<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 30, 1999
REGISTRATION NO. 33-59735
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------
REGIONS FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
---------------------
<TABLE>
<S> <C> <C>
DELAWARE 6711 63-0589368
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
417 NORTH 20TH STREET
BIRMINGHAM, AL 35203
(205) 326-7100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
---------------------
SAMUEL E. UPCHURCH, JR.
GENERAL COUNSEL AND
CORPORATE SECRETARY
REGIONS FINANCIAL CORPORATION
417 NORTH 20TH STREET
BIRMINGHAM, AL 35203
(205) 326-7860
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
---------------------
COPY TO:
CHARLES C. PINCKNEY
LANGE, SIMPSON, ROBINSON
& SOMERVILLE LLP
SUITE 1700
417 NORTH 20TH STREET
BIRMINGHAM, AL 35203
(205)250-5075
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective as the Registrant
may determine.
<PAGE> 2
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), SHALL
DETERMINE.
================================================================================
<PAGE> 3
SUBJECT TO COMPLETION, DATED ,
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1999)
$
(REGIONS LOGO)
REGIONS FINANCIAL CORPORATION
% Subordinated Notes Due
-------------------------
THE COMPANY
We are Regions Financial Corporation, a regional bank holding company
headquartered in Birmingham, Alabama. We offer a broad range of banking and
banking-related services. We will sometimes use the term Regions in this
document to refer to our company and our subsidiaries, collectively.
THE NOTES
- Interest will accrue from the date we issue the Notes and will be payable
on and of each year beginning , 1999.
- The Notes are subordinate to all our senior indebtedness, as more fully
described in the section of the Prospectus "Description of Subordinated
Debt Securities -- Subordination" on page .
- You can only accelerate payment of the Notes if we become insolvent,
bankrupt, or engage in certain types of reorganizations.
- You will not be able to accelerate payment of the Notes because we
default on a covenant in the indenture for the Notes.
- The Notes will be registered in the name of a nominee of the Depository
Trust Company, or DTC, and will be transferable only in accordance with
the book-entry procedures described in the accompanying Prospectus.
THE NOTES ARE NOT DEPOSITS, SAVINGS ACCOUNTS OR OTHER OBLIGATIONS OF A
DEPOSITORY INSTITUTION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
REGULATORS HAVE APPROVED THE NOTES OR DETERMINED IF THIS PROSPECTUS SUPPLEMENT
OR THE PROSPECTUS IS ACCURATE OR ADEQUATE. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) COMPANY(1)(3)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Note......................... 100% % %
- ------------------------------------------------------------------------------------------------------------
Total............................ $ $ $
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus accrued interest, if any, from , 1999, to date of
delivery.
(2) We have agreed to indemnify the Underwriters against certain liabilities,
including liabilities under the Securities Act of 1933, as amended. See
"Underwriting."
(3) Before deducting expenses payable by Regions, estimated at $ .
-------------------------
The Notes are offered by the several underwriters subject to prior sale
when, as and if delivered to and accepted by the Underwriters and subject to
certain other conditions. The underwriters reserve the right to withdraw, cancel
or modify such offer and to reject orders in whole or in part. It is expected
that the Notes will be delivered in book-entry form only, on or about
, 1999, through the facilities of DTC.
-------------------------
, 1999.
INFORMATION INCLUDED HEREIN IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL
THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION BECOMES EFFECTIVE. THIS PROSPECTUS SUPPLEMENT AND PROSPECTUS
IS NOT AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER IS NOT PERMITTED.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
The Company......................... S-1
Use of Proceeds..................... S-1
Selected Consolidated Financial
Data.............................. S-2
Description of the Notes............ S-4
Capitalization...................... S-6
Underwriting........................ S-6
Legal Matters....................... S-7
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS
Where You Can Find More
Information....................... 2
Forward Looking Statements.......... 3
The Company......................... 3
Use of Proceeds..................... 4
Supervision and Regulation.......... 4
Description of Subordinated Debt
Securities........................ 9
Plan of Distribution................ 17
Experts............................. 18
Legal Opinions...................... 19
</TABLE>
THE COMPANY
We are a regional bank holding company organized and existing under the
laws of the state of Delaware and headquartered in Birmingham, Alabama, with
approximately 731 banking offices located in Alabama, Arkansas, Florida,
Georgia, Louisiana, South Carolina, Tennessee, and Texas as of June 30, 1999. At
that date, we had total consolidated assets of approximately $39.8 billion,
total consolidated deposits of approximately $28.4 billion, and total
consolidated stockholders' equity of approximately $3.1 billion. We have
banking-related subsidiaries engaged in mortgage banking, credit life insurance,
leasing, and securities brokerage activities with offices in various
Southeastern states. Through our subsidiaries, we offer a broad range of banking
and banking-related services.
USE OF PROCEEDS
The net proceeds from the sale of the Notes will be approximately
$ , after deducting the underwriting discount and estimated offering
expenses. Such net proceeds will be used for general corporate purposes.
S-1
<PAGE> 5
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data as of and for the five
years ended December 31, 1998, are derived from our consolidated financial
statements which have been audited by Ernst & Young LLP, independent auditors.
The financial data as of and for the six months ended June 30, 1999 and 1998,
are derived from unaudited consolidated financial statements. The unaudited
consolidated financial statements include all adjustments, consisting of normal
recurring accruals, that we consider necessary for a fair presentation of our
financial position and the results of our operations as of such dates and for
such periods. Results for the six months ended June 30, 1999 and 1998, are not
necessarily indicative of the results which might be expected for any other
interim period or for the year as a whole. The data should be read in
conjunction with the consolidated financial statements, related notes and other
financial information incorporated by reference. See "Where You Can Find More
Information" in the accompanying Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------------- ---------------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- ----------- ----------- -----------
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RATIOS)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Total interest income........ $ 1,385,618 $ 1,275,200 $ 2,597,786 $ 2,276,584 $ 1,954,283 $ 1,750,427 $ 1,385,512
Total interest expense....... 659,714 616,729 1,272,968 1,097,376 942,459 861,242 598,160
Net interest income.......... 725,904 658,471 1,324,818 1,179,208 1,011,824 889,185 787,352
Provision for loan losses.... 44,682 28,935 60,505 89,663 46,026 37,493 22,058
Net interest income after
loan loss provision......... 681,222 629,536 1,264,313 1,089,545 965,798 851,692 765,294
Total noninterest income
before security gains
(losses).................... 264,868 226,658 467,695 406,484 341,792 280,834 251,837
Security gains (losses)...... 38 3,042 7,002 498 3,311 (697) 681
Total noninterest expense.... 522,799 490,519 1,103,708 901,776 837,034 720,825 653,506
Income tax expense........... 144,809 125,296 213,590 197,222 156,008 134,529 115,853
Net income................... 278,520 243,421 421,712 397,529 317,859 276,475 248,453
PER SHARE DATA:
Net income................... $ 1.25 $ 1.11 $ 1.92 $ 1.89 $ 1.64 $ 1.45 $ 1.36
Net income -- diluted........ 1.23 1.09 1.88 1.86 1.61 1.43 1.34
Cash dividends............... .50 .46 .92 .80 .70 .66 .60
Book value................... 14.04 13.27 13.61 12.75 11.82 10.74 9.58
OTHER INFORMATION:
Average number of shares
outstanding................. 223,206 219,921 220,114 209,781 194,241 190,896 182,903
Average number of shares
outstanding -- diluted...... 226,181 224,039 223,781 213,750 197,751 193,579 185,110
STATEMENT OF CONDITION DATA
(PERIOD END):
Total assets................. $39,807,622 $34,726,819 $36,831,940 $31,414,058 $26,993,344 $24,419,249 $22,184,508
Securities................... 8,840,406 7,232,189 7,969,137 6,315,923 5,742,375 5,618,839 5,143,226
Loans, net of unearned
income...................... 26,552,685 23,658,297 24,365,587 21,881,123 18,395,552 16,156,312 14,726,649
Total deposits............... 28,427,211 27,252,022 28,350,066 25,011,021 22,019,412 19,982,533 18,048,906
Long-term debt............... 388,377 421,665 571,040 445,529 570,545 762,521 766,774
Stockholders' equity......... 3,144,592 2,927,012 3,000,401 2,679,821 2,274,563 2,047,398 1,785,026
PERFORMANCE RATIOS:
Return on average
assets(1)................... 1.47% 1.47% 1.24%(a) 1.35% 1.25%(b) 1.19% 1.23%
Return on average
stockholders' equity(1)..... 18.12 17.15 14.62(a) 15.38 14.71(b) 14.30 14.88
Net interest margin(1)....... 4.21 4.38 4.25 4.41 4.36 4.27 4.33
Efficiency(2)................ 52.18 54.67 60.82(a) 57.78 61.84(b) 61.61 62.89
Dividend payout.............. 40.00 41.44 47.92 42.33 42.68 45.52 44.12
EARNINGS TO FIXED CHARGES(3):
Excluding interest on
deposits.................... 3.82x 5.10x 3.96x 5.03x 4.95x 4.29x 5.56x
Including interest on
deposits.................... 1.64 1.59 1.50 1.54 1.50 1.48 1.61
</TABLE>
S-2
<PAGE> 6
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------------- ---------------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- ----------- ----------- -----------
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RATIOS)
<S> <C> <C> <C> <C> <C> <C> <C>
ASSET QUALITY RATIOS:
Net charge-offs to average
loans, net of unearned
income(1)................... .31% .21% .28% .27% .18% .15% .18%
Problem assets to net loans
and other real estate(4).... .67 .82 .60 .78 .63 .69 .91
Nonperforming assets to net
loans and other real
estate(5)................... 1.05 .99 1.15 .91 .83 .81 .98
Allowance for loan losses to
loans, net of unearned
income...................... 1.23 1.40 1.29 1.39 1.38 1.43 1.41
Allowance for loan losses to
nonperforming assets(5)..... 117.42 140.78 112.27 151.89 166.41 177.53 144.04
LIQUIDITY AND CAPITAL RATIOS:
Average stockholders' equity
to average assets........... 8.12% 8.58% 8.47% 8.75% 8.50% 8.36% 8.23%
Average loans to average
deposits.................... 88.71 85.73 86.93 84.94 82.42 82.23 75.90
Tier 1 risk-based
capital(6).................. 10.78 10.46 10.26 10.48 10.81 11.14 10.69
Total risk-based
capital(6).................. 12.70 12.71 12.17 12.93 13.59 14.61 14.29
Tier 1 leverage(6)........... 7.21 7.63 7.40 7.52 7.44 7.49 8.21
</TABLE>
- -------------------------
(1) Interim period ratios are annualized.
(2) Noninterest expense divided by the sum of net interest income
(taxable-equivalent basis) and noninterest income net of gains (losses) from
security transactions.
(3) Earnings represent net income plus applicable income taxes and fixed
charges. Fixed charges represent interest expense (exclusive of interest on
deposits in one case and inclusive of such interest in the other), and
one-third (the amount deemed to represent an appropriate interest factor) of
net rent expense under all lease commitments.
(4) Problem assets include loans on a nonaccrual basis, restructured loans, and
foreclosed properties.
(5) Nonperforming assets include loans on a nonaccrual basis, restructured
loans, loans 90 days or more past due, and foreclosed properties.
(6) The required minimum Tier 1 and total capital ratios are 4% and 8%,
respectively. The minimum leverage ratio of Tier 1 capital to total assets
is 3% to 5%. The ratios for prior periods have not been restated to reflect
the combinations with First National Bancorp and First Commercial
Corporation, accounted for as poolings of interests, or any other
pooling-of-interests transactions.
(a) Ratios for 1998 excluding $80.7 million (after tax) for nonrecurring merger
and consolidation charges are as follows: Return on average
assets -- 1.48%, Return on average stockholders' equity -- 17.42%, and
Efficiency -- 54.13%.
