SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: April 23, 1996
(Date of earliest event reported)
DEPOSIT GUARANTY CORP.
(Exact name of Registrant as specified in its charter)
Mississippi 0-4518 64-0472169
(State of (Commission File No.) (IRS Employeer
incorporation) Idenification No.)
210 EAST CAPITAL STREET, POST OFFICE BOX 730
JACKSON, MISSISSIPPI 39205
(Address of principal executive offices, including zip codes)
(601) 354-8497
(Registrant's telephone numbers, including area codes)
ITEM 5. OTHER EVENTS
On April 26, 1996, Deposit Guaranty Corp. (the
"Corporation") issued $100 million aggregate
principal amount of 7-1/4 Notes Due May 1, 2006 (the
"Notes"), pursuant to an Indenture, dated as of
April 26, 1996 (the "Indenture"), between the
Corporation and SunTrust Bank, Atlanta, as trustee.
The Notes were sold pursuant to a shelf registration
statement previously filed with the Securities and
Exchange Commission (No. 33-64333). Exhibits 1.01
and 4.01 through 4.03 are hereby incorporated by
reference in this Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
1.01 Underwriting Agreement, including the Terms
Agreement, dated April 23, 1996, between the
Corporation and CS First Boston Corporation
and Keefe, Bruyette & Woods, Inc., relating to
the offer and sale of $100,000,000 aggregate
principal amount of 7 1/4% Senior Notes Due
May 1, 2006 (the "Notes").
4.01 Form of the Notes.
4.02 Form of Indenture, dated as of April 26, 1996,
between the Corporation and SunTrust Bank,
Atlanta, as Trustee.
4.03 Officers' Certificate of the Corporation,
dated April 23, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
DEPOSIT GUARANTY CORP.
(Registrant)
Dated: April 26, 1996 By: /s/ Arlen L. McDonald
Name: Arlen L McDonald
Title: Executive Vice
President and
Chief Financial
Officer
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
1.01 Underwriting Agreement, including the Terms
Agreement, dated April 23, 1996, between the
Corporation and CS First Boston Corporation and
Keefe, Bruyette & Woods, Inc., relating to the
offer and sale of $100,000,000 aggregate principal
amount of 7 1/4% Senior Notes Due May 1, 2006 (the
"Notes").
4.01 Form of the Notes.
4.02 Form of Indenture, dated as of April 26, 1996,
between the Corporation and SunTrust Bank,
Atlanta, as Trustee.
4.03 Officers' Certificate of the Corporation, dated
April 23, 1996.
DEPOSIT GUARANTY CORP.
UNDERWRITING AGREEMENT
Introductory. Deposit Guaranty Corp., a Mississippi
business corporation (the Company ), proposes to issue and
sell from time to time, (i) one or more series of its
unsecured debt securities, which may be either senior
debentures, notes, bonds, and/or other evidences of
indebtedness (the "Senior Debt Securities") or subordinated
debentures, notes, bonds, and/or other evidences of
indebtedness which may be convertible at the option of a
holder of the Company into Equity Securities (as described
herein) of the Company (the "Subordinated Debt Securities"
and, together with the Senior Debt Securities, the "Debt
Securities"), (ii) warrants to purchase Debt Securities (the
"Debt Warrants"), (iii) shares of preferred stock, no par
value (the "Preferred Stock"), which may be convertible, at
the option of the holder, into Common Stock or any other
class or series of Equity Securities of the Company or
convertible at the option of the Company into Equity
Securities or other debt securities of the Company, (iv)
shares of Preferred Stock represented by depositary shares
("Depositary Shares"), (v) warrants to purchase shares of
Preferred Stock (the "Preferred Stock Warrants"), (vi)
warrants to purchase Depositary Shares (the "Depositary
Share Warrants"), (vii) shares of common stock, no par value
(the "Common Stock" and, together with the Preferred Stock
or Depositary Shares representing Preferred Stock, the
"Equity Securities"), and (viii) warrants to purchase Common
Stock (the "Common Stock Warrants," and together with the
Debt Warrants, the Preferred Stock Warrants, and the
Depositary Share Warrants, being collectively referred to
herein as the "Securities Warrants") registered under the
registration statement referred to in Section 2(a)
( Registered Securities ). The Senior Debt Securities will
be issued under an indenture, to be dated as of April 26,
1996 (the Senior Indenture ), between the Company and
SunTrust Bank, Atlanta, as Trustee, in one or more series,
which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms. The
Subordinated Debt Securities will be issued under an
Indenture (the "Subordinated Indenture," and together with
the Senior Indenture, the "Indentures"), between the Company
and SunTrust Bank, Atlanta, as Trustee. The Securities
Warrants will be issued pursuant to a warrant agreement (the
"Warrant Agreement") between the Company and a warrant agent
(the "Warrant Agent"). The Depositary Shares will be
evidenced by depositary receipts (the "Receipts") issued
under a Deposit Agreement (the "Deposit Agreement") between
the Company and a depositary (the "Depositary"). The
Registered Securities constituting preferred stock may be
issued in one or more series, which series may vary as to
dividend rates, redemption provisions, selling prices and
other terms. Particular series or offerings of Registered
Securities will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with
terms of offering determined at the time of sale.
The Registered Securities involved in any such offering
are hereinafter referred to as the Offered Securities .
The firm or firms which agree to purchase the Offered
Securities are hereinafter referred to as the Underwriters
of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter
referred to as the Representatives ; provided, however,
that if the Terms Agreement does not specify any
representative of the Underwriters, the term
Representatives , as used in this Agreement (other than in
Sections 2(b), 5(c) and 6 and the second sentence of
Section 3), shall mean the Underwriters.
1. Representations and Warranties of the Company. The
Company, as of the date of each Terms Agreement referred to
in Section 3, represents and warrants to, and agrees with,
each Underwriter that:
(a) A registration statement (No. 33-64333),
including a prospectus, relating to the Registered
Securities has been filed with the Securities and
Exchange Commission (the Commission ) and has become
effective. Such registration statement, as amended at
the time of any Terms Agreement referred to in
Section 3, is hereinafter referred to as the
Registration Statement , and the prospectus included
in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the
Offered Securities (if they are debt securities or
preferred stock) and the terms of the offering of the
Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b)
( Rule 424(b) ) under the Securities Act of 1933 (the
Act ), including all material incorporated by
reference therein, is hereinafter referred to as the
Prospectus . All references in this Agreement to
financial statements and schedules and other
information that is "contained," "included" or "stated"
in the Registration Statement, any preliminary
prospectus or the Prospectus (and all other references
of like import) shall be deemed to mean and include all
such financial statements and schedules and other
information that are or are deemed to be incorporated
by reference in the Registration Statement or the
Prospectus, as the case may be. Any reference herein
to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the
Securities Exchange Act of 1934, as amended (together
with all rules and regulations of the Commission
thereunder, the "Exchange Act"), after the effective
date of the Registration Statement, or the issue date
of any preliminary prospectus or the Prospectus, as the
case may be, and on or prior to the completion of the
applicable offering and which is deemed to be
incorporated therein by reference.
(b) On the effective date of the registration
statement relating to the Registered Securities, such
registration statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of
1939 (the Trust Indenture Act ) and the rules and
regulations of the Commission (the Rules and
Regulations ) and did not include any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and on the date of
each Terms Agreement referred to in Section 3, the
Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents
based upon written information furnished to the Company
by any Underwriter through the Representatives, if any,
specifically for use therein.
(c) The Company has been duly incorporated and is
an existing corporation in good standing under the laws
of the State of Mississippi, with power and authority
(corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the
conduct of its business requires such qualification,
other than any failure to be so qualified or in good
standing as would not singly or in the aggregate with
all such other failures reasonably be expected to have
a materially adverse effect on the assets, liabilities,
results of operations or financial condition of the
Company and its consolidated subsidiaries (as defined
in Rule 1-02(x) of the Commission's Regulation S-X),
taken as a whole (each a "Material Adverse Effect").
(d) Each subsidiary of the Company has been duly
incorporated or organized and is an existing
corporation, bank or savings bank in good standing
under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and
other) to own its properties and conduct its business
as described in the Prospectus; and each subsidiary of
the Company is duly qualified to do business as a
foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, other than any failure to be so
qualified or in good standing as would not singly or in
the aggregate with all other failures reasonably be
expected to have a Material Adverse Effect; all of the
issued and outstanding capital stock of each subsidiary
of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; the capital
stock of each subsidiary owned by the Company, directly
or through subsidiaries, is owned free from liens,
encumbrances and defects; and none of the subsidiaries
of the Company (other than Deposit Guaranty National
Bank and Commercial National Bank (collectively, the
"Significant Subsidiaries")) is a "significant
subsidiary," as such term is defined in Rule 405 of the
Rules and Regulations under the Act.
(e) If the Offered Securities are Debt Securities
or Debt Warrants: The relevant Indenture has been duly
authorized and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly
authorized; and when the Offered Securities are
delivered and paid for pursuant to the Terms Agreement
on the Closing Date (as defined below) or pursuant to
Delayed Delivery Contracts (as hereinafter defined),
the relevant Indenture will have been duly executed and
delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will
conform to the description thereof contained in the
Prospectus and the relevant Indenture and such Offered
Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles.
(f) If the Offered Securities are Preferred Stock
or Depositary Shares or Depositary Share Warrants or
Preferred Stock Warrants: The Offered Securities have
been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the
Terms Agreement on the Closing Date, such Offered
Securities will have been validly issued, fully paid
and nonassessable and will conform to the description
thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights
with respect to the Offered Securities.
(g) If the Offered Securities are Common Stock or
Common Stock Warrants are issued: The Offered
Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are,
and, when the Offered Securities have been delivered
and paid for in accordance with the Terms Agreement on
the Closing Date, such Offered Securities will have
been, validly issued, fully paid and nonassessable and
will conform to the description thereof contained in
the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Offered
Securities.
(h) If the Offered Securities are convertible:
When the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date,
such Offered Securities will be convertible into Common
Stock of the Company in accordance with their terms (if
the Offered Securities are Preferred Stock) or the
relevant Indenture (if the Offered Securities are Debt
Securities); the shares of Equity Securities initially
issuable upon conversion of such Offered Securities
have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock
have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights
with respect to the Common Stock.
(i) If the Offered Securities are Common Stock or
are exercisable for or convertible into Common Stock:
Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the
Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like
payment; and there are no contracts, or agreements
between the Company and any person granting such person
the right to require the Company to file a registration
statement under the Act with respect to any securities
of the Company owned or to be owned by such person or
to require the Company to include such securities in
the securities registered pursuant to the Registration
Statement.
(j) If the Offered Securities constitute Common
Stock or are exercisable for or convertible into Common
Stock, the outstanding shares of Common Stock are
listed on the Nasdaq Stock Market ( Nasdaq ) and the
Offered Securities (if they are Common Stock) or the
Common Stock into which the Offered Securities are
convertible (if they are convertible) has been approved
for listing on Nasdaq, subject to notice of issuance.
If the Offered Securities are Debt Securities or
Preferred Stock, they have been approved for listing on
the stock exchange or national automated quotation
system indicated in the Terms Agreement, subject to
notice of issuance.
(k) The Company is duly registered under the Bank
Holding Company Act of 1956, as amended; the Company,
and each subsidiary of the Company are in compliance
with and conduct their respective businesses in
conformity with all applicable bank and bank holding
company laws and governmental regulations, except to
the extent that any such failure to be in such
conformity would not have a Material Adverse Effect.
(l) If Offered Securities constitute Depositary
Shares: The deposit of the underlying Preferred Stock
by the Company in accordance with the Deposit Agreement
has been duly authorized and, when the Depositary
Shares are issued in accordance with the terms of this
Agreement and the Deposit Agreement, the Depositary
Shares will represent legal and valid interests in the
underlying Preferred Stock.
(m) If Offered Securities constitute Depositary
Shares: Assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary,
each Depositary Share will represent the interest
described in the Prospectus in a share of underlying
Preferred Stock; assuming due execution and delivery of
the Depositary Receipts by the Depositary pursuant to
the Deposit Agreement, the Receipts will entitle the
persons in whose names such Receipts are registered to
the benefits of registered holders of Receipts provided
therein and in the Deposit Agreement.
(n) If Offered Securities are Depositary Shares:
The Deposit Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the
Depositary, is a valid and binding agreement of the
Company.
(o) If Offered Securities are Securities
Warrants: The Warrant Agreement has been duly
authorized, executed and delivered by the Company and
assuming due authorization, execution and delivery
thereof by the Warrant Agent, is a valid and binding
agreement of the Company.
(p) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or
any court is required for the consummation of the
transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in
connection with the issuance and sale of the Offered
Securities by the Company, except such as have been
obtained and made under the Act and, if the Offered
Securities are Debt Securities, the Trust Indenture Act
and such as may be required under state securities
laws.
(q) The execution, delivery and performance of
the relevant Indenture (if the Offered Securities are
Debt Securities), the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered
Securities and, if the Offered Securities are debt
securities or preferred stock, compliance with the
terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary
is a party or by which the Company or any such
subsidiary is bound or to which any of the properties
of the Company or any such subsidiary is subject, or
the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement) other than
any such breaches, violations, defaults, liens, charges
or encumbrances as would not singly or in the aggregate
with all such other breaches, violations, defaults,
liens, charges or encumbrances reasonably be expected
to have a Material Adverse Effect.
(r) The Terms Agreement (including the provisions
of this Agreement), and if the Offered Securities are
Debt Securities or Preferred Stock, any Delayed
Delivery Contracts have been duly authorized, executed
and delivered by the Company.
(s) Except as disclosed in the Prospectus, the
Company and its subsidiaries have good and marketable
title to all real properties and all other properties
and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect
the value thereof or materially interfere with the use
made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to
be made thereof by them.
(t) The Company and its subsidiaries possess
adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary
to conduct the business now operated by them and have
not received any notice of proceedings relating to the
revocation or modification of any such certificate,
authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would
individually or in the aggregate have a Material
Adverse Effect on the Company and its subsidiaries
taken as a whole.
