9,239,000 3.
4. Loans and lease financing receivables: | / / / / / / / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 17,491,000 | / / / / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses...................RCFD 3123 477,000 | / / / / / / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve ......................RCFD 3128 0 | / / / / / / / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ..................... | 2125 17,014,000 |4.d.
5. Trading Assets (from schedule RC-D) ........................................... | 3545 12,551,000 |5.
6. Premises and fixed assets (including capitalized leases) ....................... | 2145 625,000 |6.
7. Other real estate owned (from Schedule RC-M) ................................... | 2150 85,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 564,000 |8.
9. Customers' liability to this bank on acceptances outstanding ................... | 2155 262,000 |9.
10. Intangible assets (from Schedule RC-M) ......................................... | 2143 82,000 |10.
11. Other assets (from Schedule RC-F) .............................................. | 2160 2,550,000 |11.
12. Total assets (sum of items 1 through 11) ....................................... | 2170 51,156,000 |12.
-----------------------------
- --------------------------
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</FN>
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/99 State#: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-1
City, State ZIP: New York, NY 10006 Transit#: 21001003
12
</TABLE>
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits: | / / / / / / / / / / / /
<S> <C> <C> <C>
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 13,534,000 |13.a.
(1) Noninterest-bearing(1) ....................... | RCON 6631 2,815,000 |13.a.(1)
(2) Interest-bearing ........................................ | RCON 6636 10,719,000 |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / / / /
part II) | RCFN 2200 12,755,000 |13.b.
(1) Noninterest-bearing ................................. | RCFN 6631 2,404,000 |13.b.(1)
(2) Interest-bearing ....................................... | RCFN 6636 10,351,000 |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 5,483,000 |14.
15. a. Demand notes issued to the U.S. Treasury ................................... | RCON 2840 500,000 |15.a.
b. Trading liabilities (from Schedule RC-D).................................. | RCFD 3548 2,950,000 |15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized
leases): | / / / / / / / / / / / /
a. With a remaining maturity of one year or less ............................ | RCFD 2332 2,341,000 |16.a.
b. With a remaining maturity of more than one year through three years...... | A547 1,798,000 |16.b.
c. With a remaining maturity of more than three years......................... | A548 128,000 |16.c
17. Not Applicable. | / / / / / / / / / / / / |17.
18. Bank's liability on acceptances executed and outstanding ........................ | RCFD 2920 262,000 |18.
19. Subordinated notes and debentures (2)............................................ | RCFD 3200 328,000 |19.
20. Other liabilities (from Schedule RC-G) .......................................... | RCFD 2930 4,888,000 |20.
21. Total liabilities (sum of items 13 through 20) .................................. | RCFD 2948 44,967,000 |21.
22. Not Applicable | / / / / / / / / / / / / |
| / / / / / / / / / / / / |22.
EQUITY CAPITAL | / / / / / / / / / / / / |
23. Perpetual preferred stock and related surplus ................................... | RCFD 3838 1,500,000 |23.
24. Common stock .................................................................... | RCFD 3230 2,127,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ........................ | RCFD 3839 542,000 |25.
26. a. Undivided profits and capital reserves ..................................... | RCFD 3632 2,055,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ... | RCFD 8434 (2,000)|26.b.
c. Accumulated net gains (losses) on cash flow hedges______________________ | RCFD 4336 0 |26c.
27. Cumulative foreign currency translation adjustments ............................. | RCFD 3284 (33,000)|27.
28. Total equity capital (sum of items 23 through 27) ............................... | RCFD 3210 6,189,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28).................... | RCFD 3300 51,156,000 |29
| |
-------------------------
<FN>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
-------------------------
auditors as of any date during 1997 ................................| RCFD 6724 N/A | M.1
-------------------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors 6 =
Compilation of the bank's financial statements by external auditors 7 = Other
audit procedures (excluding tax preparation work) 8 = No external audit work
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
</FN>
</TABLE>