(b) Ratios for 1996 excluding $20.2 million (after-tax) charge for SAIF
assessment and merger expenses are as follows: Return on average
assets -- 1.33%, Return on average stockholders' equity -- 15.64%, and
Efficiency -- 60.93%.
S-3
<PAGE> 7
DESCRIPTION OF THE NOTES
The following description of the particular terms of the Notes supplements
and modifies the description of the general terms and provisions of the Notes
(which are referred to in the accompanying Prospectus as the "Subordinated Debt
Securities") set forth in the accompanying Prospectus under the section
"Description of Subordinated Debt Securities." You should refer to that section
for more information.
GENERAL
We will issue the Notes under the indenture (the "Indenture"), dated as of
December 1, 1992, between Regions and Bankers Trust Company, as trustee (the
"Trustee"). The Notes will bear interest at % per annum and be limited to
$ in aggregate principal amount. Interest on the Notes will accrue from
, 1999, or from the most recent Interest Payment Date to which
interest has been paid or provided for, payable semi-annually on
and of each year commencing , 1999, to the person
in whose name the Note is registered at the close of business on the next
preceding or (whether or not a Business Day), as
the case may be. Principal of and interest on the Notes will be payable, and the
transfer of Notes will be registrable, through DTC as described below under
"-- Book-Entry Procedures" on page . The Notes will be sold in
denominations of $1,000 and in multiples thereof. We will not be able to redeem
the Notes in whole or in part, prior to their final stated maturity. The Notes
do not provide for any sinking fund. The Notes will mature on .
The Notes are subordinate to all Senior Indebtedness of Regions as
described in the accompanying Prospectus under "Description of Subordinated Debt
Securities -- Subordination," on page , generally including (with certain
exceptions) all of our other indebtedness and other obligations to our
creditors. The Indenture does not limit or prohibit the incurrence of additional
Senior Indebtedness.
As of June 30, 1999, and excluding $200 million in existing subordinated
indebtedness, we had an aggregate of approximately $7.6 billion in borrowed
funds outstanding, approximately $188 million of which represented long-term
debt and $7.4 billion of which represented short-term borrowings, including $3.9
billion of federal funds purchased and securities sold subject to agreements to
repurchase, all of which is included in the definition of "Senior Indebtedness."
Senior Indebtedness also includes other liabilities, such as accounts payable.
Because of the inclusion of short-term components, the amount of Senior
Indebtedness outstanding is subject to significant fluctuation over even short
periods of time.
S-4
<PAGE> 8
Also as of the date of this Prospectus Supplement, we had outstanding
subordinated indebtedness as follows:
- $75 million of unsecured subordinated indebtedness designated 7.80%
Subordinated Notes Due 2002 (the "7.80% Subordinated Notes")
- $25 million of unsecured subordinated indebtedness designated 7.65%
Subordinated Notes Due 2001 (the "7.65% Subordinated Notes")
- $100 million of unsecured subordinated indebtedness designated 7 3/4%
Subordinated Notes Due 2024 (the "7 3/4% Subordinated Notes")
The 7.80% Subordinated Notes, the 7.65% Subordinated Notes and the 7 3/4%
Subordinated Notes were issued under the Indenture. The Notes will rank
equivalent in priority with such previously issued subordinated indebtedness.
Payment of the principal of the Notes may be accelerated only in the case
of certain events involving bankruptcy, insolvency proceedings or reorganization
of Regions. You will not have any right of acceleration in the case of a default
in the payment of principal of or interest on the Notes or in the performance of
any other covenant of Regions in the Indenture. See "Description of Subordinated
Debt Securities -- Defaults and Limited Rights of Acceleration" on page in
the accompanying Prospectus.
BOOK-ENTRY PROCEDURES
If so stated on the cover page of this Prospectus Supplement, the Notes
will be registered in the name of DTC or its nominee and any beneficial interest
in the Notes must be held by purchasers, and will be subsequently transferable,
in book-entry form only. For a description of the applicable book-entry
procedures, see the discussion on page of the accompanying Prospectus under
the caption "Book-Entry Procedures."
The Notes in registered form will be deposited with DTC as depositary, or
with the Trustee as custodian for DTC on behalf of DTC, and registered in the
name of DTC or its nominee.
The Indenture provides that Regions may designate a successor depositary
under certain circumstances. In that event Regions anticipates that such
successor depositary would implement record-keeping and clearing procedures
comparable to the book-entry procedures of DTC.
S-5
<PAGE> 9
CAPITALIZATION
The following table sets forth our consolidated capitalization at June 30,
1999, and as adjusted as of such date to give effect to the sale of the Notes
offered hereby.
<TABLE>
<CAPTION>
AT JUNE 30, 1999
-------------------------
AS ADJUSTED
FOR OFFERING
AND OTHER
ACTUAL ISSUANCES
---------- ------------
(IN THOUSANDS)
<S> <C> <C>
LONG-TERM DEBT:
Federal Home Loan Bank notes............................ $ 146,921 $ 146,921
Other notes payable..................................... 41,456 41,456
7.80% subordinated notes due 2002....................... 75,000 75,000
7.65% subordinated notes due 2001....................... 25,000 25,000
7 3/4% subordinated notes due 2024...................... 100,000 100,000
% subordinated notes due........................... -- 200,000
---------- ----------
Total long-term debt.................................. 388,377 588,377
STOCKHOLDERS' EQUITY:
Common stock, $.625 par value; authorized 500,000,000
shares; issued (including treasury stock) 224,018,774
shares................................................ 140,012 140,012
Surplus................................................. 1,167,994 1,167,994
Undivided profits....................................... 1,906,929 1,906,929
Less treasury stock at cost -- 888 shares............... (34) (34)
Less unearned restricted stock.......................... (5,765) (5,765)
Accumulated other comprehensive income.................. (64,544) (64,544)
---------- ----------
Total stockholders' equity............................ 3,144,592 3,144,592
---------- ----------
Total long-term debt and stockholders' equity......... $3,532,969 $3,732,969
========== ==========
</TABLE>
UNDERWRITING
Under the terms and subject to the conditions contained in an underwriting
agreement dated 1999, the underwriters named below have severally
but not jointly agreed to purchase from Regions the following respective
principal amounts of the Notes:
<TABLE>
<CAPTION>
UNDERWRITERS PRINCIPAL AMOUNT
- ------------ ----------------
<S> <C>
$
--------
Total..................................................... $
========
</TABLE>
The underwriting agreement provides that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters will be obligated to purchase all of the Notes if any are
purchased. The underwriting agreement provides that, in the event of a default
by an underwriter, in certain circumstances the purchase
S-6
<PAGE> 10
commitments of non-defaulting underwriters may be increased or the underwriting
agreement may be terminated.
We have been advised by the underwriters that they propose to offer the
Notes to the public initially at the public offering price set forth on the
cover page of this Prospectus Supplement and to certain dealers at such price
less a concession of % of the principal amount per Note; that the
underwriters and such dealers may allow a discount of % of such principal
amount per Note on sales to certain other dealers; and that after the initial
public offering, the public offering price and concession and discount to
dealers may be changed by the underwriters.
The Notes are a new issue of securities with no established trading market.
The underwriters have advised Regions that one or more of them intend to act as
market makers for the Notes. However, the underwriters are not obligated to do
so and may discontinue any market making at any time without notice. We cannot
assure you that there will be a liquid trading market for the Notes.
We have agreed to indemnify the several underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended,
or contribute to payments which the underwriters may be required to make in
respect thereof.
The underwriters and their affiliates may be customers of, engage in
transactions with, and perform services for Regions in the ordinary course of
business.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES OFFERED
HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
LEGAL MATTERS
Certain legal matters will be passed upon for the underwriters by
. From time to time, provides, and may in the
future continue to provide, legal services to Regions and its subsidiaries.
S-7
<PAGE> 11
PROSPECTUS
REGIONS FINANCIAL CORPORATION
SUBORDINATED DEBT SECURITIES
-------------------------
We are offering up to $200,000,000 of our subordinated debt securities
under this Prospectus and a Prospectus Supplement. The securities being offered
are referred to as "Subordinated Debt Securities" and may consist of our
unsecured subordinated notes, debentures, bonds or other evidences of
indebtedness. We tell you about the Subordinated Debt Securities in two separate
documents that progressively provide more detail: (1) this Prospectus, which
provides general information, some of which may not apply to a particular series
of Subordinated Debt Securities, including your series; and (2) the Prospectus
Supplement related to the particular terms of your series of Subordinated Debt
Securities.
We will determine the amounts, prices, and other terms of the Subordinated
Debt Securities at the time of sale. We will provide specific information about
the amount, price, and terms of the Subordinated Debt Securities in the
Prospectus Supplement. You should refer to both this Prospectus and the
Prospectus Supplement for important information. You should not rely on this
Prospectus unless it is accompanied by the Prospectus Supplement.
If the terms of your series of Subordinated Debt Securities described in
the Prospectus Supplement vary from this Prospectus, you should rely on the
information in your Prospectus Supplement.
The Subordinated Debt Securities will be subordinated in right of payment
to all senior indebtedness of Regions. Our senior indebtedness includes all
monetary obligations we owe that is not expressly subordinated.
We may sell the Subordinated Debt Securities through underwriters or
dealers we will designate at the time of sale, or through agents we may
designate from time to time, or we may sell the Subordinated Debt Securities
directly. We will provide in the Prospectus Supplement the names of any
underwriters or agents involved in the sale of the Subordinated Debt Securities,
and any applicable commissions or discounts, and the net proceeds to Regions
from such sale.
You should rely only on the information contained in this document or
information to which we have referred you. We have not authorized anyone to
provide you with information that is different. This document may only be used
where it is legal to sell these securities. The information in this document may
only be accurate on the date of this document.
THE SUBORDINATED DEBT SECURITIES ARE NOT DEPOSITS, SAVINGS ACCOUNTS OR OTHER
OBLIGATIONS OF A DEPOSITORY INSTITUTION AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
REGULATORS HAVE APPROVED THE SUBORDINATED DEBT SECURITIES OR DETERMINED IF THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT IS ACCURATE OR ADEQUATE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1999.
<PAGE> 12
WHERE YOU CAN FIND MORE INFORMATION
Regions files annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any reports, statements or
other information that Regions files with the SEC at the SEC's public reference
rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
These filings are also available at the Internet world wide web site maintained
by the SEC at "http://www.sec.gov."
Regions filed a Registration Statement on Form S-3 (the "Registration
Statement") to register with the SEC the subordinated debt securities being
offered by means of this Prospectus. This Prospectus is a part of that
Registration Statement. As allowed by SEC rules, this Prospectus does not
contain all the information you can find in Regions' Registration Statement or
the exhibits to that Registration Statement.
SEC regulations allow Regions to "incorporate by reference" information
into this Prospectus, which means that Regions can disclose important
information to you by referring you to another document filed separately with
the SEC. The information incorporated by reference is considered part of this
Prospectus, except for any information superseded by information contained
directly in this Prospectus or in later filed documents incorporated by
reference in this Prospectus.
This Prospectus incorporates by reference the documents set forth below
that Regions has previously filed with the SEC. These documents contain
important information about Regions and its finances. Some of these filings have
been amended by later filings, which are also listed.
<TABLE>
<CAPTION>
REGIONS SEC FILINGS (FILE NO. 0-6159) PERIOD/AS OF DATE
- -------------------------------------- --------------------------------------
<S> <C>
Annual Report on Form 10-K............ Year ended December 31, 1998
Quarterly Reports on Form 10-Q........ Three months ended March 31 and June
30, 1999
</TABLE>
Regions also incorporates by reference additional documents that may be
filed with the SEC between the date of this Prospectus and the offering and sale
of the Subordinated Debt Securities being offered by means of this Prospectus.
These include periodic reports, such as Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements.