(u) Except as disclosed in the Prospectus, there
are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any
of their respective properties that, if determined
adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material
Adverse Effect or would materially and adversely affect
the ability of the Company to perform its obligations
under the relevant Indenture (if the Offered Securities
are Debt Securities), the Terms Agreement (including
the provisions of this Agreement) or any Delayed
Delivery Contracts, or which are otherwise material in
the context of the sale of the Offered Securities; and
no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(v) The financial statements included in the
Registration Statement and Prospectus present fairly
the financial position of the Company and its
consolidated subsidiaries taken as a whole as of the
dates shown and their results of operations and cash
flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements
have been prepared in conformity with the generally
accepted accounting principles in the United States
applied on a consistent basis; and any schedules
included in the Registration Statement present fairly
the information required to be stated therein.
(w) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements
included in the Prospectus there has been no material
adverse change, nor any development or event involving
a prospective material adverse change, in the condition
(financial or other), business, properties or results
of operations of the Company and its subsidiaries taken
as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(x) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in
the Prospectus, will not be an investment company as
defined in the Investment Company Act of 1940.
3. Purchase and Offering of Offered Securities. The
obligation of the Underwriters to purchase the Offered
Securities will be evidenced by an agreement or exchange of
other written communications ( Terms Agreement ) at the time
the Company determines to sell the Offered Securities. The
Terms Agreement will incorporate by reference the provisions
of this Agreement, except as otherwise provided therein, and
will specify the firm or firms which will be Underwriters,
the names of any Representatives, the principal amount or
number of shares to be purchased by each Underwriter, any
redemption provisions and any sinking fund requirements and
whether any of the Offered Securities may be sold to
institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The purchase price to be paid
by the Underwriters and (if the Offered Securities are debt
securities or preferred stock) the terms of the Offered
Securities not already specified (in the relevant Indenture,
in the case of Offered Securities that are debt securities),
including, but not limited to, interest rate (if debt
securities), dividend rate (if preferred stock), maturity
(if debt securities), any redemption provisions and any
sinking fund requirements and whether any of the Offered
Securities may be sold to institutional investors pursuant
to Delayed Delivery Contracts (as defined below). The Terms
Agreement will also specify the time and date of delivery
and payment (such time and date, or such other time not
later than seven full business days thereafter as the
Underwriter first named in the Terms Agreement (the Lead
Underwriter ) and the Company agree as the time for payment
and delivery, being herein and in the Terms Agreement
referred to as the Closing Date ), the place of delivery
and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the
Closing Date (if later than the otherwise applicable
settlement date) shall be the date for payment of funds and
delivery of securities for all the Offered Securities sold
pursuant to the offering, other than Contract Securities for
which payment of funds and delivery of securities shall be
as hereinafter provided. The obligations of the
Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set
forth in the Prospectus.
If the Terms Agreement provides for sales of Offered
Securities pursuant to delayed delivery contracts, the
Company authorizes the Underwriters to solicit offers to
purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached
hereto ( Delayed Delivery Contracts ) with such changes
therein as the Company may authorize or approve. Delayed
Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and
charitable institutions. On the Closing Date the Company
will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such
Terms Agreement in respect of the principal amount or number
of shares of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ( Contract Securities ). The
Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted
from the Offered Securities to be purchased by the several
Underwriters and the aggregate principal amount or number of
shares of Offered Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the
principal amount or number of shares of Offered Securities
set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro
rata and so advise the Company. The Company will advise the
Lead Underwriter not later than the business day prior to
the Closing Date of the principal amount or number of shares
of Contract Securities.
If the Offered Securities are preferred stock or Common
Stock, the certificates for the Offered Securities delivered
to the Underwriters on the Closing Date will be in
definitive form, and if the Offered Securities are debt
securities, the Offered Securities delivered to the
Underwriters on the Closing Date will be in definitive fully
registered form, in each case in such denominations and
registered in such names as the Lead Underwriter requests.
If the Offered Securities are debt securities and the
Terms Agreement specifies Book-Entry Only settlement or
otherwise states that the provisions of this paragraph shall
apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or
more permanent global Securities in definitive form (the
Global Securities ) deposited with the Trustee as custodian
for The Depository Trust Company ( DTC ) and registered in
the name of Cede & Co., as nominee for DTC. Interests in any
permanent global Securities will be held only in book-entry
form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms
Agreement specifies that the Offered Securities will not
trade in DTC's Same Day Funds Settlement System) by
certified or official bank check or checks in New York
Clearing House (next day) funds or (if the Terms Agreement
specifies that the Offered Securities will trade in DTC's
Same Day Funds Settlement System) in Federal (same day)
funds by official check or checks or wire transfer to an
account in New York previously designated to the Lead
Underwriter by the Company at a bank acceptable to the Lead
Underwriter, in each case drawn to the order of the Company
at the place of payment specified in the Terms Agreement on
the Closing Date, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all
of the Offered Securities.
4. Certain Agreements of the Company. The Company
agrees with the several Underwriters that in connection with
each offering of Offered Securities:
(a) The Company will file the Prospectus with the
Commission pursuant to and in accordance with
Rule 424(b)(2) (or, if applicable and if consented to
by the Lead Underwriter, subparagraph (5)) not later
than the second business day following the execution
and delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter
promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will
afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter
promptly of the filing of any such amendment or
supplement and of the institution by the Commission of
any stop order proceedings in respect of the
Registration Statement or of any part thereof and will
use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to
the Offered Securities is required to be delivered
under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will notify the Lead
Underwriter of such event and will promptly prepare and
file with the Commission, at its own expense, an
amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance. Neither the Lead Underwriter's
consent to, nor the Underwriters delivery of, any such
amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than
16 months, after the date of each Terms Agreement, the
Company will make generally available to its
securityholders an earnings statement covering a period
of at least 12 months beginning after the effective
date of the Registration Statement, which will satisfy
the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the
Representatives copies of the Registration Statement,
including all exhibits, any related preliminary
prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and
supplements to such documents, in each case as soon as
available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay
the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the
qualification of the Offered Securities for sale and
(if the Offered Securities are Debt Securities or
Preferred Stock) the determination of their eligibility
for investment under the laws of such jurisdictions as
the Lead Underwriter designates and will continue such
qualifications in effect so long as required for the
distribution.
(g) During the period of five years after the
date of any Terms Agreement, the Company will furnish
to the Representatives and, upon request, to each of
the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive
proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or
mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as the
Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to
the performance of its obligations under the Terms
Agreement (including the provisions of this Agreement)
and will reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees or other
expenses (including reasonable fees and disbursements
of counsel) incurred by them in connection with
qualification of the Registered Securities for sale (if
the Offered Securities are Debt Securities or Preferred
Stock) any determination of their eligibility for
investment under the laws of such jurisdictions as the
Lead Underwriter may designate and the printing of
memoranda relating thereto (if they are Debt Securities
or Preferred Stock), for any applicable filing fee of
the National Association of Securities Dealers, Inc.
relating to the Registered Securities, for any travel
expenses of the Company's officers and employees and
any other expenses of the Company in connection with
attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses
incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus
supplements or any other amendments or supplements to
the Prospectus to the Underwriters.
(i) If the Offered Securities are Debt Securities
or Preferred Stock, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a
registration statement under the Act relating to United
States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more
than one year from the date of issue (if the Offered
Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if
the Offered Securities are preferred stock), or
publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior
written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
Agreement and ending the number of days after the
Closing Date specified under Blackout in the Terms
Agreement.
(j) If the Offered Securities are Common Stock or
are convertible into Common Stock, the Company will not
offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act
relating to, any additional shares of its Common Stock
or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or
publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior
written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
Agreement and ending the number of days after the
Closing Date specified under Blackout in the Terms
Agreement, except issuances of Common Stock pursuant to
the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date of the
Terms Agreement, grants of employee stock options
pursuant to the terms of a plan in effect on the date
of the Terms Agreement and issuances of Common Stock
pursuant to the exercise of such options.
5. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and
pay for the Offered Securities will be subject to the
accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of
Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder
and to the following additional conditions precedent:
(a) On or prior to the date of the Terms
Agreement, the Representatives shall have received a
letter, dated the date of delivery thereof, of KPMG
Peat Marwick LLP confirming that they are independent
public accountants within the meaning of the Act and
the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements
and any schedules and any summary of earnings
examined by them and included in the Prospectus
comply as to form in all material respects with
the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures
specified by the American Institute of Certified
Public Accountants for a review of interim
financial information as described in Statement of
Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements
included in the Registration Statement;
(iii) on the basis of the review referred to
in clause (ii) above, a reading of the latest
available interim financial statements of the
Company, inquiries of officials of the Company who
have responsibility for financial and accounting
matters and other specified procedures, nothing
came to their attention that caused them to
believe that:
(A) the unaudited financial statements,
if any, and any summary of earnings included
in the Prospectus do not comply as to form in
all material respects with the applicable
accounting requirements of the Act and the
related published Rules and Regulations or
any material modifications should be made to
such unaudited financial statements and
summary of earnings for them to be in
conformity with generally accepted accounting
principles;
(B) if any unaudited capsule
information is contained in the Prospectus,
the unaudited consolidated net sales, net
operating income, net income and net income
per share amounts or other amounts
constituting such capsule information and
described in such letter do not agree with
the corresponding amounts set forth in the
unaudited consolidated financial statements
or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at
a subsequent specified date not more than
five days prior to the date of the Terms
Agreement, there was any change in the
capital stock or any increase in short-term
indebtedness or long-term debt of the Company
and its consolidated subsidiaries or, at the
date of the latest available balance sheet
read by such accountants, there was any
decrease in consolidated net current assets
or net assets, as compared with amounts shown
on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date
of the latest income statement included in
the Prospectus to the closing date of the
latest available income statement read by
such accountants there were any decreases, as
compared with the corresponding period of the
previous year, in consolidated net sales, net
operating income in the total or (if the
Offered Securities are Common Stock or are
convertible into Common Stock) per share
amounts of consolidated income before
extraordinary items or net income or (if the
Offered Securities are Debt Securities) in
the ratio of earnings to fixed charges or (if
the Offered Securities are Preferred Stock)
in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (C) and
(D) above for changes, increases or decreases
which the Prospectus discloses have occurred or
may occur or which are described in such letter;
and
(iv) they have compared specified dollar
amounts (or percentages derived from such dollar
amounts) and other financial information contained
in the Prospectus (in each case to the extent that
such dollar amounts, percentages and other
financial information are derived from the general
accounting records of the Company and its
subsidiaries subject to the internal controls of
the Company's accounting system or are derived
directly from such records by analysis or
computation) with the results obtained from
inquiries, a reading of such general accounting
records and other procedures specified in such
letter and have found such dollar amounts,
percentages and other financial information to be
in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in
material incorporated by reference into the Prospectus
shall be deemed included in the Prospectus for purposes
of this subsection.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations
and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms
Agreement, there shall not have occurred (i) any
change, or any development or event involving a
prospective change, in the condition (financial or
other), business, properties or results of operations
of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse
and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities or
preferred stock of the Company by any nationally
recognized statistical rating organization (as defined
for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has
under surveillance or review its rating of any debt
securities or preferred stock of the Company (other
than an announcement with positive implications of a
possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial
national or international calamity or emergency if, in
the judgment of a majority in interest of the
Underwriters including any Representatives, the effect
of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an
opinion, dated such Closing Date, of Skadden, Arps,
Slate, Meagher & Flom, special New York counsel for the
Company, to the effect that:
(i) if the Offered Securities are debt
securities: Assuming the Indenture has been duly
authorized and executed under Mississippi law, the
Indenture has been duly executed and delivered by
the Company and has been qualified under the Trust
Indenture Act; and the Offered Securities other
than any Contract Securities have been duly
executed, authenticated, issued and delivered; the
Indenture and the Offered Securities other than
any Contract Securities constitute, and any
Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the
Indenture and sold pursuant to Delayed Delivery
Contracts, will constitute, valid and binding
obligations of the Company enforceable against the
Company in accordance with their terms, except to
the extent that (x) enforcement may be limited by
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of now
or hereafter in effect relating to creditors'
rights generally and (y) the general principles of
equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(ii) the statements made in the Prospectus
under the caption "Regulatory Matters" have been
reviewed by such counsel and insofar as they
relate to summaries of legal matters, constitute
fair summaries of such matters and the description
of the Offered Securities contained in the
Prospectus under the caption "Description of Debt
Securities" and in the prospectus supplement under
the caption "Description of the Notes," to the
extent such statements constitute summaries of
legal matters or documents, have been reviewed by
such counsel and fairly summarize such matters or
documents in all material respects;
(iii) the Company is not an "investment
company" or an entity "controlled" by an
"investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(iv) each document filed pursuant to the
Exchange Act (other than the financial statements,
schedules and other financial and statistical data
included therein or excluded therefrom or any
exhibits thereto, as to which such counsel need
not express any opinion) as of the date it was
filed and incorporated or deemed to be
incorporated by reference in the Prospectus
appeared on their face to be appropriately
responsive in all material respects with the
applicable requirements of the Exchange Act;
(v) if Offered Securities constitute
Depositary Shares: The deposit of the underlying
Preferred Stock by the Company in accordance with
the Deposit Agreement has been duly authorized
and, when the Depositary Shares are issued in
accordance with the terms of this Agreement and
the Deposit Agreement, the Depositary Shares will
represent legal and valid interests in the
underlying Preferred Stock;
(vi) if the Offered Securities are Debt
Securities that are convertible; the Offered
Securities other than any Contract Securities are,
and any Contract Securities, when executed,
authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will be convertible
into Common Stock of the Company in accordance
with the terms of the Indenture;
(vii) no Government Approval (as hereinafter
defined), which has not been obtained or taken and
is not in full force and effect, is required to
authorize or is required in connection with the
execution, delivery or performance of any of this
Agreement, the Indenture and the Offered
Securities by the Company except for such as may
be required under state securities laws.