You can obtain any of the documents incorporated by reference through
Regions, the SEC or the SEC's Internet web site as described above.
Documents incorporated by reference are available from Regions without
charge, excluding all exhibits, except that if Regions has specifically
incorporated by reference an exhibit in this Prospectus, the exhibit will also
be available without charge. You may obtain documents incorporated by reference
in this Prospectus by requesting them in writing or by telephone from Regions at
the following address:
Regions Financial Corporation
417 North 20th Street
Birmingham, AL 35203
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<PAGE> 13
Attention: Investor Relations
Telephone: (205) 326-7090
You should rely only on the information contained or incorporated by
reference in this Prospectus and the Prospectus Supplement. We have not
authorized anyone to provide you with information that is different from what is
contained in this Prospectus. This Prospectus is dated , 1999. You
should not assume that the information contained in this Prospectus is accurate
as of any date other than that date. Neither the delivery of this Prospectus nor
the issuance of Subordinated Debt Securities offered by means of this Prospectus
creates any implication to the contrary.
FORWARD LOOKING STATEMENTS
Our Annual Report on Form 10-K and our other periodic reports incorporated
herein by reference may include forward looking statements which reflect our
current views with respect to future events and financial performance. Such
forward looking statements are based on general assumptions and are subject to
various risks, uncertainties, and other factors that may cause actual results to
differ materially from the views, beliefs, and projections expressed in such
statements. Most of the risks and uncertainties concerning future events are not
unique to Regions. Risks and uncertainties that apply specially to Regions
include the following:
- We may not be able to achieve the earnings expectations related to the
operations of the companies we have recently acquired because of
inaccuracies in our assumptions about (1) cost savings, (2) revenue
enhancements, (3) our ability to assimilate corporate philosophy and
procedures of acquired companies, particularly in the areas of credit
quality and efficiency of operations, (4) economic growth patterns of
geographical areas into which we have expanded, and (5) our assessment of
acquired companies' credit quality and contingent liabilities.
- The cost and other effects of litigation and other contingent liabilities
may be greater than we project.
The words "believe", "expect", "anticipate", "project", and similar
expressions signify forward looking statements. You should not place undue
reliance on any of our forward looking statements. A further discussion about
forward looking statements is included in our Annual Report on Form 10-K,
incorporated by reference.
THE COMPANY
Regions is a regional bank holding company organized and existing under the
laws of the state of Delaware and headquartered in Birmingham, Alabama, with
approximately 731 banking offices located in Alabama, Arkansas, Florida,
Georgia, Louisiana, South Carolina, Tennessee, and Texas as of June 30, 1999. At
that date, Regions had total consolidated assets of approximately $39.8 billion,
total consolidated deposits of approximately $28.4 billion, and total
consolidated stockholders' equity of approximately $3.1 billion. Regions has
banking-related subsidiaries engaged in mortgage banking, credit life insurance,
leasing, and securities brokerage activities with offices in various
Southeastern states. Through its subsidiaries, Regions offers a broad range of
banking and banking-related services.
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<PAGE> 14
Regions was organized under the laws of the state of Delaware and commenced
operations in 1971 under the name First Alabama Bancshares, Inc. In 1994, the
name of First Alabama Bancshares, Inc. was changed to Regions Financial
Corporation. Regions' principal executive offices are located at 417 North 20th
Street, Birmingham, Alabama 35203, and its telephone number at such address is
(205) 326-7100.
Regions continually evaluates business combination opportunities and
frequently conducts due diligence activities in connection with possible
business combinations. As a result, business combination discussions and, in
some cases, negotiations frequently take place, and future business combinations
involving cash, debt, or equity securities can be expected. Any future business
combination or series of business combinations that Regions might undertake may
be material, in terms of assets acquired or liabilities assumed, to Regions'
financial condition. Recent business combinations in the banking industry have
typically involved the payment of a premium over book and market values. This
practice could result in dilution of book value and net income per share for the
acquirer.
Additional information about Regions and its subsidiaries is included in
documents incorporated by reference in this Prospectus. See "Where You Can Find
More Information."
USE OF PROCEEDS
The net proceeds from the sale of the Subordinated Debt Securities will be
used for general corporate purposes, including Regions' working capital needs,
acquisitions of other financial institutions or their assets, acquisitions of
other businesses of a type eligible for bank holding companies and reduction or
repayment of outstanding indebtedness. Pending such uses, Regions may
temporarily invest such proceeds. If Regions elects at the time of issuance of
the Subordinated Debt Securities to make definite or more specific use of
proceeds other than as set forth herein, such use of proceeds will be described
in the corresponding Prospectus Supplement.
SUPERVISION AND REGULATION
The following discussion sets forth certain of the material elements of the
regulatory framework applicable to banks and bank holding companies and provides
certain specific information related to Regions. Additional information is
available in Regions' Annual Report on Form 10-K for the fiscal year ended
December 31, 1998. See "Where You Can Find More Information."
GENERAL
Regions is a bank holding company, registered with the Board of Governors
of the Federal Reserve Board System (the "Federal Reserve") under the Bank
Holding Company Act of 1956, as amended. As such, Regions and its non-bank
subsidiaries are subject to the supervision, examination, and reporting
requirements of the Bank Holding Company Act and the regulations of the Federal
Reserve.
The Bank Holding Company Act requires every bank holding company to obtain
the prior approval of the Federal Reserve before: (1) it may acquire direct or
indirect ownership or control of any voting shares of any bank if, after such
acquisition, the bank
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<PAGE> 15
holding company will directly or indirectly own or control more than 5.0% of the
voting shares of the bank; (2) it or any of its subsidiaries, other than a bank,
may acquire all or substantially all of the assets of any bank; or (3) it may
merge or consolidate with any other bank holding company.
The Bank Holding Company Act further provides that the Federal Reserve may
not approve any transaction that would result in a monopoly or would be in
furtherance of any combination or conspiracy to monopolize or attempt to
monopolize the business of banking in any section of the United States, or the
effect of which may be substantially to lessen competition or to tend to create
a monopoly in any section of the country, or that in any other manner would be
in restraint of trade, unless the anticompetitive effects of the proposed
transaction are clearly outweighed by the public interest in meeting the
convenience and needs of the community to be served. The Federal Reserve is also
required to consider the financial and managerial resources and future prospects
of the bank holding companies and banks concerned and the convenience and needs
of the community to be served.
The Bank Holding Company Act generally prohibits Regions from engaging in
activities other than banking or managing or controlling banks or other
permissible subsidiaries and from acquiring or retaining direct or indirect
control of any company engaged in any activities other than those activities
determined by the Federal Reserve to be so closely related to banking or
managing or controlling banks as to be a proper incident thereto. In determining
whether a particular activity is permissible, the Federal Reserve must consider
whether the performance of such an activity reasonably can be expected to
produce benefits to the public, such as greater convenience, increased
competition, or gains in efficiency, that outweigh possible adverse effects,
such as undue concentration of resources, decreased or unfair competition,
conflicts of interest, or unsound banking practices. Each of Regions' subsidiary
banks is a member of the Federal Deposit Insurance Corporation (the "FDIC"), and
as such, its deposits are insured by the FDIC to the extent provided by law.
Each subsidiary bank is also subject to numerous state and federal statutes and
regulations that affect its business, activities, and operations, and each is
supervised and examined by one or more state or federal bank regulatory
agencies.
All of Regions' subsidiary banks that are state-chartered banks are subject
to supervision and examination by the FDIC and the state banking authorities of
the states in which they are located. The subsidiary banks that are nationally
chartered are subject to regulation, supervision, and examination by the OCC and
the FDIC. The federal banking regulator for each of the subsidiary banks, as
well as the appropriate state banking authority for each of the subsidiary banks
that is a state chartered bank, regularly examines the operations of the
subsidiary banks and is given authority to approve or disapprove mergers,
consolidations, the establishment of branches, and similar corporate actions.
The federal and state banking regulators also have the power to prevent the
continuance or development of unsafe or unsound banking practices or other
violations of law.
PAYMENT OF DIVIDENDS
Regions is a legal entity separate and distinct from its banking and other
subsidiaries. The principal sources of cash flow of Regions, including cash flow
to pay dividends to its stockholders, are dividends from its subsidiary banks.
There are statutory and regulatory
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<PAGE> 16
limitations on the payment of dividends by Regions' subsidiary banks to Regions
as well as by Regions to its stockholders.
As to the payment of dividends, all of Regions' subsidiary banks that are
state banks are subject to the respective laws and regulations of the state in
which the bank is located, and to the regulations of the FDIC.
If, in the opinion of a federal regulatory agency, an institution under its
jurisdiction is engaged in or is about to engage in an unsafe or unsound
practice (which, depending on the financial condition of the institution, could
include the payment of dividends), such agency may require, after notice and
hearing, that such institution cease and desist from such practice. The federal
banking agencies have indicated that paying dividends that deplete an
institution's capital base to an inadequate level would be an unsafe and unsound
banking practice. Under current federal law, an insured institution may not pay
any dividend if payment would cause it to become undercapitalized or if it
already is undercapitalized. See "-- Prompt Corrective Action." Moreover, the
Federal Reserve and the FDIC have issued policy statements which provide that
bank holding companies and insured banks should generally pay dividends only out
of current operating earnings.
At June 30, 1999, under dividend restrictions imposed under federal and
state laws, Regions' subsidiary banks, without obtaining governmental approvals,
could declare aggregate dividends to Regions of approximately $340 million.
The payment of dividends by Regions and its subsidiary banks may also be
affected or limited by other factors, such as the requirement to maintain
adequate capital above regulatory guidelines.
CAPITAL ADEQUACY
Regions and its subsidiary banks are required to comply with the capital
adequacy standards established by the Federal Reserve in the case of Regions and
the FDIC and the OCC in the case of the subsidiary banks. There are two basic
measures of capital adequacy for bank holding companies that have been
promulgated by the Federal Reserve: a risk-based measure and a leverage measure.
All applicable capital standards must be satisfied for a bank holding company to
be considered in compliance.
The risk-based capital standards are designed to make regulatory capital
requirements more sensitive to differences in risk profile among banks and bank
holding companies, to account for off-balance-sheet exposure, and to minimize
disincentives for holding liquid assets. Assets and off-balance sheet items are
assigned to broad risk categories, each with appropriate weights. The resulting
capital ratios represent capital as a percentage of total risk-weighted assets
and off-balance sheet items.
The minimum guideline for the ratio of total capital ("Total Capital") to
risk-weighted assets (including certain off-balance-sheet items, such as standby
letters of credit) is 8.0%. At least half of the Total Capital must be composed
of common equity, undivided profits, minority interests in the equity accounts
of consolidated subsidiaries, qualifying noncumulative perpetual preferred
stock, and a limited amount of cumulative perpetual preferred stock, less
goodwill and certain other intangible assets ("Tier 1 Capital"). The remainder
may consist of certain subordinated debt, other preferred stock, and a limited
amount of loan loss reserves. The minimum guideline for Tier 1 Capital is 4.0%.
At June 30, 1999, Regions' consolidated Tier 1 Capital ratio was 10.78% and its
Total Capital ratio was 12.70%.
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<PAGE> 17
In addition, the Federal Reserve has established minimum leverage ratio
guidelines for bank holding companies. These guidelines provide for a minimum
ratio of Tier 1 Capital to average assets, less goodwill and certain other
intangible assets (the "Leverage Ratio"), of 3.0% for bank holding companies
that meet certain specified criteria, including having the highest regulatory
rating. All other bank holding companies generally are required to maintain a
Leverage Ratio of at least 3.0%, plus an additional cushion of 100 to 200 basis
points above the stated minimums. The guidelines also provide that bank holding
companies experiencing internal growth or making acquisitions will be expected
to maintain strong capital positions substantially above the minimum supervisory
levels without significant reliance on intangible assets. Furthermore, the
Federal Reserve has indicated that it will consider a "tangible Tier 1 Capital
leverage ratio" (deducting all intangibles) and other indicators of capital
strength in evaluating proposals for expansion or new activities. At June 30,
1999 Regions' Leverage Ratio was 7.21%.
Each of Regions' subsidiary banks is subject to risk-based and leverage
capital requirements adopted by the FDIC or the OCC, which are substantially
similar to those adopted by the Federal Reserve. Each of Regions' subsidiary
banks was in compliance with applicable minimum capital requirements as of June
30, 1999. Neither Regions nor any of its subsidiary banks has been advised by
any federal banking agency of any specific minimum capital ratio requirement
applicable to it.