"Governmental Approval" means any consent,
approval, license or validation of, or filing,
recording or registration with, any Governmental
Authority pursuant to the laws of the State of
New York or the United States of America to the
extent specifically referred to in such opinion;
(viii) if the Offered Securities are Common
Stock or are convertible into Common Stock: there
are no contracts or agreements known to such
counsel between the Company and any person
granting such person the right to require the
Company to file a registration statement under the
Act with respect to any securities of the Company
owned or to be owned by such person or to require
the Company to include such securities in the
securities registered pursuant to the Registration
Statement or in any securities being registered
pursuant to any other registration statement filed
by the Company under the Act. For purposes of the
foregoing, such counsel may state that their
knowledge is based on a certificate from the
Company; and
(ix) the Registration Statement has become
effective under the Act, the Prospectus was filed
with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the
date specified therein, and, such counsel has been
advised that, no stop order suspending the
effectiveness of the Registration Statement or any
part thereof has been issued and to the best of
such counsel's knowledge, no proceedings for that
purpose have been instituted or are pending or
contemplated under the Act; the Registration
Statement relating to the Offered Securities, as
of its effective date and the Prospectus, as of
its date and any amendment or supplement thereto,
as of its date, appeared on their face to be
appropriately responsive in all material respects
to the requirements of the Act and the Rules and
Regulations (except that in each case such counsel
need not express any opinion as to the financial
statements, schedules and other financial data
included therein or excluded therefrom or the
exhibits to the Registration Statement, including
the Statement of Eligibility on Form T-1 of the
Trustee under the Trust Indenture Act filed as an
exhibit to the Registration Statement (the "Form
T-1") and counsel need not assume any
responsibility for the accuracy, completeness or
fairness of the Statements contained in the
Registration Statement and the Prospectus except
as provided in paragraph (ii) of such counsel's
opinion.
In addition, such counsel shall state that
such counsel has no reason to believe that the
Registration Statement, as of its effective date,
or any amendment thereto, as of its date,
contained or contains any untrue statement of a
material fact or omitted or omits to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading or that the Prospectus or any amendment
or supplement thereto, as of the date of this
Agreement or as of such Closing Date, contained or
contains any untrue statement of a material fact
or omitted or omits to state any material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading; it being understood
that such counsel need express no opinion as to
the financial statements, schedules, or other
financial and statistical data contained in or
excluded from the Registration Statement or the
Prospectus, including the Form T-1.
(e) You shall have received on such Closing Date
an opinion of Watkins Ludlam & Stennis, P.A., counsel
for the Company, dated such Closing Date, to the effect
that:
(i) the Company is an existing corporation
in good standing under the laws of the State of
Mississippi, with corporate power and authority to
own its properties and conduct its business as
described in the Prospectus; and the Company is
duly qualified to do business as a foreign
corporation in good standing in all other
jurisdictions in which its ownership or lease of
property or the conduct of its business requires
such qualification, except where the failure to be
so qualified or in good standing would not have a
material adverse effect upon its operations or
financial condition;
(ii) the authorized capital stock of the
Company conforms as to legal matters in all
material respects to the description thereof
contained in the Prospectus under "Description of
Preferred Stock" and "Description of Common
Stock";
(iii) if the Offered Securities delivered on
such Closing Date are Preferred Stock or
Depositary Shares, such Offered Securities have
been duly authorized and validly issued, are fully
paid and nonassessable and conform to the
description thereof contained in the Prospectus;
(iv) if the Offered Securities delivered on
such Closing Date are Common Stock, such Offered
Securities have been duly authorized and validly
issued, are fully paid and nonassessable and
conform to the description thereof contained in
the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to
the Offered Securities;
(v) if the Offered Securities delivered on
such Closing Date are convertible into the
Underlying Securities of the Company in accordance
with their terms; the Underlying Securities
initially issuable upon conversion of such Offered
Securities have been duly authorized and reserved
for issuance upon such conversion and, when issued
upon such conversion, will be validly issued,
fully paid and nonassessable; the outstanding
Underlying Securities have been duly authorized
and validly issued, are fully paid and
nonassessable and conform to the description
thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive
rights with respect to the Securities or the
Underlying Securities;
(vi) if Offered Securities constitute
Depositary Shares: The deposit of the underlying
Preferred Stock by the Company in accordance with
the Deposit Agreement has been duly authorized
and, when the Depositary Shares are issued in
accordance with the terms of this Agreement and
the Deposit Agreement, the Depositary Shares will
represent legal and valid interests in the
underlying Preferred Stock;
(vii) if Offered Securities are Securities
Warrants: The Warrant Agreement has been duly
authorized, executed and delivered by the Company
and assuming due authorization, execution and
delivery thereof by the Warrant Agent, is a valid
and binding agreement of the Company;
(viii) t he Terms Agreement (including the
provisions of this Agreement), and if the Offered
Securities are debt securities or preferred stock,
the Indenture, the Notes and any Delayed Delivery
Contracts, have been duly authorized, executed and
delivered by the Company;
(ix) the Company has the corporate power and
authority to own its property and to conduct its
business as described in the Prospectus;
(x) each Significant Subsidiary of the
Company has been duly incorporated or organized,
is validly existing as a corporation, bank or
savings bank in good standing under the laws of
the jurisdiction of its incorporation, has the
corporate or other power and authority to own its
property and to conduct its business as described
in the Prospectus;
(xi) the execution and delivery by the
Company of, and the performance by the Company of
its obligations under, the Indenture (if the
Offered Securities are debt securities), the Terms
Agreement (including the provisions of this
Agreement), if the Offered Securities are debt
securities or preferred stock, any Delayed
Delivery Contracts and the issuance and sale of
the Offered Securities and, if the Offered
Securities are debt securities or preferred stock,
compliance with the terms and provisions thereof
will not violate any provision of Applicable Law
(as defined below) or the certificate of
incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, constitute a
breach or default under any agreement or other
instrument binding upon the Company or any of its
subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, violate any
judgment, order or decree of any governmental
body, agency or court having jurisdiction over the
Company or any subsidiary and the Company has full
corporate power and authority to authorize, issue
and sell the Offered Securities as contemplated in
the Terms Agreement (including the provisions of
this Agreement), and no consent, approval,
authorization or order of or qualification with
any governmental body or agency is required for
the performance by the Company of its obligations
under this Agreement, except such as have been
obtained and made under the Act and if the Offered
Securities are debt securities, the Trust
Indenture Act and except as otherwise expressly
stated herein, no opinion is expressed as to the
registration or other requirements of the federal
securities laws or the securities or Blue Sky laws
of any state in connection with the offer and sale
of the Offered Securities. "Applicable Law", as
used in this subparagraph, means laws which, in
such counsel's experience, are normally applicable
to, or relevant in connection with, transactions
of the type provided for in this Agreement or
issuers of the same type as the Company and is
limited to Mississippi law. For purposes of this
subparagraph counsel may assume that New York law
applies to the Indenture, the Terms Agreement, the
Offered Securities and any Delayed Delivery
Contracts. Such counsel need not express any
opinion as to any violation of any law which may
have become applicable to the Company as a result
of any facts specifically pertaining to you.
(f) The Representatives shall have received
from counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other
related matters as the Representatives may require, and
the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such
opinion, Simpson, Thacher & Bartlett may rely as to the
incorporation of the Company and all other matters
governed by Mississippi law upon the opinion of Watkins
Ludlam & Stennis, P.A.
(g) The Representatives shall have received a
certificate, dated the Closing Date, of the President
or any Vice-President and a principal financial or
accounting officer of the Company in which such
officers, to the best of their knowledge after
reasonable investigation, shall state that the
representations and warranties of the Company in this
Agreement are true and correct, that the Company has
complied with all agreements and satisfied all
conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, that no stop
order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or
are contemplated by the Commission and that, subsequent
to the date of the most recent financial statements in
the Prospectus, there has been no material adverse
change, nor any development or event involving a
prospective material adverse change, in the condition
(financial or other), business, properties or results
of operations of the Company and its subsidiaries taken
as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(h) The Representatives shall have received a
letter, dated the Closing Date, of KPMG Peat Marwick
LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred
to in such subsection will be a date not more than five
days prior to the Closing Date for the purposes of this
subsection.
The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and
documents as the Representatives reasonably request. The
Lead Underwriter may in its sole discretion waive on behalf
of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement and the
Terms Agreement.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company
by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in the Terms
Agreement.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement,
or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and
will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action
as such expenses are incurred, it being understood and
agreed that the only such information furnished by any
Underwriter consists of the information described as such in
the Terms Agreement.
(c) Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party
of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any
liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel
to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an
unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such
action.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other
from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or
claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be
in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company,
to each officer of the Company who has signed the
Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase
Offered Securities under the Terms Agreement and the
aggregate principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock)] of Offered
Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the
total principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock) of Offered
Securities, the Lead Underwriter may make arrangements
satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the
provisions of this Agreement), to purchase the Offered
Securities that such defaulting Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so
default and the aggregate principal amount (if debt
securities) or number of shares (if preferred stock or
Common Stock) of Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total
principal amount (if debt securities) or number of shares
(if preferred stock or Common Stock) of Offered Securities
and arrangements satisfactory to the Lead Underwriter and
the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such
default, the Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or
the Company, except as provided in Section 8. As used in
this Agreement, the term Underwriter includes any person
substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability
for its default. If the Offered Securities are debt
securities or preferred stock, the respective commitments of
the several Underwriters for the purposes of this Section
shall be determined without regard to reduction in the
respective Underwriters' obligations to purchase the
principal amounts (if debt securities) or numbers of shares
(if preferred stock) of the Offered Securities set forth
opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and
Obligations. The respective indemnities, agreements,
representations, warranties and other statements of the
Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including
the provisions of this Agreement) will remain in full force
and effect, regardless of any investigation, or statement as
to the results thereof, made by or on behalf of any
Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the
Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of
the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect.
If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than
solely because of the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event
specified in clause (iii), (iv) or (v) of Section 5(c), the
Company will reimburse the Underwriters for all out-of-
pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
9. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them at their
address furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at
Deposit Guaranty Corp., 210 East Capitol Street, Jackson,
Mississippi 39205, Attention: Clifford Harrison.
10. Successors. The Terms Agreement (including the
provisions of this Agreement) will inure to the benefit of
and be binding upon the Company and such Underwriters as are
identified in the Terms Agreement and their respective
successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will
have any right or obligation hereunder.
11. Representation of Underwriters. Any
Representatives will act for the several Underwriters in
connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement
(including the provisions of this Agreement) taken by the
Representatives jointly or by the Lead Underwriter will be
binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed
in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together
constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the
transactions contemplated thereby.
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M., New York time,
on ........................ ............, 19....)
DELAYED DELIVERY CONTRACT
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Deposit
Guaranty Corp. , a Mississippi corporation
( Company ), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert as of the date
hereof, for delivery on , 19 ( Delivery
Date ),]
[$]..............[shares]
principal amount of the Company s [Insert title of
securities] ( Securities ), offered by the Company s
Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating
thereto, receipt of copies of which is hereby acknowledged,
at % of the principal amount thereof plus accrued
interest, if any, $ per share plus accrued dividends,
if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ( Contract ).
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the
date hereof, for delivery on the dates set forth below,
Securities in the principal amounts set forth below:
PRINCIPAL AMOUNT
________________
NUMBER
DELIVERY DATE OF SHARES
_____________ _________
................... .............
................... .............
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has
agreed to purchase for delivery on the each Delivery Date
shall be made to the Company or its order by certified or
official bank check in New York Clearing House (next day)
funds at the office of at .M.
on the such Delivery Date upon delivery to the undersigned
of the Securities to be purchased by the undersigned for
delivery on such Delivery Date in definitive fully
registered form and in such denominations and registered in
such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less
than five full business days prior to the such Delivery
Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the
undersigned; that the purchase hereunder of Securities is to
be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of
the undersigned to take delivery of and make payment for,
Securities on the each Delivery Date shall be subject only
to the conditions that (1) investment in the Securities
shall not at the such Delivery Date be prohibited under the
laws of any jurisdiction in the United States to which the
undersigned is subject and (2) the Company shall have sold
to the Underwriters the total principal amount number of
shares of the Securities less the principal amount -number
of shares thereof covered by this and other similar
Contracts. The undersigned represents that its investment
in the Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned
is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters
the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied
by a copy copies of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection
therewith.
This Contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but
will not be assignable by either party hereto without the
written consent of the other.
It is understood that the acceptance of any such Contract
is in the Company's sole discretion and, without limiting
the foregoing, need not be on a first-come, first-served
basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will
become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
....................
(Name of Purchaser)
By
...................
..................
(Title of Signatory)
..................
..................
(Address of Purchaser)
Accepted, as of the above date.
DEPOSIT GUARANTY CORP.
By .....................
[Insert Title]
SCHEDULE A
Principal
Underwriter Amount
CS First Boston $ 50,000,000
Keefe, Bruyette & Woods, Inc. 50,000,000
Total . . . . . . . . . . . . . . . . $ 100,000,000
Deposit Guaranty Corp.
("Company")
Debt Securities
TERMS AGREEMENT
April 23, 1996
To: The Underwriters identified herein.
Dear Sirs:
The undersigned agrees to sell to the several
Underwriters named in Schedule A hereto for their respective
accounts, on and subject to the terms and conditions of the
Underwriting Agreement filed as an exhibit to the Company's
registration statement on Form S-3 (No. 33-64333) ("Underwriting
Agreement"), the following securities on the following terms:
TITLE: 7-1/4% Senior Notes Due May 1, 2006
PRINCIPAL AMOUNT: $100,000,000
INTEREST: 7-1/4% per annum, from April 26,
1996, payable semiannually on May 1
and November 1, commencing November
1, 1996, to holders of record on the
preceding April 15 or October 15, as
the case may be
MATURITY: May 1, 2006
OPTIONAL None
REDEMPTION:
SINKING FUND: None
LISTING: None
DELAYED DELIVERY
CONTRACTS: None
PURCHASE PRICE: 99.381% of principal amount, plus
accrued interest, if any, from April
26, 1996
EXPECTED REOFFERING 98.731% of principal amount, plus
PRICE: accrued interest, if any, from April
26, 1996
CLOSING: 10:00 A.M. on April 26, 1996, at
Simpson Thacher & Bartlett, in
immediately available funds
SETTLEMENT AND Book-Entry Only via DTC. The Offered
TRADING: Securities will trade in DTC's Same
Day Funds Settlement System
BLACKOUT: Zero days after the Closing Date
NAMES AND ADDRESSES CS First Boston Corporation and
OF THE Keefe, Bruyette & Woods, Inc.
UNDERWRITERS: c/o CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
The respective principal amounts of the Offered
Securities to be purchased by each of the Underwriters are set
forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are
incorporated herein by reference.
The Offered Securities will be made available for
checking and packaging at the office of DTC at least 24 hours
prior to the Closing Date.
For purposes of Section 6 of the Underwriting
Agreement, the only information furnished to the Company by any
Underwriter for use in the Prospectus consists of (i) the
following information in the Prospectus furnished on behalf of
each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the
offering by the Underwriters, the legend concerning over-
allotments and stabilizing on the inside front cover page of the
prospectus supplement and, the concession and reallowance figures
appearing in the third paragraph under the caption "Underwriting"
in the prospectus supplement; and (ii) the last paragraph in the
prospectus supplement under the heading "Underwriting."