Failure to meet capital guidelines could subject a bank to a variety of
enforcement remedies, including issuance of a capital directive, the termination
of deposit insurance by the FDIC, a prohibition on the taking of brokered
deposits, and to certain other restrictions on its business. See "-- Prompt
Corrective Action."
PROMPT CORRECTIVE ACTION
Current federal law establishes a system of prompt corrective action to
resolve the problems of undercapitalized institutions. Under this system the
federal banking regulators have established five capital categories ("well
capitalized," "adequately capitalized," "undercapitalized," "significantly
undercapitalized," and "critically undercapitalized") and must take certain
mandatory supervisory actions, and are authorized to take other discretionary
actions, with respect to institutions in the three undercapitalized categories,
the severity of which will depend upon the capital category in which the
institution is placed. Generally, subject to a narrow exception, current federal
law requires the banking regulator to appoint a receiver or conservator for an
institution that is critically undercapitalized. The federal banking agencies
have specified by regulation the relevant capital level for each category.
Under the final agency rule implementing the prompt corrective action
provisions, an institution that (1) has a Total Capital ratio of 10% or greater,
a Tier 1 Capital ratio of 6.0% or greater, and a Leverage Ratio of 5.0% or
greater and (2) is not subject to any written agreement, order, capital
directive, or prompt corrective action directive issued by the appropriate
federal banking agency is deemed to be "well capitalized." An institution with a
Total Capital ratio of 8.0% or greater, a Tier 1 Capital ratio of 4.0% or
greater, and a Leverage Ratio of 4.0% or greater is considered to be "adequately
capitalized." A depository institution that has a Total Capital ratio of less
than 8.0%, a Tier 1 Capital ratio of less than 4.0%, or a Leverage Ratio of less
than 4.0% is considered to be "undercapitalized." A depository institution that
has a Total Capital ratio of less than 6.0%, a Tier 1 Capital ratio of less than
3.0%, or a Leverage Ratio of less than 3.0% is
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<PAGE> 18
considered to be "significantly undercapitalized," and an institution that has a
tangible equity capital to assets ratio equal to or less than 2.0% is deemed to
be "critically undercapitalized." For purposes of the regulation, the term
"tangible equity" includes core capital elements counted as Tier 1 Capital for
purposes of the risk-based capital standards plus the amount of outstanding
cumulative perpetual preferred stock (including related surplus), minus all
intangible assets with certain exceptions. A depository institution may be
deemed to be in a capitalization category that is lower than is indicated by its
actual capital position if it receives an unsatisfactory examination rating.
An institution that is categorized as undercapitalized, significantly
undercapitalized, or critically undercapitalized is required to submit an
acceptable capital restoration plan to its appropriate federal banking agency. A
bank holding company must guarantee that a subsidiary depository institution
meet its capital restoration plan, subject to certain limitations. The
obligation of a controlling bank holding company to fund a capital restoration
plan is limited to the lesser of 5.0% of an undercapitalized subsidiary's assets
or the amount required to meet regulatory capital requirements. An
undercapitalized institution is also generally prohibited from increasing its
average total assets, making acquisitions, establishing any branches, or
engaging in any new line of business, except in accordance with an accepted
capital restoration plan or with the approval of the FDIC. In addition, the
appropriate federal banking agency is given authority with respect to any
undercapitalized depository institution to take any of the actions it is
required to or may take with respect to a significantly undercapitalized
institution as described below if it determines "that those actions are
necessary to carry out the purpose" of the law.
At June 30, 1999, all of Regions' subsidiary banks had the requisite
capital levels to qualify as well capitalized.
FDIC INSURANCE ASSESSMENTS
The FDIC currently uses a risk-based assessment system for insured
depository institutions that takes into account the risks attributable to
different categories and concentrations of assets and liabilities. The
risk-based assessment system, which went into effect on January 1, 1994, assigns
an institution to one of three capital categories: (1) well capitalized; (2)
adequately capitalized; and (3) undercapitalized. These three categories are
substantially similar to the prompt corrective action categories described
above, with the "undercapitalized" category including institutions that are
undercapitalized, significantly undercapitalized, and critically
undercapitalized for prompt corrective action purposes. An institution is also
assigned by the FDIC to one of three supervisory subgroups within each capital
group. The supervisory subgroup to which an institution is assigned is based on
a supervisory evaluation provided to the FDIC by the institution's primary
federal regulator and information which the FDIC determines to be relevant to
the institution's financial condition and the risk posed to the deposit
insurance funds (which may include, if applicable, information provided by the
institution's state supervisor). An institution's insurance assessment rate is
then determined based on the capital category and supervisory category to which
it is assigned. Under the final risk-based assessment system, there are nine
assessment risk classifications (i.e., combinations of capital groups and
supervisory subgroups) to which different assessment rates are applied.
The FDIC may terminate an institution's insurance of deposits upon a
finding that the institution has engaged in unsafe and unsound practices, is in
an unsafe or unsound
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<PAGE> 19
condition to continue operations, or has violated any applicable law,
regulation, rule, order, or condition imposed by the FDIC.
DESCRIPTION OF SUBORDINATED DEBT SECURITIES
The following description of the terms of the Subordinated Debt Securities
sets forth certain general terms and provisions of the Subordinated Debt
Securities to which any Prospectus Supplement may relate. We will describe in
the Prospectus Supplement the particular terms of the Subordinated Debt
Securities.
We plan to issue the Subordinated Debt Securities under an indenture (the
"Indenture"), entered into between Regions and Bankers Trust Company, as trustee
(the "Trustee") as of December 1, 1992, as amended to date and, if applicable,
any supplemental indenture. The Indenture is incorporated by reference as an
exhibit to the Registration Statement of which this Prospectus is a part. The
following summary of certain provisions of the Indenture does not purport to be
complete and is subject to and qualified in its entirety by reference to the
provisions of the Indenture. Whenever we refer to particular sections or defined
terms of the Indenture, we intend to refer to that particular provision of the
Indenture.
As of the date of this Prospectus, Regions has issued and has outstanding
under the Indenture (referred to collectively as the "Subordinated Notes"):
- $75 million of unsecured subordinated indebtedness designated 7.80%
Subordinated Notes Due 2002 (the "7.80% Subordinated Notes")
- $25 million of unsecured subordinated indebtedness designated 7.65%
Subordinated Notes Due 2001 (the "7.65% Subordinated Notes")
- $100 million of unsecured subordinated indebtedness designated 7 3/4%
Subordinated Notes Due 2024 (the "7 3/4% Subordinated Notes")
GENERAL
Although the amount of Subordinated Debt Securities of any series offered
to you is limited to the aggregate initial offering price described on the cover
page of the Prospectus Supplement, the Indenture does not include any
limitations on the amount of debt securities that may be issued thereunder from
time to time in one or more series. (Section 301).
The Subordinated Debt Securities will be unsecured and will be subordinate
and junior in right of payment to the prior payment in full of the Senior
Indebtedness of Regions (as described below). (Sections 101, 1502). As of the
date of this Prospectus, Regions has outstanding other subordinated indebtedness
as follows:
- $75 million of the 7.80% Subordinated Notes
- $25 million of the 7.65% Subordinated Notes
- $100 million of the 7 3/4% Subordinated Notes
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<PAGE> 20
We may issue Subordinated Debt Securities on a parity with previously
outstanding subordinated indebtedness of Regions, or senior to or subordinate to
the outstanding subordinated indebtedness.
Principal, premium, if any, and interest on the Subordinated Debt
Securities will be payable and the Subordinated Debt Securities may be
transferable or exchangeable, without payment of any service charge, other than
any tax or governmental charge payable in connection therewith, at the principal
corporate trust office of the Trustee and at any other office or agency
maintained by Regions for such purposes, except that at its option Regions may
pay interest by mailing a check to the address of the person entitled thereto as
it appears on the security register or by wire transfer to an account designated
by the holder under an arrangement satisfactory to Regions and the Trustee.
(Sections 307, 308, and 1002).
The Subordinated Debt Securities may be sold at a substantial original
issue discount below their stated principal amount, bearing no interest or
interest at a rate which at the time of issuance is below market rates.
(Sections 101, 301). Special federal income tax consequences and other
considerations applicable to any such Subordinated Debt Securities will be
described in the corresponding Prospectus Supplement relating thereto.
Because Regions is a holding company, its rights and the rights of its
creditors, including the holders of the Subordinated Debt Securities offered by
this Prospectus, to participate in any distribution of the assets of any
subsidiary of Regions upon the latter's liquidation or recapitalization will be
subject to the prior claims of such subsidiary's creditors (including, in the
case of a subsidiary depository institution, its depositors), except to the
extent that Regions may itself be a creditor with recognized claims against such
subsidiary. Claims on subsidiaries of Regions by creditors other than Regions
include claims with respect to long-term debt and substantial obligations with
respect to deposit liabilities, federal funds purchased, securities sold under
repurchase agreements and other short-term borrowings. See "The Company" and
"Supervision and Regulation."
Reference is made to the Prospectus Supplement for the specific terms of
the Subordinated Debt Securities offered hereby, including:
- the specific title of the Subordinated Debt Securities
- the aggregate principal amount of the Subordinated Debt Securities
offered hereby
- the denominations in which the Subordinated Debt Securities are
authorized to be issued and whether the Subordinated Debt Securities will
be issued in registered form, without coupons or in global book-entry
registered form
- the percentage of the principal amount at which the Subordinated Debt
Securities will be issued
- the date on which the Subordinated Debt Securities will mature
- the rate or rates per annum or the method for determining such rate or
rates, if any, at which the Subordinated Debt Securities will bear
interest (which may be fixed or variable)
- the times at which any such interest will be payable
- the place or places at which Regions will make payments of principal,
premium, if any, and interest and the method of such payment
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<PAGE> 21
- any premium payments
- any provisions relating to optional or mandatory redemption of the
Subordinated Debt Securities at the option of Regions or the holders of
the Subordinated Debt Securities or pursuant to sinking fund or analogous
provisions
- any terms by which the Subordinated Debt Securities may be convertible
into common stock or other securities of Regions
- any provisions relating to the conversion or exchange of the Subordinated
Debt Securities into Subordinated Debt Securities of another series
- any additional covenants and Events of Default (as described below) and
the remedies with respect thereto not currently set forth in the
Indenture
- any other specific terms of the Subordinated Debt Securities.
SUBORDINATION
The Subordinated Debt Securities are subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness of Regions.
(Section 1502). "Senior Indebtedness" is defined by the Indenture to include all
indebtedness and other obligations of Regions to its creditors, whether
outstanding on the date of execution of the Indenture or thereafter created,
assumed or incurred, including, but not limited to, (1) the principal of, and
premium, if any, and interest on all indebtedness for money borrowed, (2) all
obligations to make payment pursuant to the terms of financial instruments
(including securities contracts, derivative instruments, option contracts and
similar financial instruments), (3) any indebtedness or obligations of others of
the kind described in either (1) or (2) above for the payment of which Regions
is responsible or liable as guarantor or otherwise, and (4) any deferrals,
renewals or extensions of any such Senior Indebtedness, other than the
Subordinated Debt Securities and any other obligations expressly made
subordinate in right of payment to Senior Indebtedness. (Section 101).