If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return to the
Company one of the counterparts hereof, whereupon it will become
a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
DEPOSIT GUARANTY CORP.
By:
Title:
The foregoing Terms Agreement is
hereby confirmed and accepted as
of the date first above written.
CS First Boston Corporation
Keefe, Bruyette & Woods, Inc.
By CS FIRST BOSTON CORPORATION
By:
Title:
SCHEDULE A
Principal
Underwriter Amount
CS First Boston Corporation . . . . . . $ 50,000,000
Keefe, Bruyette & Woods, Inc . . . . . . 50,000,000
Total . . . . . . . . . . . . . . . $100,000,000
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR
REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE
NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A
NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR
IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENTAL AGENCY.
DEPOSIT GUARANTY CORP.
7 1/4% Senior Notes Due May 1, 2006
No. 1 $ 100,000,000
Cusip No. 249555AB9
Deposit Guaranty Corp., a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the "Company," which term
includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the
principal sum of One hundred million Dollars on May 1,
2006, and to pay interest thereon from April 26, 1996 or
from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-
annually on May 1 and November 1 in each year, commencing
November 1, 1996, at the rate of 7 1/4% per annum, until
the principal hereof is paid or made available for
payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of 7
1/4% per annum on any overdue principal and premium and
on any overdue installment of interest. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest, which shall be the April 15 or
October 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor
Securities) 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, notice whereof shall
be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if
any) and interest on this Security will be made at the
office or agency of the Company maintained for that
purpose in Atlanta, Georgia, in such coin or currency of
the United States of America as at the time of payment is
legal tender for payment of public and private debts,
provided, however, that at the option of the Company
payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address
shall appear in the Security Register.
Reference is hereby made to the further
provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon
has been executed by or on behalf of the Trustee referred
to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: April 26, 1996
DEPOSIT GUARANTY CORP.
[Seal]
By:
Name: Timothy D. Stokes
Title: Vice President
Attest:
Name: J. Clifford Harrison
Title: Secretary
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
SUNTRUST BANK, ATLANTA,
As Trustee
By:
Authorized Signatory
REVERSE
This Security is one of a duly authorized issue
of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more
series under an Indenture, dated as of April 26, 1996
(herein called the "Indenture"), between the Company and
SunTrust Bank, Atlanta, as Trustee (herein called the
"Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the
series designated on the face hereof, limited in
aggregate principal amount to $100,000,000.
This Security is not subject to redemption
prior to maturity.
The Indenture contains provisions for
defeasance at any time of the entire indebtedness
evidenced by this Security upon compliance by the Company
with certain conditions set forth therein, which
provisions apply to this Security.
The principal of this Security may be declared
due and payable upon the occurrence of an Event of
Default with respect to Securities of this series in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company
and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of the
Holders of not less than a majority in principal amount
of the Securities at the time Outstanding of all series
to be affected (voting as a single class). The Indenture
also contains provisions permitting the Holders of
specified percentages in principal amount of the
Securities of each series at the time Outstanding on
behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and
any premium and interest on this Security at the times,
place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of
this Security is registerable in the Security Register,
upon surrender of this Security for registration of
transfer at the office or agency of the Company in any
place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of
authorized denominations and for the same aggregate
principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only
in registered form without coupons in denominations of
$1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned
to them in the Indenture.
DEPOSIT GUARANTY CORP.
TO
SUNTRUST BANK, ATLANTA
Trustee
__________
SENIOR DEBT SECURITIES
__________
INDENTURE
Dated as of April 26, 1996
Deposit Guaranty Corp.
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
SECTION 310(a)(1) . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 6.8
6.10
SECTION 311(a) . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . 6.13
SECTION 312(a) . . . . . . . . . . 7.1
7.2(a)
(b) . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . 7.2(c)
SECTION 313(a). . . . . . . . . . . 7.3(a)
(b) . . . . . . . . . . . . 7.3(a)
(c) . . . . . . . . . . . . 7.3(a)
(d) . . . . . . . . . . . . 7.3(b)
SECTION 314(a). . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . 1.1
10.5
(b) . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . 1.2
SECTION 315(a). . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . 5.14
SECTION 316(a). . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . 5.2
5.12
(a)(1)(B) . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . 1.4(c)
SECTION 317(a)(1) . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . 10.4
SECTION 318(a) . . . . . . . . . . 1.7
____________________
NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the
Indenture.
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions and Other Provisions
of General Application . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . 2
Bank Subsidiary . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . 7
Principal Subsidiary . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . 8
Security Register . . . . . . . . . . . . . . . 8
Security Registrar . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . 9
Vice President . . . . . . . . . . . . . . . . . 9
Voting Stock . . . . . . . . . . . . . . . . . . 9
Yield to Maturity . . . . . . . . . . . . . . . 9
Section 1.2. Compliance Certificates and
Opinions . . . . . . . . . . . . 9
Section 1.3. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . 10
Section 1.4. Acts of Holders; Record Dates . . 11
Section 1.5. Notices, Etc., to Trustee and
Company . . . . . . . . . . . . . 13
Section 1.6. Notice to Holders; Waiver . . . . 13
Section 1.7. Conflict with Trust Indenture
Act . . . . . . . . . . . . . . . 14
Section 1.8. Effect of Headings and Table of
Contents . . . . . . . . . . . . 14
Section 1.9. Successors and Assigns . . . . . 14
Section 1.10. Separability Clause . . . . . . . 14
Section 1.11. Benefits of Indenture . . . . . . 15
Section 1.12. Governing Law . . . . . . . . . . 15
Section 1.13. Legal Holidays . . . . . . . . . 15
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally . . . . . . . . . 15
Section 2.2. Form of Face of Security . . . . 16
Section 2.3. Form of Reverse of Security . . . 18
Section 2.4. Form of Legend for Global
Securities . . . . . . . . . . . 24
Section 2.5. Form of Trustee's Certificate of
Authentication . . . . . . . . . 25
ARTICLE III
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in
Series . . . . . . . . . . . . . 26
Section 3.2. Denominations . . . . . . . . . . 29
Section 3.3. Execution, Authentication,
Delivery and Dating . . . . . . . 30
Section 3.4. Temporary Securities . . . . . . 32
Section 3.5. Registration, Registration of
Transfer and Exchange . . . . . . 33
Section 3.6 Mutilated, Destroyed,
Lost and Stolen Securities. . . . 35
Section 3.7. Payment of Interest; Interest
Rights Preserved . . . . . . . . 36
Section 3.8. Persons Deemed Owners . . . . . . 38
Section 3.9. Cancellation . . . . . . . . . . 38
Section 3.10. Computation of Interest . . . . . 38
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . 39
Section 4.2. Application of Trust Money . . . 40
ARTICLE V
REMEDIES
Section 5.1. Events of Default . . . . . . . . 41
Section 5.2. Acceleration of Maturity;
Rescission and Annulment . . . . 43
Section 5.3. Collection of Indebtedness and
Suits for Enforcement by
Trustee . . . . . . . . . . . . . 44
Section 5.4. Trustee May File Proofs of
Claim. . . . . . . . . . . . . . 45
Section 5.5. Trustee May Enforce Claims
Without Possession of
Securities . . . . . . . . . . . 46
Section 5.6. Application of Money Collected . 46
Section 5.7. Limitation on Suits . . . . . . . 46
Section 5.8. Unconditional Right of Holders
to Receive Principal, Premium
and Interest . . . . . . . . . . 47
Section 5.9. Restoration of Rights and
Remedies . . . . . . . . . . . . 48
Section 5.10. Rights and Remedies Cumulative . 49
Section 5.11. Delay or Omission Not Waiver . . 49
Section 5.12. Control by Holders . . . . . . . 49
Section 5.13. Waiver of Past Defaults . . . . . 50
Section 5.14. Undertaking for Costs . . . . . . 50
Section 5.15. Waiver of Stay or Extension
Laws . . . . . . . . . . . . . . 51
ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and
Responsibilities . . . . . . . . 51
Section 6.2. Notice of Defaults . . . . . . . 51
Section 6.3. Certain Rights of Trustee . . . . 52
Section 6.4. Not Responsible for Recitals or
Issuance of Securities . . . . . 53
Section 6.5. May Hold Securities . . . . . . . 54
Section 6.6. Money Held in Trust . . . . . . . 54
Section 6.7. Compensation and Reimbursement . 54
Section 6.8. Disqualification; Conflicting
Interests . . . . . . . . . . . . 55
Section 6.9. Corporate Trustee Required;
Eligibility . . . . . . . . . . . 55
Section 6.10. Resignation and Removal;
Appointment of Successor. . . . . 56
Section 6.11. Acceptance of Appointment by
Successor . . . . . . . . . . . . 58
Section 6.12. Merger, Conversion,
Consolidation or Succession to
Business . . . . . . . . . . . . 59
Section 6.13. Preferential Collection of
Claims Against Company . . . . . 60
Section 6.14. Appointment of Authenticating
Agent . . . . . . . . . . . . . . 60
ARTICLE VII
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names
and Addresses of Holders . . . . 62
Section 7.2 Preservation of Information;
Communications to Holders . . . . 63
Section 7.3. Reports by Trustee . . . . . . . 63
Section 7.4. Reports by Company . . . . . . . 64
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . 64
Section 8.2. Successor Corporation to Be
Substituted . . . . . . . . . . . 65
Section 8.3. Opinion of Counsel to Be Given
Trustee . . . . . . . . . . . . . 66
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without
Consent of Holders . . . . . . . 66
Section 9.2. Supplemental Indentures with
Consent of Holders . . . . . . . 68
Section 9.3. Execution of Supplemental
Indentures . . . . . . . . . . . 70
Section 9.4. Effect of Supplemental
Indentures . . . . . . . . . . . 70
Section 9.5. Conformity with Trust Indenture . 70
Section 9.6. Reference in Securities to
Supplemental Indentures. . . . 70
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium
and Interest . . . . . . . . . . 72
Section 10.2. Maintenance of Office or Agency . 72
Section 10.3. Vacancy in the Office of
Trustee . . . . . . . . . . . . . 73
Section 10.4 Money for Securities Payments
to Be Held in Trust . . . . . . . 73
Section 10.5. Statement by Officers as to
Default . . . . . . . . . . . . . 75
Section 10.6. Existence . . . . . . . . . . . . 75
Section 10.7. Limitation on Disposition of
Voting Stock of, and Merger or
Sale of Assets by, Principal
Subsidiaries . . . . . . . . . . 76
Section 10.8. Waiver of Certain Covenants . . . 77
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article . . . . 77
Section 11.2. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . 78
Section 11.3. Selection by Trustee of
Securities to Be Redeemed . . . . 78
Section 11.4. Notice of Redemption . . . . . . 79
Section 11.5. Deposit of Redemption Price . . . 80
Section 11.6. Securities Payable on Redemption
Date . . . . . . . . . . . . . . 80
Section 11.7. Securities Redeemed in Part . . . 81
ARTICLE XII
SINKING FUNDS
Section 12.1. Applicability of Article . . . . 81
Section 12.2. Satisfaction of Sinking Fund
Payments with Securities . . . . 82
Section 12.3. Redemption of Securities for
Sinking Fund . . . . . . . . . . 82
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.1. Applicability of Article;
Company's Option to Effect
Defeasance or Covenant
Defeasance . . . . . . . . . . . 83
Section 13.2. Defeasance and Discharge . . . . 83
Section 13.3. Covenant Defeasance . . . . . . . 84
Section 13.4 Conditions to Defeasance or
Covenant Defeasance . . . . . . . 84
Section 13.5. Deposited Money and U.S.
Government Obligations to Be
Held in Trust; Other
Miscellaneous Provisions . . . . 88
Section 13.6. Reinstatement . . . . . . . . . . 88
____________________
NOTE: This table of contents shall not, for any
purpose, be deemed to be a part of the
Indenture.
INDENTURE, dated as of April 26, 1996, between
Deposit Guaranty Corp., a corporation duly organized and
existing under the laws of the State of Mississippi
(herein called the "Company"), having its principal
offices at 210 East Capitol Street, Jackson, Mississippi,
and SunTrust Bank, Atlanta, a banking corporation duly
organized and existing under the laws of the State of
Georgia, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution
and delivery of this Indenture to provide for the
issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or
more series as in this Indenture provided.
All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its
terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and
the purchase of the Securities by the Holders thereof, it
is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE I.
Definitions and Other Provisions
of General Application
Section A. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context
otherwise requires:
1. the terms defined in this Article have
the meanings assigned to them in this Article
and include the plural as well as the singular;
2. all other terms used herein which are
defined in the Trust Indenture Act, either
directly or by reference therein, have the
meanings assigned to them therein;
3. all accounting terms not otherwise
defined herein have the meanings assigned to
them in accordance with generally accepted
accounting principles, and, except as otherwise
herein expressly provided, the term "generally
accepted accounting principles" with respect to
any computation required or permitted hereunder
shall mean such accounting principles as are
generally accepted at the date of such
computation; and
4. the words "herein," "hereof" and
"hereunder" and other words of similar import
refer to this Indenture as a whole and not to
any particular Article, Section or other
subdivision.
"Act," when used with respect to any Holder,
has the meaning specified in Section 1.4.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person
authorized by the Trustee pursuant to Section 6.14 to act
on behalf of the Trustee to authenticate Securities of
one or more series.
"Bank Subsidiary" shall mean any Subsidiary
which is engaged in (i) a commercial, merchant or other
banking business, or (ii) a trust business.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee
of that board or any directors or officers of the Company
to whom such board of directors shall have delegated its
authority to act hereunder.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any
Place of Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, or, if at any
time after the execution of this instrument such
Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the
"Company" in the first paragraph of this instrument until
a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a
written request or order signed in the name of the
Company by its Chairman of the Board, its Vice Chairman
of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of
the Trustee in Atlanta, Georgia at which at any
particular time its corporate trust business shall be
principally administered.
"corporation" means a corporation, association,
company, joint-stock company or business trust.
"Defaulted Interest" has the meaning specified
in Section 3.7.
"Depositary" means, with respect to the
Securities of any series issuable or issued in whole or
in part in the form of one or more Global Securities, the
Person designated as Depositary for such series by the
Company pursuant to Section 3.1, which Person shall be a
clearing agency registered under the Securities Exchange
Act of 1934, as amended; and if at any time there is more
than one such Person, "Depositary," as used with respect
to the Securities of any series, shall mean the
Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in
Section 5.1.