As of June 30, 1999, and excluding $200 million in outstanding Subordinated
Notes, there was an aggregate of approximately $7.6 billion in borrowed funds of
Regions outstanding, approximately $188 million of which represented long-term
debt and $7.4 billion of which represented short-term borrowings, including $3.9
billion of federal funds purchased and securities sold subject to agreements to
repurchase, all of which is included in the definition of "Senior Indebtedness."
Senior Indebtedness also includes other liabilities, such as accounts payable.
Because of the inclusion of short-term components, the amount of Senior
Indebtedness outstanding is subject to significant fluctuation over even short
periods of time.
The Indenture does not limit the amount of Subordinated Debt Securities or
other debt securities that Regions may issue. (Section 301).
No payment in respect of the principal premium, if any, or interest on the
Subordinated Debt Securities shall be made by Regions, if any default in payment
with respect to any Senior Indebtedness shall have occurred and be continuing.
(Section 1502).
Upon any receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, whether or not pursuant to bankruptcy laws, sale
of all or substantially all of the assets (other than pursuant to Article 8 of
the Indenture), dissolution, liquidation or other marshaling of the assets and
liabilities of Regions, no amount shall be paid by
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<PAGE> 22
Regions, in respect of the principal, premium, if any, or interest on the
Subordinated Debt Securities unless and until all Senior Indebtedness shall have
been paid in full together with all interest thereon and all other amounts
payable in respect thereof. (Section 1502).
In the event that any payment or distribution of any character, whether in
cash or other property, shall be received by the Trustee or any holder of
Subordinated Debt Securities in contravention of any of the subordination terms
thereof, such payment or distribution shall, provided that the Trustee shall
have received notice of an event which triggers a requirement that no payment be
made with respect to Subordinated Debt Securities at least three business days
prior to the date for any payment on the Subordinated Debt Securities, be
received in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness at the time outstanding
in accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all such Senior Indebtedness in full. (Sections 1502 and
1508).
In the event of the failure of the Trustee or any holder to endorse or
assign any such payment, distribution or security, each holder of Senior
Indebtedness is hereby irrevocably authorized to endorse or assign the same.
(Section 1502). Notwithstanding the foregoing, holders may receive securities of
Regions or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions of the Subordinated Debt Securities, to
the payment of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization.
Upon the payment in full of all Senior Indebtedness, the holders shall be
subrogated (equally and ratably with the holders of all indebtedness of Regions
which, by its express terms, ranks on a parity with the Subordinated Debt
Securities and is entitled to like rights of subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets of
Regions applicable to the Senior Indebtedness until the Subordinated Debt
Securities shall be paid in full. (Section 1502).
COVENANTS
In the Indenture, Regions agrees not to merge or consolidate with another
entity or to sell its properties or assets as an entirety unless the successor
entity expressly assumes the obligations of Regions with respect to the
Subordinated Debt Securities and the covenants of Regions under the Indenture.
(Section 801). The Indenture does not restrict Regions from incurring, assuming
or becoming liable for any type of debt nor from creating, assuming, incurring
or permitting any mortgage, pledge, encumbrance, lien or charge on its property.
In addition, the Indenture does not include any covenant or any other provision
which would provide any recourse or other protection to the holders in the event
of any decline in credit rating or other indicia of credit quality, no matter
how sudden or significant, resulting from any cause, including from a merger,
consolidation, change in control, recapitalization or similar restructuring.
The Indenture does not restrict Regions' ability to sell, encumber or
otherwise dispose of the stock of its subsidiaries, including the stock of any
of its subsidiaries.
12
<PAGE> 23
MODIFICATION OF THE INDENTURE
The Indenture includes provisions permitting Regions and the Trustee, with
the consent of the holders of not less than a majority in principal amount of
any series of the Subordinated Debt Securities to be affected at the time
outstanding under the Indenture, to modify, by supplemental indenture, the
Indenture or the rights of the holders of such securities, except that without
the consent of each holder of each outstanding security affected thereby, no
such modification may be made that would cause or result in any of the
following:
- change the date of the maturity or any installment of principal, reduce
the principal amount or redemption premium, if any, or reduce the rate or
extend the time of payment of interest on any security.
- reduce the percentage in principal amount of the outstanding securities
of any series, the consent of whose holders is required to approve any
such modification or to waive any default or other waivable requirement
of the indenture.
- change the obligation of Regions to maintain an office or agent for
payment.
- modify any applicable subordination provisions in a manner adverse to the
holder of any of the securities.
- adversely affect the right of repayment of the securities of any series
at the option of the holders thereof, if any such right exists. (Section
902).
DEFAULTS AND LIMITED RIGHTS OF ACCELERATION
An Event of Default with respect the Subordinated Debt Securities of any
particular series is generally defined in the Indenture as (1) a default in the
payment of principal or premium thereon at maturity or in the deposit of any
sinking fund payment when and as due by the terms of the securities, (2) a
default in the payment of interest at the due date thereof and the continuance
of such default for a period of 30 days, (3) a default in the performance of or
breach of any other covenant or warranty therein by Regions and continuance of
such default or breach for a period of 60 days after notice thereof to Regions
by the Trustee or the holders of at least 15% in principal amount of the
affected series, or (4) certain events of bankruptcy, insolvency proceedings or
reorganization of Regions. (Section 501).
Payment of principal of the Subordinated Debt Securities may be accelerated
only in the case of an "Acceleration Event," which is defined in the Indenture
as including only the bankruptcy, insolvency proceedings or reorganization
events with respect to Regions that constitute an Event of Default. (Sections
101, 501). There is no right of acceleration in the case of a default in the
payment of principal, any premium or interest on the Subordinated Debt
Securities or the performance of any other covenant of Regions in the Indenture.
In the event an Acceleration Event shall have occurred and shall be
continuing, either the Trustee or the holders of 25% in principal amount of
those affected series of securities then outstanding under the Indenture may
declare the principal amount of all of such series of securities to be due and
payable immediately. (Section 502). Upon certain conditions a declaration of an
event of default may be annulled and past defaults may be
13
<PAGE> 24
waived by the holders of a majority in principal amount of the Subordinated Debt
Securities then outstanding. (Section 502).
Regions is obligated to furnish the Trustee annually a certificate as to
the compliance by Regions with all conditions and covenants under the Indenture.
(Section 704).
COLLECTION OF INDEBTEDNESS
The Indenture also provides that in the event of a failure by Regions to
make payment of principal of, or applicable premium or sinking fund installment
or interest on, the Subordinated Debt Securities (and, in the case of payment of
interest, such failure to pay shall have continued for 30 days) Regions will,
upon demand of the Trustee, pay to it, for the benefit of the holders, the whole
amount then due and payable on such securities for principal and any premium,
sinking fund installment and interest, including, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
and premium, on any sinking fund installment and on any overdue interest,
computed from the date of default in the payment of such interest, at the rate
or rates prescribed therefor in such securities, and in addition such further
amount as is sufficient to cover the costs and expenses of collection. (Section
503). The Indenture further provides that if Regions fails to pay such amount
forthwith upon such demand, the Trustee may, among other things, institute a
judicial proceeding for the collection thereof. (Section 503). The Indenture
includes limitations on the right of any holder to institute judicial
proceedings in respect thereto. (Section 507). However, the Indenture provides
that notwithstanding any other provision of the Indenture any holder shall have
the right to institute suit for the enforcement of any payment of principal of
any premium, and interest on such holder's Subordinated Debt Securities on the
respective stated maturities expressed in such securities and that such right
shall not be impaired without the consent of such holder. (Section 508).
The holders of a majority in principal amount of the Subordinated Debt
Securities of any series then outstanding under the Indenture shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee under that Indenture, subject to certain
exceptions. (Section 512). The Indenture requires the annual filing by Regions
with the Trustee of a statement as to the absence of default and as to
compliance with the terms of that Indenture. (Section 1004).
CONCERNING THE TRUSTEE
Regions and Bankers Trust Company have from time to time engaged in
customary banking transactions in the ordinary course of business. Bankers Trust
Company also serves as Trustee under the Indenture for the 7.80% Subordinated
Notes, the 7.65% Subordinated Notes, and the 7 3/4% Subordinated Notes.
BOOK-ENTRY PROCEDURES
GENERAL
If the Prospectus Supplement so states, then the Subordinated Debt
Securities are to be issued initially as securities transferable only by
book-entry, and the Depository Trust Company ("DTC"), New York, New York, will
act as securities depository for the
14
<PAGE> 25
Subordinated Debt Securities. We have summarized below certain terms relating to
the book-entry facilities of DTC as the depositary for the Subordinated Debt
Securities. To the extent that this summary is inconsistent with the book-entry
provisions and description of the Subordinated Debt Securities in the Prospectus
Supplement, you should rely on the description in the Prospectus Supplement.
The Subordinated Debt Securities will be issued as fully-registered
securities registered in the name of Cede & Co. (DTC's partnership nominee). One
fully-registered certificate will be issued for each series of the Subordinated
Debt Securities, each in the aggregate principal amount of such series, and will
be deposited with DTC.
Beneficial interests in the Subordinated Debt Securities will be shown on,
and transfers will be made only through, records maintained by DTC and its
participants. DTC has provided Regions with the information that follows.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
When you purchase Subordinated Debt Securities through the DTC system, the
purchases must be made by or through a Direct Participant, who will receive
credit for the Subordinated Debt Securities on DTC's records. When you purchase
the Subordinated Debt Securities, you will be the beneficial owner. Your
ownership interest will only be recorded on the direct (or indirect)
participants' records. DTC will have no knowledge of your individual ownership
of the Subordinated Debt Securities. DTC's records only show the identity of the
Direct Participants and the amount of the Subordinated Debt Securities held by
or through them. You will not receive a written confirmation of your purchase or
sale or any periodic account statement directly from DTC. Instead you will
receive these from your direct (or indirect) participant. As a result, the
direct (or indirect) participants are responsible for keeping accurate account
of the securities holdings of their customers like you.
Transfers of ownership interests in the Subordinated Debt Securities are to
be accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Subordinated Debt Securities, except in the event
that use of the book-entry system for the Subordinated Debt Securities is
discontinued.
15
<PAGE> 26
To facilitate subsequent transfers, all Subordinated Debt Securities
deposited by Participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. The deposit of Subordinated Debt Securities with
DTC and their registration in the name of Cede & Co. effect no change in
beneficial ownership.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
PAYMENTS OF PRINCIPAL AND INTEREST
Principal and interest payments on the Subordinated Debt Securities will be
made to Cede & Co., as nominee of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from an issuer or paying agent, on payable date in accordance with
their respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Regions, the Trustee or any paying agent,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of principal and interest to Cede & Co. is the
responsibility of Regions or its paying agent, disbursement of such payments to
Direct Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
REDEMPTION
Any redemption notices will be sent by Regions directly to DTC, who will,
in turn, inform the Direct Participants (or the Indirect Participants), who will
then contact you as a beneficial holder. If less than all of the Subordinated
Debt Securities are being redeemed, DTC's practice is to determine by lot the
amount of the interest of each Direct Participant in such issue to be redeemed.
VOTING PROCEDURES
Neither DTC nor Cede & Co. will consent or vote with respect to
Subordinated Debt Securities. Under its usual procedures, DTC mails an Omnibus
Proxy to an issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants to
whose accounts the Subordinated Debt Securities are credited on the record date
(identified in a Listing attached to the Omnibus Proxy).
EXCHANGES
Subordinated Debt Securities registered in the name of DTC or its nominee
will be exchangeable for certificated securities with the same terms in
authorized denominations only if:
16
<PAGE> 27
- DTC is unwilling or unable to continue as depositary or if DTC ceases to
be a clearing agency registered under applicable law and a successor
depositary is not appointed by Regions within 90 days; or
- Regions decides to discontinue use of the system of book-entry transfer
through DTC (or any successor depositary).
If the book-entry only system is discontinued, the Trustee will keep the
registration books for the Subordinated Debt Securities at its corporate office.
YEAR 2000 PROBLEM
DTC management is aware that some computer applications, systems, and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on, and after January 1, 2000, may encounter "Year 2000
problems." DTC has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC ("DTC Services"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes a
testing phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the Industry that it is contacting (and will
continue to contact) third party vendors from whom DTC acquires services to: (1)
impress upon them the importance of such services being Year 2000 compliant; and
(2) determine the extent of their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition, DTC is in the process of
developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
DISCLAIMER REGARDING INFORMATION ABOUT DTC
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Regions believes to be reliable, but Regions
takes no responsibility for the accuracy thereof.
PLAN OF DISTRIBUTION
Regions may sell the Subordinated Debt Securities on a negotiated or
competitive bid basis to or through underwriters or dealers, and may also sell
the Subordinated Debt Securities directly to other purchasers or through agents.
The distribution of the Subordinated Debt Securities may be effected from time
to time in one or more
17
<PAGE> 28
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The Prospectus Supplement corresponding
to such Subordinated Debt Securities will set forth the terms of the offering of
the Subordinated Debt Securities of such series, including the name or names of
any underwriters, the purchase price and the proceeds to Regions from such
sales, any underwriting discounts, agency fees and other items constituting
underwriters' compensation, the initial public offering price, any discounts or
concessions to be allowed or reallowed or paid to dealers and the securities
exchange, if any, on which such Subordinated Debt Securities may be listed.
If underwriters are used in the sale, the Subordinated Debt Securities may
be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of
sale. The Subordinated Debt Securities may be offered to the public either
through underwriting syndicates represented by managing underwriters, or by
underwriters without a syndicate, all of which underwriters in either case will
be designated in the Prospectus Supplement with respect to such offering. Unless
otherwise set forth in the Prospectus Supplement, under the terms of the
underwriting agreement, the obligations of the underwriters to purchase the
Subordinated Debt Securities will be subject to certain conditions precedent and
the underwriters will be obligated to purchase all the Subordinated Debt
Securities if any are purchased.
The Subordinated Debt Securities may be sold directly by Regions or through
agents designated by Regions from time to time. Any agent involved in the offer
or sale of the Subordinated Debt Securities with respect to which this
Prospectus is delivered will be named, and any commission payable by Regions to
such agent will be set forth, in the corresponding Prospectus Supplement. Unless
otherwise indicated in such Prospectus Supplement, any such agent will be acting
on a best-efforts basis for the period of its appointment.
The Subordinated Debt Securities will be newly issued securities with no
established market. No assurance can be given as to the liquidity of the trading
market, if any, for any of the Subordinated Debt Securities.
Underwriters and agents may be entitled under agreements entered into with
Regions to indemnification by Regions against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which the underwriters or agents may be required to make in respect
thereof. Underwriters and agents also may be customers of, engage in
transactions with or perform other services for Regions in the ordinary course
of business.
EXPERTS
The consolidated financial statements of Regions, incorporated by reference
in this Registration Statement, have been audited by Ernst & Young LLP,
independent auditors, for the periods indicated in their report thereon which is
included in Regions' Annual Report on Form 10-K for the year ended December 31,
1998. The financial statements audited by Ernst & Young LLP have been
incorporated herein by reference in reliance on their report given on their
authority as experts in accounting and auditing.
18
<PAGE> 29
LEGAL OPINIONS
Certain legal matters with respect to the Subordinated Debt Securities
offered hereby will be passed upon for Regions by Lange, Simpson, Robinson &
Somerville LLP, Birmingham, Alabama. Henry E. Simpson, a partner in the law firm
of Lange, Simpson, Robinson & Somerville LLP, is a director of Regions. As of
August 23, 1999, attorneys of that firm beneficially owned, directly or
indirectly, an aggregate of 236,431 shares of Regions common stock.
19
<PAGE> 30
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS
SUPPLEMENT OR THE PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY REGIONS OR
ANY UNDERWRITER. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF REGIONS SINCE SUCH DATE.
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
The Company......................... S-
Use of Proceeds..................... S-
Selected Consolidated Financial
Data.............................. S-
Description of the Notes............ S-
Capitalization...................... S-
Underwriting........................ S-
Legal Matters....................... S-
PROSPECTUS
Where You Can Find More
Information.......................
Forward Looking Statements..........
The Company.........................
Use of Proceeds.....................
Supervision and Regulation..........
Description of Subordinated Debt
Securities........................
Plan of Distribution................
Experts.............................
Legal Opinions......................
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
$
(REGIONS LOGO)
REGIONS FINANCIAL CORPORATION
% Subordinated Notes Due
----------------------------------
PROSPECTUS SUPPLEMENT
-----------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 31
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses, other than underwriting or broker-dealer fees,
discounts and commissions, in connection with the offering are as follows:
<TABLE>
<S> <C>
Securities Act registration fee........................................... $ 69,000
Rating agency fee......................................................... 125,000
Printing and engraving.................................................... 50,000
Legal fees and expenses................................................... 40,000
Accounting fees and expenses.............................................. 20,000
Blue Sky fees and expenses................................................ 25,000
Fees of indenture trustee................................................. 25,000
Miscellaneous............................................................. 10,000
--------
$364,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Tenth of the Certificate of Incorporation of the Registrant
provides:
"(a) The corporation shall indemnify its officers, directors,
employees and agents to the full extent permitted by the General
Corporation Law of Delaware. (b) No director of the corporation shall be
personally liable to the corporation or its stockholders for monetary
damages, for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the corporation or
its stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the Delaware General Corporation Law; or (iv) for any
transaction from which the director derived an improper personal benefit."
Section 145 of the Delaware General Corporation Law, as amended, empowers
the Registrant to indemnify its officers and directors under certain
circumstances. The pertinent provisions of that statute read as follows:
"(a) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
"(b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
<PAGE> 32
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
"(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (2) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
"(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
"(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
"(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
<PAGE> 33
"(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
"(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee, or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
"(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person."
The Registrant has purchased a directors' and officers' liability insurance
contract which provides, within stated limits, reimbursement either to a
director or officer whose actions in his capacity result in liability, or to the
Registrant, in the event it has indemnified the director or officer. Major
exclusions from coverage include libel, slander, personal profit based on inside
information, illegal payments, dishonesty, accounting of securities profits in
violation of Section 16(b) of the Securities Exchange Act of 1934 and acts
within the scope of the Pension Reform Act of 1974.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C> <C>
4.1 -- Trust Indenture dated as of December 1, 1992.
5.1 -- Opinion Re: legality.
12.1 -- Calculation of Earnings to Fixed Charges and to
Combined Fixed Charges.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Lange, Simpson, Robinson & Somerville LLP
-- included in Exhibit 5.1.
</TABLE>
<PAGE> 34
<TABLE>
<S> <C> <C>
24.1 -- Power of Attorney
25.1 -- Statement of Eligibility of Indenture Trustee on
Form T-1.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes (1) to use to its best efforts
to distribute prior to the opening of bids, to prospective bidders, underwriters
and dealers, a reasonable number of copies of a prospectus which at that time
meets the requirements of Section 10(a) of the Act, and relating to the
securities offered at competitive bidding, as contained in the registration
statement, together with any supplements thereto, and (2) to file an amendment
to the registration statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the issuer after the opening
of bids of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer and
no reoffering of such securities by the purchaser is proposed to be made.
<PAGE> 35
The undersigned Registrant hereby undertakes that: (1) For purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective. (2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
<PAGE> 36
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Birmingham,
State of Alabama, on August 27, 1999.
REGISTRANT:
REGIONS FINANCIAL CORPORATION
BY: /s/ Richard D. Horsley
-----------------------------------------
Richard D. Horsley
Vice Chairman of the Board and
Executive Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------- ---------------------------- -----------------
<S> <C> <C>
* President and Chief Executive August 27, 1999
- ------------------------- Officer and Director
Carl E. Jones, Jr. (principal executive officer)
* Vice Chairman of the Board and August 27, 1999
- ------------------------- Executive Financial Officer
Richard D. Horsley and Director
(principal financial officer)
* Executive Vice President and August 27, 1999
- ------------------------- Comptroller
Robert P. Houston (principal accounting officer)
</TABLE>
<PAGE> 37
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------- ---------------------------- -----------------
<S> <C> <C>
* Director August 27, 1999
- -------------------------
Sheila S. Blair
* Director August 27, 1999
- -------------------------
James B. Boone, Jr.
* Director August 27, 1999
- -------------------------
James S.M. French
* Director August 27, 1999
- -------------------------
Olin B. King
* Chairman of the Board August 27, 1999
- ------------------------- and Director
J. Stanley Mackin
* Director August 27, 1999
- -------------------------
Michael W. Murphy
* Director August 27, 1999
- -------------------------
Henry E. Simpson
* Director August 27, 1999
- -------------------------
Lee J. Styslinger, Jr.
* Director August 27, 1999
- -------------------------
W. Woodrow Stewart
* Director August 27, 1999
- -------------------------
John H. Watson
* Director August 27, 1999
- -------------------------
Robert J. Williams
* Director August 27, 1999
- -------------------------
C. Kemmons Wilson, Jr.
</TABLE>
*By /s/ Samuel E. Upchurch, Jr. August 27, 1999
--------------------------------
as attorney-in-fact pursuant to a
power of attorney
<PAGE> 38
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------ --------------------------------------------------------------- ------------
<S> <C> <C> <C>
4.1 -- Trust Indenture dated as of December 1, 1992.
5.1 -- Opinion Re: Legality.
12.1 -- Calculation of Earnings to Fixed Charges and to Combined Fixed
Charges.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Lange, Simpson, Robinson & Somerville LLP --
included in Exhibit 5.1.
24.1 -- Power of Attorney
25.1 -- Statement of Eligibility of Indenture Trustee on Form T-1.
</TABLE>
<PAGE> 1
EXHIBIT 4.1
================================================================================
FIRST ALABAMA BANCSHARES, INC.