"Exchange Act" means the Securities Exchange
Act of 1934 as it may be amended and any successor act
thereto.
"Global Security" means a Security bearing the
legend prescribed in Section 2.4 evidencing all or part
of a series of Securities, authenticated and delivered to
the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a
Security is registered in the Security Register.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument,
and any such supplemental indenture, the provisions of
the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities
established as contemplated by Section 3.1.
"interest," when used with respect to an
Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect
to any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officers' Certificate" means a certificate
signed by the Chairman of the Board, a Vice Chairman of
the Board, the President or a Vice President, Chief
Financial Officer or Controller and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
One of the officers signing an Officers' Certificate
given pursuant to Section 10.5 shall be the principal
executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who
shall be acceptable to the Trustee.
"Original Issue Discount Security" means any
Security which provides for an amount less than the
principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by
the Trustee or delivered to the Trustee for
cancellation;
(2) Securities for whose payment or
redemption money in the necessary amount has
been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by
the Company (if the Company shall act as its
own Paying Agent) for the Holders of such
Securities; provided that, if such Securities
are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture
or provision therefor satisfactory to the
Trustee has been made; and
(3) Securities which have been paid
pursuant to Section 3.6 or in exchange for or
in lieu of which other Securities have been
authenticated and delivered pursuant to this
Indenture, other than any such Securities in
respect of which there shall have been
presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide
purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the
Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver
hereunder, (i) 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 acceleration of the Maturity thereof pursuant to
Section 5.2, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency
units shall be the U.S. dollar equivalent, determined in
the manner provided as contemplated by Section 3.1 on the
date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date
of original issuance of such Security of the amount
determined as provided in (i) above) of such Security,
and (iii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by
the Company to pay the principal of or any premium or
interest on any Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated
organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to
the Securities of any series, means the place or places
where the principal of and any premium and interest on
the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular
Security means every previous Security evidencing all or
a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this
definition, any Security authenticated and delivered
under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Principal Subsidiary" means Deposit Guaranty
National Bank, a national banking association, Commercial
National Bank, a national banking association, Citizens
National Bank, a national banking association or
Merchants National Bank, a national banking association,
and any successors to such banks.
"Redemption Date", when used with respect to
any Security to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to
any Security to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable
on any Interest Payment Date on the Securities of any
series means the date specified for that purpose as
contemplated by Section 3.1.
"Responsible Officer," when used with respect
to the Trustee, means the chairman or any vice-chairman
of the board of directors, the chairman or any vice-
chairman of the executive committee of the board of
directors, the chairman of the trust committee, the
president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust
officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee
customarily performing functions similar to those
performed by any of the above designated officers and
also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the
first recital of this Indenture and more particularly
means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar"
have the respective meanings specified in Section 3.5.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.7.
"Stated Maturity", when used with respect to
any Security or any installment of principal thereof or
interest thereon, means the date specified in such
Security as the fixed date on which the principal of such
Security or such installment of principal or interest is
due and payable.
"Subsidiary" means a corporation more than 50%
of the outstanding Voting Stock of which is owned,
directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Trustee" means the Person named as the
"Trustee" in the first paragraph of this instrument until
a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture
Act of 1939 as in force at the date as of which this
instrument was executed; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"Vice President", when used with respect to the
Company or the Trustee, means any vice president (but
shall not include any assistant vice president), whether
or not designated by a number or a word or words added
before or after the title "vice president."
"Voting Stock" means stock which ordinarily has
voting power for the election of at least a majority of
the board of directors, whether at all times or only so
long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity," when used with respect to
any Original Issue Discount Security, shall mean the
yield to maturity, if any, set forth in the prospectus
supplement relating thereto, which shall be equal to the
yield to maturity, if any, set forth on the face of such
Security.
Section B. Compliance Certificates and Opinions.
Upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee
such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this
Indenture.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include
1. a statement that each individual
signing such certificate or opinion has read
such covenant or condition and the definitions
herein relating thereto;
2. a brief statement as to the nature and
scope of the examination or investigation upon
which the statements or opinions contained in
such certificate or opinion are based;
3. a statement that, in the opinion of
each such individual, he has made such
examination or investigation as is necessary to
enable him to express an informed opinion as to
whether or not such covenant or condition has
been complied with; and
4. a statement as to whether, in the
opinion of each such individual, such condition
or covenant has been complied with.
Section C. Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company
stating that the information with respect to such factual
matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or
representations with respect to such matters are
erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section D. Acts of Holders; Record Dates.
a. Any request, demand, authorization,
direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided
in this Section.
Without limiting the generality of the
foregoing, a Holder, including a Depositary that is a
Holder of a Global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted in
this Indenture to be made, given or taken by Holders, and
a Depositary that is a Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of
interest in any such Global Security.
b. The fact and date of the execution by any
Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a
certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any
such instrument or writing, or the authority of the
Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
c. The Company may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the
record date for the purpose of determining the Holders of
Securities of any series entitled to give or take any
request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any
action, authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of
Securities of such series made by any Person in respect
of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action
or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation
or vote, as the case may be. With regard to any record
date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of
such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on,
the relevant action.
d. The ownership of Securities shall be proved
by the Security Register.
e. Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of
such action is made upon such Security.
f. Without limiting the foregoing, a Holder
entitled hereunder to give or take any action hereunder
with regard to any particular Security may do so with
regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard
to all or any different part of such principal amount.
Section E. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
1. the Trustee by any Holder or by the
Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate
Trust Office, 58 Edgewood Avenue, Annex, 4th
Floor, P.O. Box 4625, Atlanta, Georgia, 30303,
Attention: Bryan Echols, or
2. the Company by the Trustee or by any
Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class
postage prepaid, to it at the address of its
principal office in Jackson, Mississippi
specified in the first paragraph of this
instrument or at any other address previously
furnished in writing to the Trustee by the
Company.
Section F. Notice to Holders; Waiver.
Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it
appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by
the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such
notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for
every purpose hereunder.
Section G. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act
that is required under such Act to be a part of and
govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
Section H. Effect of Headings and Table of Contents.
The Article and Section headings herein and the
Table of Contents are for convenience only and shall not
affect the construction hereof.
Section I. Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
Section J. Separability Clause.
In case any provision in this Indenture or in
the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be
affected or impaired thereby.
Section K. Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section L. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of New York.
Section M. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities (other than a provision of the
Securities of any series which specifically states that
such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as
if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity, provided that no interest
shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE II.
Security Forms
Section A. Forms Generally.
The Securities of each series shall be in
substantially the form set forth in this Article, or in
such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of
identification and such legends or endorsements placed
thereon as may be required to comply with the rules of
any securities exchange or as may, consistently herewith,
be determined by the officers of the Company executing
such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is
established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and
delivery of such Securities.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the
officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
Section B. Form of Face of Security.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENTAL AGENCY.
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
DEPOSIT GUARANTY CORP.
. . . . . . . . . . . . . . . . . . . .
No. ....... $ ......
Deposit Guaranty Corp., a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the "Company," which term
includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby
promises to pay to ...................................,
or registered assigns, the principal sum of
..................... Dollars on
............................. [if the Security is to bear
interest prior to Maturity, insert -- , and to pay
interest thereon from ............. or from the most
recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on .............
and ................ in each year, commencing .........,
at the rate of ....% per annum, until the principal
hereof is paid or made available for payment [if
applicable, insert -- , and (to the extent that the
payment of such interest shall be legally enforceable) at
the rate of ....% per annum on any overdue principal and
premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest, which shall be the ........ or
.......... (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor
Securities) 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, notice whereof shall
be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior
to Maturity, insert -- The principal of this Security
shall not bear interest except in the case of a default
in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at
the rate of ....% per annum (to the extent that the
payment of such interest shall be legally enforceable),
which shall accrue from the date of such default in
payment to the date payment of such principal has been
made or duly provided for. Interest on any overdue
principal shall be payable on demand.
Payment of the principal of (and premium, if
any) and [if applicable, insert -- any such] interest on
this Security will be made at the office or agency of the
Company maintained for that purpose in ..........., in
such coin or currency of [the United States of America]
[insert other currency, if applicable] as at the time of
payment is legal tender for payment of public and private
debts [if applicable, insert -- ; provided, however, that
at the option of the Company payment of interest may be
made by check mailed to the address of the Person
entitled thereto as such address shall appear in the
Security Register].
Reference is hereby made to the further
provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon
has been executed by or on behalf of the Trustee referred
to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
DEPOSIT GUARANTY CORP.
By.....................
Attest:
...........................
Section C. Form of Reverse of Security.
This Security is one of a duly authorized issue
of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________ __,
1995 (herein called the "Indenture"), between the Company
and SunTrust Bank, Atlanta, as Trustee (herein called the
"Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the
series designated on the face hereof[, limited in
aggregate principal amount to $..........].
[If applicable, insert -- The Securities of
this series are subject to redemption upon not less than
30 days' notice by first-class mail, [if applicable,
insert -- (1) on ........... in any year commencing with
the year ...... and ending with the year ...... through
operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount,
and (2)] at any time [on or after .........., 19..], as a
whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [on or before
................, __%, and if redeemed] during the 12-
month period beginning ............ of the years
indicated
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to .....% of
the principal amount, together in the case of any such
redemption [if applicable, insert -- (whether through
operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert -- The Securities of
this series are subject to redemption upon not less than
30 days' notice by first-class mail, (1) on ............
in any year commencing with the year .... and ending with
the year .... through operation of the sinking fund for
this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the
table below, and (2) at any time [on or after
............], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12-
month period beginning ............ of the years
indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to .....% of
the principal amount, together in the case of any such
redemption (whether through operation of the sinking fund
or otherwise) with accrued interest to the Redemption
Date, but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of
business on the relevant Record Date referred to on the
face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company
may not, prior to ............., redeem any Securities of
this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of,
any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to
the Company (calculated in accordance with generally
accepted financial practice) of less than ......% per
annum.]
[The sinking fund for this series provides
for the redemption on .............. in each year
beginning with the year ..... and ending with the year
.... of [not less than $........... ("mandatory sinking
fund") and not more than] $.......... aggregate principal
amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments
otherwise required to be made [if applicable, insert --
in the inverse order in which they become due].]
[If the Security is subject to redemption,
insert -- In the event of redemption of this Security in
part only, a new Security or Securities of this series
and of like tenor for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert -- This Security is not
subject to redemption prior to maturity.]
[If applicable, insert -- The Indenture
contains provisions for defeasance at any time of [(a)
(the entire indebtedness evidenced by this Security] (and
(b)) [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set
forth therein, which provisions apply to this Security.]
[If the Security is not an Original Issue
Discount Security, insert -- The principal of this
Security may be declared due and payable upon the
occurrence of an Event of Default with respect to
Securities of this series in the manner and with the
effect provided in the Indenture.]
[If the Security is an Original Issue Discount
Security, insert -- The principal of this Security may be
declared due and payable upon the occurrence of an Event
of Default with respect to Securities of this series in
the manner and with the effect provided in the Indenture.
Such amount shall be equal to -- insert formula for
determining the amount. Upon payment [if applicable,
insert -- (i)] of the amount of principal so declared due
and payable [if applicable, insert -- and (ii) of
interest on any overdue principal and overdue interest
(in each case to the extent that the payment of such
interest shall be legally enforceable)], all of the
Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of
this series shall terminate.]
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company
and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of the
Holders of not less than a majority in principal amount
of the Securities at the time Outstanding of all series
to be affected (voting as a single class). The Indenture
also contains provisions permitting the Holders of
specified percentages in principal amount of the
Securities of each series at the time Outstanding on
behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and
any premium and interest on this Security at the times,
place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of
this Security is registerable in the Security Register,
upon surrender of this Security for registration of
transfer at the office or agency of the Company in any
place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of
authorized denominations and for the same aggregate
principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only
in registered form without coupons in denominations of
$....... and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations
therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of a
different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned
to them in the Indenture.
Section D. Form of Legend for Global Securities.
Any Global Security authenticated and delivered
hereunder shall bear a legend in substantially the
following form:
"This Security is a Global Security within
the meaning of the Indenture hereinafter
referred to and is registered in the name of a
Depositary or a nominee thereof. This Security
may not be transferred to, or registered or
exchanged for Securities registered in the name
of, any Person other than the Depositary or a
nominee thereof and no such transfer may be
registered, except in the limited circumstances
described in the Indenture. Every Security
authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu
of, this Security shall be a Global Security
subject to the foregoing, except in such
limited circumstances."
Section E. Form of Trustee's Certificate of
Authentication.
The Trustee's certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
SUNTRUST BANK, ATLANTA
________________________________,
As Trustee
By..............................
Authorized Signatory
ARTICLE III.
The Securities
Section A. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to a
Board Resolution and, subject to Section 3.3, set forth,
or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities
of any series:
1. the title of the Securities of the
series (which shall distinguish the Securities
of the series from Securities of any other
series);
2. any limit upon the aggregate principal
amount of the Securities of the series which
may be authenticated and delivered under this
Indenture (except for Securities authenticated
and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other
Securities of the series pursuant to Section
3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are
deemed never to have been authenticated and
delivered hereunder);
3. the Person to whom any interest on a
Security of the series shall be payable, if
other than the Person in whose name that
Security (or one or more Predecessor
Securities) is registered at the close of
business on the Regular Record Date for such
interest;
4. the date or dates on which the
principal of the Securities of the series is
payable;
5. the rate or rates at which the
Securities of the series shall bear interest,
if any, the date or dates from which such
interest shall accrue, the Interest Payment
Dates on which any such interest shall be
payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
6. the place or places where the
principal of and any premium and interest on
Securities of the series shall be payable;
7. the period or periods within which,
the price or prices at which and the terms and
conditions upon which Securities of the series
may be redeemed, in whole or in part, at the
option of the Company;
8. the obligation, if any, of the Company
to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof
and the period or periods within which, the
price or prices at which and the terms and
conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
9. if other than denominations of $1,000
and any integral multiple thereof, the
denominations in which Securities of the series
shall be issuable;
10. the currency, currencies or currency
units in which payment of the principal of and
any premium and interest on any Securities of
the series shall be payable if other than the
currency of the United States of America and
the manner of determining the equivalent
thereof in the currency of the United States of
America for purposes of the definition of
"Outstanding" in Section 1.1;
11. if the amount of payments of
principal of or any premium or interest on any
Securities of the series may be determined with
reference to an index or formula, the manner in
which such amounts shall be determined;
12. if the principal of or any premium or
interest on any Securities of the series is to
be payable, at the election of the Company or a
Holder thereof, in one or more currencies or
currency units other than that or those in
which the Securities are stated to be payable,
the currency, currencies or currency units in
which payment of the principal of and any
premium and interest on Securities of such
series as to which such election is made shall
be payable, and the periods within which and
the terms and conditions upon which such
election is to be made;
13. if other than the principal amount
thereof, the portion of the principal amount of
Securities of the series which shall be payable
upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;
14. the application, if any, of either or
both of Section 13.2 and Section 13.3 to the
Securities of the series;
15. whether the Securities of the series
shall be issuable in whole or in part in the
form of one or more Global Securities and, in
such case, the Depositary or Depositaries for
such Global Security or Global Securities and
any circumstances other than those set forth in
Section 3.5 in which any such Global Security
may be transferred to, and registered and
exchanged for Securities registered in the name
of, a Person other than the Depositary for such
Global Security or a nominee thereof and in
which any such transfer may be registered;
16. if other than as specified in Section
5.1, the Events of Default applicable with
respect to the Securities of the series;
17. if other than as specified in Section
5.2, the Events of Default the occurrence of
which would permit the declaration of the
acceleration of Maturity pursuant to Section
5.2;
18. any other covenant or warranty
included for the benefit of Securities of the
series in addition to (and not inconsistent
with) those included in this Indenture for the
benefit of Securities of all series, or any
other covenant or warranty included for the
benefit of Securities of the series in lieu of
any covenant or warranty included in this
Indenture for the benefit of Securities of all
series, or any provision that any covenant or
warranty included in this Indenture for the
benefit of Securities of all series shall not
be for the benefit of Securities of such
series, or any combination of such covenants,
warranties or provisions; and
19. any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture, except as
permitted by Section 9.1(5)).
All Securities of any one series shall be
substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to
Section 3.3) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above
or in any such indenture supplemental hereto.
If any of the terms of a series are established
by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate setting forth the terms of
such series.
Section B. Denominations.
The Securities of each series shall be issuable
in registered form without coupons in such denominations
as shall be specified as contemplated by Section 3.1. In
the absence of any such provisions with respect to the
Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section C. Execution, Authentication, Delivery and
Dating.
The Securities shall be executed on behalf of
the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such
offices at the date of such Securities.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company
to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the
Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of
the series have been established in or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and
3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall
be fully protected in relying upon, an Opinion of Counsel
stating,
a. if the form of such Securities has
been established by or pursuant to Board
Resolution as permitted by Section 2.1, that
such form has been established in conformity
with the provisions of this Indenture;
b. if the terms of such Securities have
been established by or pursuant to Board
Resolution as permitted by Section 3.1, that
such terms have been established in conformity
with the provisions of this Indenture; and
c. that such Securities, when
authenticated and delivered by the Trustee and
issued by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, will constitute valid and legally
binding obligations of the Company enforceable
in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights and to general equity
principles.
If such form or terms have been so established, the
Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1
and of the preceding paragraph, if all Securities of a
series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or
the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior
to the time of authentication of each Security of such
series if such documents are delivered at or prior to the
authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a
certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual
signature of an authorized signatory, and such
certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as
provided in Section 3.9, for all purposes of this
Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section D. Temporary Securities.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate
insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine,
as evidenced by their execution of such Securities.
If temporary Securities of any series are
issued, the Company will cause definitive Securities of
that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series
at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of
the same series, of any authorized denominations and of a
like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and
tenor.
Section E. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the
corporate trust office of SunTrust Bank, Atlanta a
register (the register maintained in such office being
herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it or
the Security Registrar may prescribe, the Company shall
provide for the registration of Securities and of
transfers of Securities. SunTrust Bank, Atlanta is
hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of
any Security of any series at the office or agency in a
Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any
authorized denominations, and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any
series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of
the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any
registration of transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant
to Section 3.4, 9.6 or 13.7 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any
series during a period beginning at the opening of
business 15 days before the day of the mailing of a
notice of redemption of Securities of that series
selected for redemption under Section 11.3 and ending at
the close of business on the day of such mailing, or (ii)
to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in
part.
Notwithstanding the foregoing and except as
otherwise specified or contemplated by Section 3.1, no
Global Security shall be exchangeable pursuant to this
Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and no transfer of a Global
Security of any series may be registered to, any Person
other than the Depositary for such Security or its
nominee, unless (1) such Depositary (A) notifies the
Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) ceases to be a
clearing agency registered under the Securities Exchange
Act of 1934, as amended, (2) the Company executes and
delivers to the Trustee a Company Order that such Global
Security shall be so exchangeable and the transfer
thereof so registerable, or (3) there shall have occurred
and be continuing an Event of Default, or an event which
with notice or lapse of time or both would become an
Event of Default, with respect to the Securities
evidenced by such Global Security. Upon the occurrence
in respect of any Global Security of any series of any
one or more of the conditions specified in clause (1),
(2) or (3) of the preceding sentence or such other
conditions as may be specified as contemplated by Section
3.1 for such series, such Global Security may be
exchanged for Securities registered in the names of, and
the transfer of such Global Security may be registered
to, such Persons (including Persons other than the
Depositary with respect to such series and its nominees)
as such Depositary shall direct. Notwithstanding any
other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, any Global
Security shall also be a Global Security and shall bear
the legend specified in Section 204 except for any
Security authenticated and delivered in exchange for, or
upon registration of transfer of, a Global Security
pursuant to the preceding sentence.
Section 3.6 Mutilated, Destroyed,
Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save
each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the
same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and
proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
Section 3.7. Payment of Interest; Interest Rights
Preserved.
Except as otherwise provided as contemplated by
Section 3.1 with respect to any series of Securities,
interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security of any series
which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable
to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted
Interest shall be paid by the Company, at its election,
either as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment
of any Defaulted Interest to the Persons in
whose names the Securities of such series (or
their respective Predecessor Securities) are
registered at the close of business on a
Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security
of such series and the date of the proposed
payment, and at the same time the Company shall
deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of
the proposed payment, such money when deposited
to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days
prior to the date of the proposed payment and
not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company
of such Special Record Date and, in the name
and at the expense of the Company, shall cause
notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor to be mailed, first class postage
prepaid, to each Holder of Securities of such
series at his address as it appears in the
Security Register, not less than 10 days prior
to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of
such series (or their respective Predecessor
Securities) are registered at the close of
business on such Special Record Date and shall
no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any
Defaulted Interest on the Securities of any
series in any other lawful manner not
inconsistent with the requirements of any
securities exchange on which such Securities
may be listed, and upon such notice as may be
required by such exchange, if, after notice
given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this
Section, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving
payment of principal of and any premium and (subject to
Section 3.7) any interest on such Security and for all
other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 3.9. Cancellation.
All Securities surrendered for payment,
redemption, registration of transfer or exchange or for
credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other person for
delivery to the Trustee) for cancellation any securities
previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order, subject to
any requirements of law.
Section 3.10. Computation of Interest.
Except as otherwise specified as contemplated
by Section 3.1 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of
Indenture.
This Indenture shall upon Company Request cease
to be of further effect (except as to any surviving
rights of registration of transfer or exchange of
Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore
authenticated and delivered (other than (i)
Securities which have been destroyed, lost or
stolen and which have been replaced or paid as
provided in Section 3.6 and (ii) Securities for
whose payment money has theretofore been
deposited in trust or segregated and held in
trust by the Company and thereafter repaid to
the Company or discharged from such trust, as
provided in Section 10.4) have been delivered
to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and
payable, or
(ii) will become due and
payable at their Stated Maturity
within one year, or
(iii) are to be called for
redemption within one year under
arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the
name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or
(iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on
such Securities not theretofore delivered to
the Trustee for cancellation, for principal and
any premium and interest to the date of such
deposit (in the case of Securities which have
become due and payable) or to the Stated
Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions
precedent herein provided for relating to the
satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations, if any, of the
Company to the Trustee under Section 6.7 and, if money
shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.4 shall survive.
Section 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph
Of Section 10.4, all money deposited with the Trustee
pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the
principal and any premium and interest for whose payment
such money has been deposited with the Trustee.
ARTICLE V
Remedies
Section 5.1. Events of Default.
"Event of Default," wherever used herein with
respect to Securities of any particular series, means any
one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) default in the due and punctual
payment of any instalment of interest upon any
of the Securities of that series as and when
the same shall become due and payable and
continuance of such default for a period of 30
days; or
(b) default in the due and punctual
payment of the principal of (or premium, if
any, on) any of the Securities of that series
as and when the same shall become due and
payable either at maturity, by declaration as
authorized by this Indenture, or otherwise; or
(c) default in the deposit of any sinking
fund payment, when and as due by the terms of a
Security of that series; or
(d) failure on the part of the Company
duly to observe or perform any other of the
covenants or agreements on the part of the
Company set forth in the Securities of that
series or in this Indenture (other than those
set forth exclusively in the terms of
Securities of any series other than that
series, or those which have been included in
this Indenture for the benefit of Securities of
any series other than that series) continued
for a period of 60 days after there has been
given, by registered or certified mail, to the
Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in
principal amount of the Securities of that
series at the time outstanding, a written
notice specifying such failure and requiring
the same to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the entry of a decree or order by a
court having jurisdiction in the premises
granting relief in respect of the Company or
any Principal Subsidiary in an involuntary case
under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law adjudging the Company or any
Principal Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition
seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company
or any Principal Subsidiary under any
applicable Federal or State law, or appointing
a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar
official) of the Company or any Principal
Subsidiary, or of any substantial part of the
respective properties of either, or ordering
the winding up or liquidation of the affairs of
either, and the continuance of any such decree
or order unstayed and in effect for a period of
60 consecutive days; or
(f) the institution by the Company or any
Principal Subsidiary of proceedings to be
adjudicated a bankrupt or insolvent, or the
consent by the Company or any Principal
Subsidiary to the institution of bankruptcy or
insolvency proceedings against it, or the
filing by the Company or any Principal
Subsidiary of a petition or answer or consent
seeking reorganization or relief under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar
law, or the consent by the Company or any
Principal Subsidiary to the filing of any such
petition or to the appointment of a receiver,
liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the
Company or any Principal Subsidiary, or of any
substantial part of the respective properties
of either, or the making by the Company or any
Principal Subsidiary of an assignment for the
benefit of creditors, or the admission by the
Company or any Principal Subsidiary in writing
of its inability to pay its debts generally as
they become due, or the taking of corporate
action by the Company or any Principal
Subsidiary in furtherance of any such action;
or
(g) any other Event of Default provided
with respect to Securities of that series.
Section 5.2. Acceleration of Maturity; Rescission
and Annulment.
In case one or more of the Events of Default
specified in Section 5.1 shall have occurred and be
continuing with respect to any particular series of
Securities, then and in each and every such case, unless
the principal of all of the Securities of that series
shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of that series then
Outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by Holders), may
declare the principal or, in the case of Original Issue
Discount Securities, such amount of principal as may be
provided for in such Securities, of all the Securities of
that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture
or in the Securities of that series contained to the
contrary notwithstanding. This provision, however, is
subject to the condition that if, at any time after such
principal or such amount of principal, as the case may
be, shall have been so declared due and payable, and
before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all Securities of
that series and the principal of (and premium, if any,
on) any and all Securities of that series which shall
have become due otherwise than by acceleration (with
interest on overdue installments of interest (to the
extent that payment of such interest is enforceable under
applicable law) and on such principal (and premium, if
any) at the rate of interest prescribed therefor by such
Securities, to the date of such payment or deposit and
the expenses of the Trustee, including the reasonable
fees of its counsel, and any and all defaults under this
Indenture with respect to the Securities of the series,
other than the nonpayment of principal of (and premium,
if any) and accrued interest on the Securities of that
series which shall have become due by acceleration shall
have been remedied -- then and in every such case the
holders of a majority in aggregate principal amount of
the Securities of that series then outstanding, by
written notice to the Company and to the Trustee, may
waive all defaults and rescind and annul such declaration
and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent
thereon.
In case the Trustee shall have proceeded to
enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue
as though no such proceeding had been taken.
Section 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any
interest on any Security when such interest
becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities,
the whole amount then due and payable on such Securities
for principal and any premium and interest and, to the
extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to
Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to
the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed
to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding; provided,
however, the Trustee may vote on behalf of the Holders
for the election of a trustee in bankruptcy or similar
official and may be a member of a creditors' or other
similar committee.
Section 5.5. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or
any premium or interest, upon presentation of the
Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due
the Trustee under Section 6.7; and
SECOND: To the payment of the amounts then
due and unpaid for principal of and any premium
and interest on the Securities in respect of
which or for the benefit of which such money
has been collected, ratably, without preference
or priority of any kind, according to the
amounts due and payable on such Securities for
principal and any premium and interest,
respectively.
Section 5.7. Limitation on Suits.
No Holder of any Security of any series shall
have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given
written notice to the Trustee of a continuing
Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities
of that series shall have made written request
to the Trustee to institute proceedings in
respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee
during such 60-day period by the Holders of a
majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
Section 5.8. Unconditional Right of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject
to Section 3.7) any interest on such Security on the
Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without
the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost
or stolen Securities in the last paragraph of Section
3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or
to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount
of the Outstanding Securities of any series shall have
the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such
series, provided that
(1) such direction shall not be in
conflict with any rule of law or with this
indenture,
(2) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section
6.1, the Trustee shall have the right to
decline to follow any such direction if the
Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine
that the proceeding so directed would involve
the Trustee in personal liability.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(1) in the payment of the principal of or
any premium or interest on any Security of such
series, or
(2) in respect of a covenant or provision
hereof which under Article Nine cannot be
modified or amended without the consent of the
Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease
to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of
this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right
consequent thereon.
Section 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it
as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided that neither this Section
nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such
an assessment in any suit instituted by the Company or
the Trustee.
Section 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE VI
The Trustee
Section 6.1. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall
be subject to the provisions of this Section.
Section 6.2. Notice of Defaults.