and
BANKERS TRUST COMPANY
Trustee
------------------------
INDENTURE
Dated as of December 1, 1992
------------------------
Debt Securities
================================================================================
<PAGE> 2
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated
as of December, 1992
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ----------- -----------------
<S> <C>
Section 310(a)(1).......................................................................................609
(a)(2).......................................................................................609
(a)(3)............................................................................Not Applicable
(a)(4)............................................................................Not Applicable
(a)(5).......................................................................................609
(b).....................................................................................608, 610
(c)...............................................................................Not Applicable
Section 311(a)..........................................................................................613(a)
(b)..........................................................................................613(b)
(b)(2)............................................................................703(a)(3), 703(b)
Section 312(a).....................................................................................701, 702(a)
(b)..........................................................................................702(b)
(c)..........................................................................................702(c)
Section 313(a)..........................................................................................703(a)
(b)..........................................................................................703(b)
(c)..........................................................................................703(c)
(d)..........................................................................................703(d)
Section 314(a)..........................................................................................704
(b)...............................................................................Not Applicable
(c)(1).......................................................................................102
(c)(2).......................................................................................102
(c)(3)............................................................................Not Applicable
(d)...............................................................................Not Applicable
(e)..........................................................................................102
Section 315(a)..........................................................................................601(a)
(b).....................................................................................602, 703(a)(7)
(c)..........................................................................................601(b)
(d)..........................................................................................601(c)
(d)(1).......................................................................................601(a)(1)
(d)(2).......................................................................................601(c)(2)
(d)(3).......................................................................................601(c)(3)
(e)..........................................................................................514
Section 316(a)..........................................................................................101
(a)(1)(A).......................................................................104(e), 502, 512
(a)(1)(B)............................................................................104(e), 513
(a)(2)............................................................................Not Applicable
(b)..........................................................................................508
(c)..........................................................................................104(e)
Section 317(a)(1).......................................................................................503
(a)(2).......................................................................................504
(b).........................................................................................1003
Section 318(a)..........................................................................................108
(c)..........................................................................................108
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
Parties..................................................................................................1
Recitals of the Company..................................................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions............................................................................1
Section 102. Compliance Certificates and Opinions ..................................................9
Section 103. Form of Documents Delivered to Trustee ...............................................10
Section 104. Acts of Holders.......................................................................10
Section 105. Notices, Etc., to Trustee and Company ................................................12
Section 106. Notice to Holders of Securities; Waiver ..............................................12
Section 107. Language of Notices, Etc..............................................................13
Section 108. Conflict with Trust Indenture Act.....................................................13
Section 109. Effect of Headings and Table of Contents..............................................13
Section 110. Successors and Assigns................................................................13
Section 111. Separability Clause...................................................................13
Section 112. Benefits of Indenture.................................................................13
Section 113. Governing Law.........................................................................14
Section 114. Legal Holidays........................................................................14
ARTICLE TWO
Security Forms
Section 201. Forms Generally.......................................................................14
Section 202. Form of Trustee's Certificate of
Authentication .....................................................15
Section 203. Securities Issuable in the Form
a Global Security ...................................................15
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series..................................................17
Section 302. Denominations.........................................................................19
Section 303. Execution, Authentication, Delivery
and Dating...................................................................19
Section 304. Temporary Securities; Exchange of
Temporary Securities.........................................................21
Section 305. Registration, Registration of Transfer
and Exchange.................................................................22
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities and Coupons.......................................................23
Section 307. Payment of Interest; Interest Rights
Preserved....................................................................24
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 308. Persons Deemed Owners.................................................................25
Section 309. Cancellation..........................................................................26
Section 310. Computation of Interest...............................................................26
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture...............................................26
Section 402. Application of Trust Money............................................................28
ARTICLE FIVE
Remedies
Section 501. Events of Default.....................................................................28
Section 502. Acceleration of Maturity, Rescission and
Annulment.............................................................................29
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................................................30
Section 504. Trustee May File Proofs of Claim......................................................32
Section 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons..........................................32
Section 506. Application of Money or Property Collected............................................33
Section 507. Limitation on Suits...................................................................33
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest ......................................................34
Section 509. Restoration of Rights and Remedies....................................................34
Section 510. Rights and Remedies Cumulative........................................................34
Section 511. Delay or Omission Not Waiver..........................................................35
Section 512. Control by Holders of Securities......................................................35
Section 513. Waiver of Past Defaults...............................................................35
Section 514. Undertaking for Costs.................................................................36
Section 515. Waiver of Stay or Extension Laws......................................................36
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities...................................................37
Section 602. Notice of Defaults....................................................................38
Section 603. Certain Rights of Trustee.............................................................38
Section 604. Not Responsible for Recitals or
Issuance of Securities.......................................................40
Section 605. May Hold Securities...................................................................40
Section 606. Money Held in Trust...................................................................40
Section 607. Compensation and Reimbursement........................................................40
Section 608. Disqualification; Conflicting Interests...............................................41
Section 609. Corporate Trustee Required; Eligibility...............................................48
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 610. Resignation and Removal; Appointment of
Successor....................................................................49
Section 611. Acceptance of Appointment by Successor................................................51
Section 612. Merger, Conversion, Consolidation or
Succession to Business.......................................................52
Section 613. Preferential Collection of Claims
Against Company..............................................................53
Section 614. Appointment of Authenticating Agent...................................................57
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names
and Addresses of Holders.....................................................59
Section 702. Preservation of Information;
Communications to Holders....................................................60
Section 703. Reports by Trustee....................................................................62
Section 704. Reports by Company....................................................................63
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc,
Only on Certain Terms........................................................64
Section 802. Successor Substituted.................................................................65
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders...........................................................65
Section 902. Supplemental Indentures with
Consent of Holders...........................................................67
Section 903. Execution of Supplemental Indentures..................................................69
Section 904. Effect of Supplemental Indentures.....................................................69
Section 905. Conformity with Trust Indenture Act...................................................69
Section 906. Reference in Securities to
Supplemental Indentures......................................................69
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE TEN
Covenants
<S> <C> <C>
Section 1001. Payment of Principal, Premium and Interest............................................70
Section 1002. Maintenance of Office or Agency.......................................................70
Section 1003. Money for Securities Payments to Be
Held in Trust................................................................70
Section 1004. Officers' Certificate.................................................................72
Section 1005. Additional Amounts....................................................................72
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article..............................................................73
Section 1102. Election to Redeem; Notice to Trustee.................................................74
Section 1103. Selection by Trustee of Securities to
Be Redeemed..................................................................74
Section 1104. Notice of Redemption..................................................................75
Section 1105. Deposit of Redemption Price...........................................................76
Section 1106. Securities Payable on Redemption Date.................................................76
Section 1107. Securities Redeemed in Part...........................................................76
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article..............................................................77
Section 1202. Satisfaction of Sinking Fund
Payments with Securities.....................................................77
Section 1203. Redemption of Securities for Sinking Fund.............................................78
ARTICLE THIRTEEN
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May Be Called.............................................78
Section 1302. Call, Notice and Place of Meetings....................................................78
Section 1303. Persons Entitled to Vote at Meetings..................................................79
Section 1304. Quorum; Action........................................................................79
Section 1305. Determination of Voting Rights;
Conduct and Adjournment of Meetings..........................................80
Section 1306. Counting Votes and Recording Action
of Meetings..................................................................81
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
ARTICLE FOURTEEN
Defeasance
<S> <C> <C>
Section 1401. Applicability of Article; Company's
Option to Effect Defeasance .................................................82
Section 1402. Defeasance and Discharge..............................................................82
Section 1403. Conditions to Defeasance..............................................................83
Section 1404. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions...............................................84
ARTICLE FIFTEEN
Subordination of Securities
Section 1501. Applicability of Article..............................................................85
Section 1502. Securities Subordinate to Senior
Indebtedness.................................................................85
Section 1503. Rights of Holders of Senior Indebtedness
Not Impaired.................................................................87
Section 1504. Trustee Authorized to Effectuate
Subordination................................................................87
Section 1505. Trustee May Hold Senior Indebtedness..................................................87
Section 1506. Trustee and Holders of Securities May
Rely on Certificate of Liquidating
Agent; Trustee May Require Further
Evidence as to Ownership of Senior
Indebtedness; Trustee Not Fiduciary
to Holders of Senior Indebtedness............................................88
Section 1507. Permitted Payments....................................................................88
Section 1508. Trustee Not Charged with Knowledge
of Prohibition...............................................................89
ARTICLE SIXTEEN
Repayment at the Option of Securityholders
Section 1601. Applicability of Article..............................................................89
Section 1602. Repayment of Securities...............................................................89
Section 1603. Exercise of Option; Notice............................................................90
Section 1604. Securities Payable on the Repayment Date..............................................90
</TABLE>
v
<PAGE> 8
<TABLE>
<CAPTION>
ARTICLE SEVENTEEN
Convertible Securities
<S> <C> <C>
Section 1701. Applicability of Article................................................................91
Section 1702. Terms of Convertible Securities.........................................................91
Section 1703. Manner of Exercise......................................................................92
Section 1704. Issuance of Common Stock or Other
Securities......................................................................93
Section 1705. Trustee and Conversion Agents Not Liable................................................94
ARTICLE EIGHTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
Section 1801. Exemption from Individual Liability.....................................................95
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed
to be a part of the Indenture.
vi
<PAGE> 9
INDENTURE, dated as of __________, 1992, between First Alabama
Bancshares, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 417 North 20th Street, Birmingham, Alabama and Bankers Trust Company, a New
York banking corporation, 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
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 ONE
Definitions and Other Provisions
of General Application
Section 101. 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 or by Commission rule under 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 in the United States of America, 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
<PAGE> 10
are generally accepted in the United States of America 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.
Certain terms, used principally in Article Six, are defined in that
Article.
"Acceleration Event" means, with respect to the Securities, the
occurrence with respect the Company of any of the events described in Section
501(5) or (6), continued for the period of time, if any, and after the giving of
notice, if any designated in Section 501(5) or (6), or shall have the meaning
otherwise specified in the Securities.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"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 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means the board of directors of the Company, the
executive committee or any other committee of such board duly authorized 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 or any
other particular location referred to in this Indenture or in the Securities,
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.
2
<PAGE> 11
"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.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"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" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
Chief Executive Officer, President or a Vice President, and by its Treasurer, an
Assistant Treasurer, Controller, an Assistant Controller, Secretary, or an
Assistant Secretary, and delivered to the Trustee.
"Controlled Subsidiary" means any corporation more than 80% of the
outstanding shares of Voting Stock, except for directors' qualifying shares, of
which shall at the time be owned directly by the Company.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York, at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution of this
Indenture is located at Four Albany Street, New York, New York 10006, except
that, with respect to presentation of Securities for payment or registration of
transfers and exchanges and the location of the Security Registrar, such term
means the office or agency of the Trustee in said city at which at any
particular time its corporate agency business shall be conducted.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depository by the Company pursuant to Section 203 or Section 301 until a
successor Depository shall
3
<PAGE> 12
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depository" shall mean or include each Person who is then a
Depository hereunder, and if at any time there is more than one such person,
"Depository" as used with respect to the Securities of any such series shall
mean the Depository with respect to the Global Security of that series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Equivalent Principal Terms" has the meaning specified in Section 1102.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security issued to a Depository in accordance
with Section 203.
"Holder", when used with respect to any Security, means the Person in
whose name the 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
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"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, exercise of option for
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such Officers' Certificate shall contain the statements set
4
<PAGE> 13
forth in Section 102.
"Opinion of Counsel" means a written opinion, satisfactory in form and
substance to the Trustee, of counsel, who may (except as otherwise expressly
provided in this Indenture) be counsel for the Company, and shall be
satisfactory to the Trustee. Each such Opinion of Counsel shall contain the
statements set forth in Section 102.
"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 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(A) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(B) 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
(except pursuant to Article Fourteen) 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
(C) Securities which have been paid pursuant to Section 306 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 of any one or more series have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of Holders of Securities
(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
5
<PAGE> 14
pursuant to Section 502, and (ii) 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 or upon any
such determination as to the presence of a quorum, only Securities which a
Responsible Officer in the Corporate Trust Office of 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 and any premium, interest or additional amounts 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, subject to the provisions of Section
1002, the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 301.
"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 306 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.
"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 301.
"Repayment Date", when used with respect to any Security to
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be repaid upon exercise of an option for repayment by the Holder, means the date
fixed for such repayment by or pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, shall
mean any officer within the Corporate Trust and Agency Group (or any successor
group of the Trustee) including any vice president, assistant vice president,
assistant secretary or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at that time shall be such officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such trust 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" has the meaning specified in Section 305.
"Security Registrar" means the Person appointed by the Company to
register Securities and transfers of Securities as provided in Section 305.
Initially, the Trustee is the Security Registrar for the Securities.
"Senior Indebtedness" means all indebtedness and other obligations of
the Company to its creditors, whether now outstanding on the date of execution
of this Indenture or thereafter created, assumed or incurred, including but not
limited to (i) the principal of, and premium, if any, and interest on all
indebtedness for money borrowed, (ii) all obligations to make payment pursuant
to the terms of financial instruments (including securities contracts,
derivative instruments, option contracts and similar financial instruments)
(iii) any indebtedness or obligations of others of the kind described in either
(i) or (ii) above for the payment of which the Company is responsible or liable
as guarantor or otherwise, and (iv) any deferrals, renewals or extensions of any
such Senior Indebtedness, except Subordinated Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Company pursuant to Section
307.
"Stated Maturity", when used with respect to any Security or
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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.