If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such
default known to the Trustee as and to the extent
provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character
specified in Section 5.1(d) with respect to Securities of
such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to
Securities of such series.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other
paper or document believed by it to be genuine
and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the
Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order
and any resolution of the Board of Directors
may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of
this Indenture the Trustee shall deem it
desirable that a matter be proved or
established prior to taking, suffering or
omitting any action hereunder, the Trustee
(unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate,
except that in the case of any such Officers'
Certificate which by any provision hereof is
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not it
conforms to the requirements of the Indenture;
(d) the Trustee may consult with counsel
and the advice of such counsel or any Opinion
of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it
hereunder in good faith and in reliance
thereon, except that in the case of any such
Opinion of Counsel which by any provision
hereof is specifically required to be furnished
to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether
or not it conforms to the requirements of the
Indenture;
(e) the Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Indenture at the
request or direction of any of the Holders
pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable
security or indemnity against the costs,
expenses and liabilities which might be
incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to
make any investigation into the facts or
matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in
its discretion, may make such further inquiry
or investigation into such facts or matters as
it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall be entitled to examine
the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any
duties hereunder either directly or by or
through agents or attorneys and the Trustee
shall not be responsible for any misconduct or
negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 6.4. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent
of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with
the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no
liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
Section 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to
time reasonable compensation for all services
rendered by it hereunder (which compensation
shall not be limited by any provision of law in
regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly
provided herein, to reimburse the Trustee upon
its request for all reasonable expenses,
disbursements and advances incurred or made by
the Trustee in accordance with any provision of
this Indenture (including the reasonable
compensation and the expenses and disbursements
of its agents and counsel), except any such
expense, disbursement or advance as may be
attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee and its
directors, officers, agents and employees for,
and to hold each of them harmless against, any
loss, liability or expense incurred without
negligence or bad faith on its or their
respective parts, as the case may be, arising
out of or in connection with the acceptance or
administration of the trust or trusts
hereunder, including the costs and expenses of
defending against any claim or liability in
connection with the exercise or performance of
any of the powers or duties of the Trustee
hereunder.
As security for the performance of the
obligations of the Company under this Section the Trustee
shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of
principal of, premium, if any, or interest, if any, on
particular Securities.
The provisions of this Section shall survive
the termination of this Indenture or the resignation or
removal of the Trustee.
Section 6.8. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 and its
Corporate Trust Office in the United States or any State
or Territory thereof or the District of Columbia. If
such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this
Article.
Section 6.10. Resignation and Removal;
Appointment of Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance
of appointment by the successor Trustee in accordance
with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section
6.11 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time
with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
section 6.8 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 6.9 and shall fail to resign after
written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conversion or liquidation,
then in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding
Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the
Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required
by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the
manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to
the Securities of such series and the address of its
Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but,
on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one
or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute
such Trustees cotrustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor
Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) and (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under
this Article.
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such
other obligor).
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents (which may be an Affiliate of the Company) with
respect to one or more series of Securities which shall
be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon
original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws
of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act
as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State
authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified
in this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to
the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities of the
series with respect to which such Authenticating Agent
will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
Unless the Authenticating Agent has been
appointed by the Trustee at the request of the Company,
the Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to
the provisions of Section 6.7.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities
of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an
alternative certificate of authentication in the
following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
SUNTRUST BANK, ATLANTA
As Trustee
By.........................
As Authenticating Agent
By.........................
Authorized Signatory
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than June 30
and December 31 in each year, a list for each
series Outstanding, in such form as the Trustee
may reasonably require, of the names and
addresses of the Holders of Securities of each
such series as of the preceding June 15 or
December 15, and
(b) at such other times as the Trustee
may request in writing, within 30 days after
the receipt by the Company of any such request,
a list of similar form and content as of a date
not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received
by the Trustee in its capacity as Security Registrar, if
it is acting as such.
Section 7.2. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list
furnished to the Trustee as provided in Section 7.1 and
the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar, if it is
acting as such. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt
of a new list so furnished.
(b) The rights of the Holders to communicate
with other Holders with respect to their rights under
this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving
and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any
director, officer, employee or agent of either of them
shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided
pursuant thereto. To the extent that any such report is
required by the Trust Indenture Act with respect to any
12-month period, such report shall cover the 12-month
period ending July 15 and shall be transmitted by the
next succeeding September 15.
(b) A copy of each such report shall, at the
time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 7.4. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof,
as may be required pursuant to the Trust indenture Act at
the times and in the manner provided pursuant to such
Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only
on Certain Terms.
Nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or
merger of the Company with or into any other Person, or
successive consolidations or mergers in which the Company
or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or
lease of the properties and assets of the Company
substantially as an entirety to any other Person
authorized to acquire and operate the same; provided,
however, that the Person formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a corporation organized and validly
existing under the laws of the United States of America,
any State thereof or the District of Columbia; provided
further, the Company hereby covenants and agrees, that
upon any such consolidation, merger, transfer, conveyance
or lease, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all of
the Securities, according to their tenor, and the due and
punctual performance and observance of all of the
covenants and conditions of this Indenture to be
performed by the Company shall be expressly assumed by
supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the
Person (if other than the Company) formed by such
consolidation, or into which the Company shall have been
merged, or by the Person which shall have acquired such
property; and further provided that immediately after
giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have
happened and be continuing.
Section 8.2. Successor Corporation to Be Substituted.
In case of any such consolidation, merger,
transfer, conveyance or lease and upon the assumption by
the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to
the Trustee, of the due and punctual payment of the
principal of (and premium, if any) and interest, if any,
on all of the Securities and the due and punctual
performance of all of the covenants and conditions of
this Indenture to be performed by the Company, such
successor Person shall succeed to and be substituted for
the Company, with the same effect as if it had been named
herein as the Company, and thereafter, except in the case
of a lease, the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and
the Securities. Such successor Person thereupon may
cause to be signed, and may issue either in its own name
or in the name of Deposit Guaranty Corp. or in the name
of any corporation which previously shall have become the
Company in accordance with the provisions of this Article
any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such
successor Person instead of the Company and subject to
all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities
which such successor Person thereafter shall cause to be
signed and delivered to the Trustee for that purpose.
All of the Securities of a particular series so issued
shall in all respects have the same legal rank and
benefit under this Indenture as the Securities of such
with series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the
execution hereof.
Nothing contained in this Indenture or in any
of the Securities shall prevent the Company from merging
into itself any other Person or acquiring by purchase or
otherwise all or any part of the property of any other
Person, provided that, immediately after such merger or
acquisition, the Company shall not be in default in the
performance or observance of any of the terms, covenants
and conditions of this Indenture to be kept or performed
by it.
Section 8.3. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to Sections 6.1 and 6.3,
may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, transfer, conveyance
or lease and any such assumption complies with the
provisions of this Article.
ARTICLE IX
Supplemental Indentures
Section 9.1. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the
Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another
Person to the Company and the assumption by any
such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the
Company for the benefit of the Holders of all
or any series of Securities (and if such
covenants are to be for the benefit of less
than all series of Securities, stating that
such covenants are expressly being included
solely for the benefit of such series) or to
surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of
Default; or
(4) to add to or change any of the
provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the
issuance of Securities in bearer form,
registrable or not registrable as to principal,
and with or without interest coupons, or to
permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of
the provisions of this Indenture in respect of
one or more series of Securities, provided that
any such addition, change or elimination (i)
shall neither (A) apply to any Security of any
series created prior to the execution of such
supplemental indenture and entitled to the
benefit of such provision nor (B) modify the
rights of the Holder of any such Security with
respect to such provision or (ii) shall become
effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of
Securities of any series as permitted by
Sections 2.1 and 3.1; or
(8) to evidence and provide for the
acceptance of appointment hereunder by a
successor Trustee with respect to the
Securities of one or more series and to add to
or change any of the provisions of this
Indenture as shall be necessary to provide for
or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to
the requirements of Section 6.11(b); or
(9) to cure any ambiguity, to correct or
supplement any provision herein which may be
inconsistent with any other provision herein,
or to make any other provisions with respect to
matters or questions arising under this
Indenture, provided that such action pursuant
to this clause (9) shall not adversely affect
the interests of the Holders of Securities of
any series in any material respect.
Section 9.2. Supplemental Indentures with
Consent of Holders.
With the consent of the Holders of not less
than a majority in principal amount of the Outstanding
Securities of all series affected by such supplemental
indenture (voting as a single class), by Act of said
Holders delivered to the Company, and the Trustee, the
Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of
each such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the
principal of, or any instalment of principal of
or interest on, any Security, or reduce the
principal amount thereof or the rate of
interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount
Security that would be due and payable upon a
declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change any
Place of Payment where, or the coin or currency
in which, any Security or any premium or
interest thereon is payable or impair the right
to institute suit for the enforcement of any
such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any
series, the consent of whose Holders is
required for any such supplemental indenture,
or the consent of whose Holders is required for
any waiver (of compliance with certain
provisions of this Indenture or certain
defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this
Section, Section 5.13 or Section 10.08, except
to increase any such percentage or to provide
that certain other provisions of this Indenture
cannot be modified or waived without the
consent of the Holder of each Outstanding
Security affected thereby, provided, however,
that this clause shall not be deemed to require
the consent of any Holder with respect to
changes in the references to "the Trustee" and
concomitant changes in this Section and Section
10.08, or the deletion of this proviso, in
accordance with the requirements of Sections
6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
It shall not be necessary for any Act of
Holders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional
trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall
be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental
indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be
bound thereby.
Section 9.5. Conformity with Trust Indenture.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act.
Section 9.6. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and
delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of
such series.
ARTICLE X
Covenants
Section 10.1. Payment of Principal, Premium
and Interest.
The Company covenants and agrees for the
benefit of each series of Securities that it will duly
and punctually pay or cause to be paid the principal of
and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and
this Indenture. Interest on Securities shall be payable
without presentment of such Securities, and only to the
registered Holders thereof determined as provided in
Section 3.7. The Company shall have the right to require
a Holder, in connection with the payment of the principal
of and any premium and interest on a Security, to present
at the office or agency of the Company at which such
payment is made a certificate, in such form as the
Company may from time to time prescribe, to enable the
Company to determine its duties and liabilities with
respect to any taxes, assessments or governmental charges
which it may be required to deduct or withhold therefrom
under any present or future law of the United States of
America or of any State, County, Municipality or taxing
or withholding authority therein, and the Company shall
be entitled to determine its duties and liabilities with
respect to such deduction or withholding on the basis of
information contained in such certificate or, if no such
certificate shall be so presented, on the basis of any
presumption created by any such law, and shall be
entitled to act in accordance with such determination.
Section 10.2. Maintenance of Office or Agency.
So long as any Securities remain Outstanding,
the Company will maintain in each Place of Payment for
any series of Securities an office or agency where
Securities of that series may be presented or surrendered
for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in
respect of the Securities of that series and this
Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time
designate one or more other offices or agencies where the
Securities of one or more series may be presented or
surrendered for any or all such purposes and may from
time to time rescind such designations; provided,
however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the
location of any such other office or agency.
Section 10.3. Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Article VI, a Trustee, so that
there shall at all times be a Trustee hereunder.
Section 10.4. Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of or
any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more
Paying Agents for any series of Securities, it will,
prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for
any series of Securities other than the Trustee to
execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent
will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii)
during the continuance of any default by the Company (or
any other obligor upon the Securities of that series) in
the making of any payment in respect of the Securities of
that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the
Securities of that series.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of or any premium or
interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at
the expense of the Company cause to be published once, in
a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New
York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less
than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be
repaid to the Company.
Section 10.5. Statement by Officers as to Default.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officers' Certificate
(which need not comply with Section 1.2), stating whether
or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance
of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have
knowledge.
Section 10.6. Existence.
Subject to Article VIII, the Company will do or
cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights
(charter and statutory) and franchises to carry on its
business; provided, however, that nothing in this Section
10.6 shall prevent (i) any consolidation or merger of the
Company, or any conveyance, transfer or lease of its
property and assets substantially as an entirety,
permitted by Article VIII, or (ii) the liquidation or
dissolution of the Company after such conveyance or
transfer of its property and assets substantially as an
entirety permitted by Article VIII.
Section 10.7. Limitation on Disposition of Voting
Stock of, and Merger or Sale of Assets
by, Principal Subsidiaries.
So long as any of the Securities shall be
outstanding, but subject to the provisions of Article
VIII:
(a) The Company will not, and will not
permit any Subsidiary to, issue, sell, transfer,
assign, pledge or otherwise dispose of any shares of
Voting Stock of any class of any Principal
Subsidiary or any securities convertible or
exchangeable into or options, warrants or rights to
subscribe for or purchase shares of Voting Stock of
any class of such Principal Subsidiary, unless,
after giving effect to such transaction and to
shares issuable upon conversion or exchange of
outstanding securities convertible or exchangeable
into such Voting Stock or upon the exercise of
options, warrants or rights (including such
securities, if any, which may be the subject of such
transaction), at least 80% of the outstanding shares
of Voting Stock of each class of such Principal
Subsidiary shall be owned at that time directly or
indirectly by the Company, free of any lien; and
(b) The Company will not permit any
Principal Subsidiary to merge or consolidate or
convey or transfer all or substantially all of its
assets, unless at least 80% of the outstanding
shares of Voting Stock of each class (after giving
effect to such transaction and to shares issuable
upon conversion or exchange of outstanding
securities convertible or exchangeable into Voting
Stock or upon the exercise of options, warrants or
rights, including such securities, if any, which may
be issued in such transaction) of the surviving
corporation in the case of merger or consolidation
or of the transferee corporation in the case of a
conveyance or transfer, shall be owned at that time
directly or indirectly by the Company.
Notwithstanding the foregoing, any such
issuance, sale or disposition of shares or securities, or
any such merger or consolidation or conveyance or
transfer of assets shall not be prohibited if required
(a) by any law, regulation or order of any court or
governmental authority of competent jurisdiction or (b)
as a condition imposed by any law, regulation or order of
any court or governmental authority of competent
jurisdiction to the acquisition by the Company, directly
or indirectly, through purchase of stock or assets,
merger, consolidation or otherwise, of any other
corporation or entity, if, after giving effect to such
disposition and acquisition, (i) the Company would own,
directly or indirectly, more than 80% of the Voting Stock
of such other corporation or entity, and (ii) the
Consolidated Banking Assets of the Company would be at
least equal to the Consolidated Banking Assets of the
Company prior to such transaction. For purposes of this
Section 10.7, "Consolidated Banking Assets" means all
assets owned directly or indirectly by a Bank Subsidiary
and reflected on the Company's consolidated statement of
condition prepared in accordance with generally accepted
accounting principles.
Section 10.8. Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in Section 10.7 with respect to the Securities of any
series if before the time for such compliance the Holders
of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force
and effect.
ARTICLE XI
Redemption of Securities
Section 11.1. Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities
of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of
less than all the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
Section 11.3. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series
are to be redeemed (unless all of the Securities of such
series and of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions
(equal to the minimum authorized denomination for
Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum
authorized denomination for Securities of that series.
If less than all of the Securities of such series and of
a specified tenor are to be redeemed, the particular
Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance
with the preceding sentence.
The Trustee shall promptly notify the Company
in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
Any selection of Securities by the Trustee
under this Section and any related notice to the Company
to be given by the Trustee under this Section may be made
or given by the Security Registrar on behalf of the
Trustee.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given by first-
class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest,
if any,
(3) if less than all the Outstanding
Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption
Price and accrued interest, if any, will become due and
payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on
and after said date,
(5) the place or places where such Securities
are to be surrendered for payment of the Redemption Price
and accrued interest, if any, and
(6) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee
in the name and at the expense of the Company and shall
be irrevocable.
Section 11.5. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.4) an amount
of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date
(unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the
principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part.
Any Security which is to be redeemed only in
part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Security Registrar so
requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the
Company shall execute, and the Security Registrar shall
authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE XII
Sinking Funds
Section 12.1. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms
of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding
Securities of a series (other than any previously called
for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the
election of the Company pursuant to the terms of such
Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or
any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not
been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee or
the Security Registrar at the Redemption Price specified
in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 90 days prior to each sinking
fund payment date for any series of Securities, the
Company will deliver to the Trustee and the Security
Registrar an Officers' Certificate specifying the amount
of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that
series pursuant to Section 12.2 and the basis for such
credit and will also deliver to the Security Registrar
any Securities to be so delivered. Not less than 60 days
before each such sinking fund payment date the Trustee or
the Security Registrar shall select the Securities to be
redeemed upon such sinking fund payment date in the
manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
11.4. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in
the manner stated in Sections 11.5, 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1. Applicability of Article; Company's Option
to Effect Defeasance or Covenant
Defeasance.
If pursuant to Section 3.1 provision is made
for either or both of (a) defeasance of the Securities of
a series under Section 13.2 or (b) covenant defeasance of
the Securities of a series under Section 13.3, then the
provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article
XIII, shall be applicable to the Securities of such
series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities
of such series, elect to have either Section 13.2 (if
applicable) or Section 13.3 (if applicable) be applied to
the Outstanding Securities of such series upon compliance
with the conditions set forth below in this Article XIII.
Section 13.2. Defeasance and Discharge.
Upon the Company's exercise of the above option
applicable to this Section, the Company shall be deemed
to have been discharged from its obligations with respect
to the Outstanding Securities of such series on and after
the date the conditions precedent set forth below are
satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments
acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding
Securities of such series to receive, solely from the
trust fund described in Section 13.5 as more fully set
forth in such Section, payments of the principal of (and
premium, if any) and interest on such Securities when
such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 3.4, 3.5, 3.6,
10.2 and 10.4 and such obligations as shall be ancillary
thereto, (C) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Trustee
hereunder and (D) this Article XIII. Subject to
compliance with this Article XIII, the Company may
exercise its option under this Section 13.2
notwithstanding the prior exercise of its option under
Section 13.3 with respect to the Securities of such
series. Following a defeasance, payment of the
Securities of such series may not be accelerated because
of an Event of Default.
Section 13.3. Covenant Defeasance.
Upon the Company's exercise of the above option
applicable to this Section and after the date the
conditions set forth below are satisfied, the Company
shall be released from its obligations under Section 10.7
(and any covenant applicable to such Securities that are
determined pursuant to Section 3.1 to be subject to this
provision), and the occurrence of an event specified in
Section 5.1(d) (with respect to Section 10.7 and any
other Section applicable to such Securities that are
determined pursuant to Section 3.1 to be subject to this
provision) shall not be deemed to be an Event of Default
with respect to the Outstanding Securities of such series
(hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may
omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in
any such Section whether directly or indirectly by reason
of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any
other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be
unaffected thereby. Following a covenant defeasance,
payment of the Securities of such series may not be
accelerated because of an Event of Default specified in
Section 5.1(e) or Section 5.1(f) or by reference to such
Sections specified above in this Section 13.3
Section 13.4. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions precedent
to application of either Section 13.2 or Section 13.3 to
the Outstanding Securities of such series:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the
provisions of this Article XIII applicable to it) as
trust funds in trust for the purpose of making the
following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount,
or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in
respect thereof in accordance with their terms will
provide, not later than one day before the due date
of any payment, money in an amount, or (C) a
combination thereof, sufficient, without
reinvestment, in the opinion of a nationally
recognized firm of independent certified public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge,
the principal of (and premium, if any) and interest
on the Outstanding Securities of such series on the
Maturity of such principal, premium, if any, or
interest and any mandatory sinking fund payments or
analogous payments applicable to the Outstanding
Securities of such series on the due dates thereof.
Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates
in accordance with Article XI, which shall be given
effect in applying the foregoing. For this purpose,
"U.S. Government Obligations" means securities that
are (x) direct obligations of the United States of
America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency
or instrumentality of the United States of America
the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United
States of America, which, in either case, are not
callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such
custodian for the account of the holder of such
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 U.S.
Government Obligation or the specific payment of
principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with
notice or lapse of time or both would become an
Event of Default with respect to the Securities of
such series shall have occurred and be continuing
(A) on the date of such deposit or (B) insofar as
subsections 5.1(e) and (f) are concerned, at any
time during the period ending on the 91st day after
the date of such deposit or, if longer, ending on
the day following the expiration of the longest
preference period applicable to the Company in
respect of such deposit (it being understood that
the condition in this Clause (B) shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance
shall not (A) cause the Trustee for the Securities
of such series to have a conflicting interest as
defined in Section 6.8 or for purposes of the Trust
Indenture Act with respect to any securities of the
Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance
shall not result in a breach or violation of, or
constitute a default under, this Indenture or any
other agreement or instrument to which the Company
is a party or by which it is bound.
(5) Such defeasance or covenant defeasance
shall not cause any Securities of such series then
listed on any registered national securities
exchange under the Securities Exchange Act of 1934,
as amended, to be delisted.
(6) In the case of an election under Section
13.2, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been
published by, the Internal Revenue Service a ruling,
or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax
law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders
of the Outstanding Securities of such series will
not recognize income, gain or loss for Federal
income tax purposes as a result of such 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
had not occurred.
(7) In the case of an election under Section
13.3, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Federal
income tax purposes as a result of such 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
covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance
shall be effected in compliance with any additional
terms, conditions or limitations which may be
imposed on the Company in connection therewith
pursuant to Section 3.1.
(9) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
provided for relating to either the defeasance under
Section 13.2 or the covenant defeasance under
Section 13.3 (as the case may be) have been complied
with.
Section 13.5. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph
of Section 10.4, all money and U.S. Government
Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 13.5, the
"Trustee") pursuant to Section 13.4 in respect of the
Outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but
not including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest,
but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or
assessed against the money or U.S. Government Obligations
deposited pursuant to Section 13.4 or the principal and
interest received in respect thereof.
Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time
to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 13.4 which,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
Section 13.6. Reinstatement.
If the Trustee or the Paying Agent is unable to
apply any money in accordance with Section 13.5 by reason
of any order or judgment or any court or governmental
authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under
the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to
this Article XIII until such time as the Trustee or
Paying Agent is permitted to apply all such money in
accordance with Section 13.5; provided, however, that if
the Company makes any payment of principal of (and
premium, if any) or interest on any such Security
following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money
held by the Trustee or the Paying Agent.
This instrument may be executed in any number
of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DEPOSIT GUARANTY CORP.
By
Name:
Title:
Attest:
_____________________
Name:
Title:
SUNTRUST BANK, ATLANTA
By
Name:
Title:
By
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On the 26th day of April, 1996, before me
personally came , to me known, who,
being by me duly sworn, did depose and say that [s]he is
of Deposit Guaranty Corp., one of
the corporations described in and which executed the
foregoing instrument; that [s]he knows the seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was affixed by authority of
the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
STATE OF )
) ss.:
COUNTY OF )
On the 26th day of April, 1996, before me
personally came _______________ and ________________, to
me known, who, being by me duly sworn, did depose and say
that they are ___________ and _____________ of SunTrust
Bank, Atlanta respectively, one of the corporations
described in and which executed the foregoing instrument;
that they know the seal of said corporation; that the
seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of
Directors of said corporation, and that they signed their
names thereto by like authority.
DEPOSIT GUARANTY CORP.
Officers' Certificate Pursuant to
Section 3.1
We, E.B. Robinson, Jr. and Howard L. McMillan,
Jr., do hereby certify that we are Directors of Deposit
Guaranty Corp., a Mississippi business corporation (the
"Company") and members of the Pricing Committee of the
Company, and that we have been authorized to determine
the terms of any series of Senior debt securities to be
issued by the Company pursuant to the terms of a Senior
Indenture, dated as of April 26, 1996 (the "Indenture"),
between the Company and SunTrust Bank, Atlanta, as
Trustee, and in accordance with Section 3.1 of the
Indenture, we do hereby establish a single series of
Senior Debt Securities with the following terms. This
document shall constitute an Officers' Certificate for
purposes of Section 3.1 of the Indenture. Capitalized
terms used herein and not defined herein shall have the
meaning specified in the Indenture, and the numbered
clauses set forth below correspond to the number clauses
of Section 3.1 of the Indenture.
(1) the title of the Securities of the
series (which shall distinguish the Securities of
the series from Securities of any other series);
7 1/4% Senior Notes Due May 1, 2006 (the
"Notes")
(2) any limit upon the aggregate principal
amount of the Notes which may be authenticated and
delivered under the Indenture (except for Notes
authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Sections 3.4, 3.5, 3.6, 9.6
or 11.7 and except for any Notes which, pursuant to
Section 3.3, are deemed never to have been
authenticated and delivered under the Indenture);
$100,000,000.
(3) the person to whom any interest on a
Note shall be payable, if other than the Person in
whose name the Note (or one or more Predecessor
Securities) is registered at the close of business
on the Regular Record Date for such interest;
N/A.
(4) the date or dates on which the principal
of the Notes is payable;
May 1, 2006
(5) the rate or rates at which the Notes
shall bear interest, if any, the date or dates from
which such interest shall accrue, the Interest
Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
The Notes will bear Interest from April 26,
1996, payable semiannually in arrears on each May 1
and November 1. Interest shall be paid to the
person in whose name such Note is registered at the
close of business on April 15 or October 15, as the
case may be, preceding each interest payment. The
Notes will bear interest at a rate of 7 1/4% per
annum.
(6) the place or places where the principal
of and any premium and interest on the Notes shall
be payable;
Atlanta, Georgia
(7) the period or periods within which, the
price or prices at which and the terms and
conditions upon which the Notes may be redeemed, in
whole or in part, at the option of the Company;
The Notes are not redeemable prior to maturity.
(8) the obligation, if any, of the Company
to redeem or purchase Notes pursuant to any sinking
fund or analogous provisions or at the option of a
Holder thereof and the period or periods within
which, the price or prices at which and the terms
and conditions upon which the Notes shall be
redeemed or purchased, in whole or in part, pursuant
to such obligation;
The Notes do not provide for any sinking fund,
(9) if other than denominations of $1,000
and any integral multiple thereof, the denominations
in which the Notes shall be issuable;
N/A.
(10) the currency, currencies or currency
units in which payment of the principal of and any
premium and interest on any Notes shall be payable
if other than the currency of the United States of
America and the manner of determining the equivalent
thereof in the currency of the United States of
America for purposes of the definition of
"Outstanding" in Section 1.1 of the Indenture;
N/A.
(11) if the amount of payments of principal
of or any premium or interest on any Notes of the
series may be determined with reference to an index
or formula, the manner in which such amounts shall
be determined;
N/A.
(12) if the principal of or any premium or
interest on the Notes is to be payable, at the
election of the Company or a Holder thereof, in one
or more currencies or currency units other than that
or those in which the Notes are stated to be
payable, the currency, currencies or currency units
in which payment of the principal of and any premium
and interest on the Notes as to which such election
is made shall be payable, and the periods within
which and the terms and conditions upon which such
election is to be made;
N/A.
(13) if other than the principal amount
thereof, the portion of the principal amount of the
Notes which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to
section 5.2 of the Indenture;
The entire principal shall be payable.
(14) the application, if any, of either or
both of Section 13.2 and Section 13.3 of the
Indenture to the Notes;
Section 13.2 shall apply.
(15) whether the Notes shall be issuable in
whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global
Securities and any circumstances other than those
set forth in Section 3.5 of the Indenture in which
any such Global Security may be transferred to, and
registered and exchanged for Notes registered in the
name of, a person other than the Depositary for such
Global Security or a nominee thereof and in which
any such transfer may be registered;
The notes shall be issued in the form of one
permanent global certificate. Each global
certificate will be deposited with The Depository
Trust Company, New York, New York.
(16) if other than as specified in Section
5.1 of the Indenture, the Events of Default
applicable with respect to the Notes;
N/A.
(17) if other than as specified in Section
5.2 of the Indenture, the Events of Default the
occurrence of which would permit the declaration of
the acceleration of Maturity pursuant to Section
5.2;
N/A.
(18) any other covenant or warranty included
for the benefit of the Notes in addition to (and not
inconsistent with) those included in the Indenture
for the benefit of Securities of all series, or any
other covenant or warranty included in the Indenture
for the benefit of Securities of all series in lieu
of any covenant or warranty included in the
Indenture for the benefit of Securities of all
series, or any provision that any covenant or
warranty included in the Indenture for the benefit
of the Notes shall not be for the benefit of the
Notes, or any combination of such covenants,
warranties or provisions;
N/A.
(19) any other terms of the Notes (which
terms shall not be inconsistent with the provisions
of the Indenture, except as permitted by Section
9.1(5) thereunder).
N/A
IN WITNESS WHEREOF, we have hereunto set our
hands this 23rd day of April, 1996.
E.B. Robinson, Jr.
Director
Howard L. McMillan, Jr.
Director
Joe J. Powell, III
Treasurer