"Subordinated Indebtedness" means any obligation of the Company as to
which, in the instrument creating or evidencing the same or pursuant to which it
is outstanding, it is expressly provided that such obligation is subordinate and
junior in right with respect to the general assets of the Company to Senior
Indebtedness.
"Subordinated Securities" means Securities or any series thereof which
in either case constitute Subordinated Indebtedness.
"Subsidiary" means a corporation a majority of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or
more Subsidiaries, or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities 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 amended
by the Trust Indenture Reform Act of 1990 and as in force at the date as of
which this instrument was executed, except as provided in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii)
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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 or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any 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 outstanding shares of capital stock having voting
power for the election of directors, whether at all times or only so long as no
senior class of stock has such voting power because of default in dividends or
other default.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action or refrain from taking any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent or covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent or covenants, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 704(4)) 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;
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(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 103. 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 Officers' 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 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
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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 an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1306.
(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 principal amount and serial numbers of Securities held by
any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) 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.
(e) The Company may set a record date for purposes of determining
the identity of Holders of Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 512 or
Section 513. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such securities furnished to the Trustee pursuant
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to Section 701 prior to such solicitation.
Section 105. 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,
Attention: Corporate Trust and Agency Group, 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 (or by guaranteed overnight delivery), to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, to the attention of its Secretary, or at
any other address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be
sufficiently given to Holders of Securities if in writing and mailed,
first-class postage prepaid to each Holder of a Security affected by such event,
at the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
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 to
Holders of Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities.
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 of Securities shall be filed with the
Trustee, but such
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filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 107. Language of Notices. Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) of the Trust Indenture Act, the duties
imposed upon the Trustee by the Trust Indenture Act will control. The parties
hereto further agree that in the case of any duty of the Trustee detailed herein
that relates to a specific subject matter covered by the Trust Indenture Act and
is set forth herein in a different manner than in the Trust Indenture Act (which
manner does not limit, qualify or conflict with the duties imposed by the Trust
Indenture Act but is susceptible to the interpretation that it imposes an
additional duty on the Trustee), the Trustee shall only be required to comply
with the requirements of the Trust Indenture Act with respect to that particular
subject matter, and shall not be obligated to comply with its additional
contractual duties relating to that subject matter.
Section 109. 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 110. 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 111. Separability Clause.
In case any provision in this Indenture or 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 112. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders of Securities any
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benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Delaware.
Section 114. Legal Holidays.
Except as specified pursuant to Section 301, in any case where any
Interest Payment Date, Redemption Date, Repayment 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 in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
principal and any premium 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,
Redemption Date or Repayment Date, or at the Stated Maturity, provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity,
as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities issued, authenticated and delivered under this Indenture
shall be issued only in fully registered form, or in global form in accordance
with Section 203, in either case without coupons.
The Securities of each series shall be in such form (including
temporary 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 executing such Securities,
as evidenced by their execution of the Securities. Any such legends or
endorsements placed on such Securities by the Company after the execution of the
Securities shall be delivered in writing to
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the Trustee by the Company. If the forms of Securities of any 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 Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary security).
Any definitive registered 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 executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Bankers Trust Company
as Trustee
By
---------------------------------------
Authorized Signatory
Section 203. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 301 that
the Securities of a particular series are to be issued as a Global Security,
then notwithstanding Section 302, the Company shall execute and the Trustee
shall, in accordance with Section 303 and the Company Request or Company Order
delivered to the Trustee hereunder, authenticate and deliver, one or more Global
Securities, which (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the outstanding Securities of
such series as shall be specified therein, (ii) shall be delivered in the name
of the Depository or its nominee, (iii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instructions and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 305 of the Indenture, this Security may be transferred, in whole but not
in part, only to another nominee of the Depository or to a successor Depository
or to a nominee of such successor Depository."
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Notwithstanding any other provision of this Section 203 or of Section
305, the Global Securities of a series may be transferred, in whole but not in
part and in the manner provided in Section 305, only to another nominee of the
Depository for such series, or to a successor Depository for such series
selected or approved by the Company or to a nominee of such successor
Depository.
(b) If at any time the Depository for a series of Securities
notifies the Company that it is unwilling or unable to continue as Depository
for such series or if at any time the Depository for such series shall no longer
be registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation and a successor Depository
for such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
this Section 203 shall no longer be applicable to the Securities of such series
and the Company will execute, and the Trustee shall authenticate and deliver,
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series, in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security and
that the provisions of this Section 203 shall no longer apply to the Securities
of such series. In such event the Company will execute and the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series, in exchange for such Global Security. Upon the exchange of the
Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by
the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 203 shall be registered in such
names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
Unless otherwise provided as contemplated in Section 301, if Securities
of any series are issued in global form then all Securities of such series must
be issued in global form, and if Securities of any series in global form are
exchanged for Securities in definitive registered form, then all Securities of
such series must be so exchanged.
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All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
(c) Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Global Security shall be made to the Depository.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding sentence of this Subsection (c), unless otherwise specified as
provided in Section 301, the Company, the Trustee and any agent of the Company
and any agent of the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a Global Security as
shall be specified in a written statement of the Depository which is provided to
the Trustee by the Depository.
(d) Each Depository and any successor Depository must, at the time
of its designation and at all times while it serves as Depository, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
ARTICLE THREE
The Securities
Section 301. 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 303,
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 the Securities of
all other series, if any);
(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 304, 305, 306, 906, 1107
or
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1603 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the manner in which or the Person to whom any
interest on any 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, or the formula pursuant to which
such rate or rates shall be determined, the date or dates from which
any 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 Securities on any Interest Payment Date;
(6) the place or places where, subject to the provisions
of Sections 1002 and 114, the principal of and any premium and interest
on Securities of the series shall be payable, any Securities of the
series may be surrendered for registration of transfer, Securities of
the series may be surrendered for exchange, and notices and demands to
or upon the Company in respect of the Securities of the series and this
Indenture may be served;
(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 and/or repaid in whole or in part, at the option of the
Holders;
(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) the denominations in which any Securities of the
series shall be issuable, if other than the denominations provided in
Section 302;
(10) if the amount of payments of principal of and any
premium or interest on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
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(11) if other than the principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(12) if Section 1402 shall not apply to the Securities of
the series;
(13) the person who shall be the Security Registrar, if
other than the Trustee and the person who shall be the initial Paying
Agent;
(14) whether Securities of the series are to be issuable
in fully registered form or in global form in accordance with Section
203, and if in global form, the designation of the Depository;
(15) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
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 303) set forth
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the 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 the series.
Section 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by the
Chairman of the Board, Chief Executive Officer, President or a Vice President,
under its corporate seal reproduced thereon attested by its Secretary or an
Assistant Secretary. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
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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 such Securities were issued.
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 forms or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, 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 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(1) if the forms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 201, that
such forms have been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been established in conformity with the provisions of
this Indenture; and
(3) 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, as to enforcement,
to bankruptcy, insolvency, organization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles.
If such forms 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 301 and of the preceding
paragraph, if all Securities of a series are not to be
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originally issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 301 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.
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, 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 duly 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 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities; Exchange of 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, in registered form, 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 maintained pursuant to Section
1002 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge
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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 a like aggregate principal amount
of definitive Securities of the same series and of like tenor of authorized
denominations.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and the registration of
transfers of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section
1002 for such purpose in a place of payment for such 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 in any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at any 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
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the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar or any transfer agent 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 304, 906, 1107 or 1604 not involving any transfer.
The Company shall not be required to (i) 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 the relevant notice of
redemption and ending at the close of business on the day for such mailing, or
(ii) 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.
Section 306. 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 of the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request 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 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
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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 any such
new Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and of like
tenor 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 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 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. Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, at the option of the Company, payment of
interest on any Security may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account designated by such Person pursuant to an
arrangement that is satisfactory to the Trustee and the Company. In the event
that payments shall be made by wire transfer, the Company shall arrange by 10:00
a.m. New York time on the Interest Payment Date for the wire transfer of money
in immediately available funds to the Trustee or Paying Agent. The Trustee shall
not be responsible or held liable for any loss resulting from a failure of the
federal funds wire system or any other occurrence beyond its control in
connection with wire transfers made pursuant to this Section.
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 may be paid by the Company, at its election in each
case, 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
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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. At the same time the Company 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. Upon receipt of written
notice of such Special Record Date from the Company the Trustee, 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 the address of such Holder 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 written 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 and Section 305,
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 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
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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 Sections 305 and 307) 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 309. Cancellation.
All Securities surrendered for payment, redemption, repayment,
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. All Securities so delivered shall be promptly canceled by the
Trustee. 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 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 canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be destroyed and
the Trustee shall furnish to the Company a certificate with respect to such
destruction.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 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 FOUR
Satisfaction and Discharge
Section 401. 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 any right to receive additional
amounts, as provided in Section 1005), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(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 306, 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 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities
(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 of the Company to the Trustee under Section 607, the obligations of
the Company to the Holders of any Securities of any series which are repayable
by the Company at the option of such Holders in accordance with Article Sixteen,
the obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the
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Trustee pursuant to Clause (1)(B) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 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; but
such money need not be segregated from other funds except to the extent required
by law.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means unless otherwise specified pursuant to Section 301, 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):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of, or any
premium on, any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one
or more series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has
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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
15% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of a decree or order for relief in respect
of the Company by a court having jurisdiction in the premises in an
involuntary case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian or sequestrator (or other similar
official) of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case
under the federal bankruptcy laws, as now or hereafter constituted, or
any other applicable federal or state bankruptcy, insolvency or similar
law, or the consent by it to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian or sequestrator
(or other similar official) of the Company or of any substantial part
of its property, the making by it of any assignment for the benefit of
creditors.
Section 502. Acceleration of Maturity, Rescission and Annulment.
If an Acceleration Event shall occur and be continuing with respect to
Securities of any series at the time Outstanding, then in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of and all accrued but unpaid interest on all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) and interest shall
become immediately due and payable. Upon payment of such amount, all obligations
of the Company in respect of payment of the principal of and interest on the
Securities of that series, shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a
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judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities of that
series;
(B) the principal of and any premium on any Securities of
that series which have become due otherwise than by such
declaration of acceleration, and any interest thereon at the
rate or rates prescribed therefor in such Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 503. 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 any premium on, any Security at the Maturity thereof; or
(3) default is made in the deposit of any sinking fund
payment, when and as due by the terms of a Security of such
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series; or
(4) default is made in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of series
of Securities other than such series), and such default or breach
continues 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 15% in principal
amount of the Outstanding Securities of such series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
the Company will, upon 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, sinking fund installment and interest,
including, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium, sinking fund
installment and on any overdue interest, computed from the date of default in
the payment of such 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 the Company fails to pay such amounts, the Trustee, in its own name
and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities, wherever situated.
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.
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Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceedings or any voluntary or involuntary case under the
federal bankruptcy laws, as now or hereafter constituted, relative to the
Company or any other obligor upon the Securities of any series or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment
of any overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal and any premium and interest owing and unpaid in respect of
the Securities of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders of Securities allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, custodian, sequestration or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities 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 of Securities, 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
607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security 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 of a Security in any
such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
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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 506. Application of Money or Property Collected.
Any money or property 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 or property 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 607;
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 or property 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; and
Third: To the payment of the remainder, if any, to
the Company or any other Person lawfully entitled thereto.
Section 507. 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
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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 508. 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 Sections
305 and 307) any interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) 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 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security 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 of Securities 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 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
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or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
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 of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities, as the case may be.
Section 512. Control by Holders of Securities.
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) subject to the provisions of Section 601, 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 Responsible
Officers of the Trustee, determine that the proceeding so directed
would be unjustly prejudicial to the Holders of Securities of such
series not joining in any such direction, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 513. 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
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default hereunder with respect to the Securities of 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. Such waiver shall become
effective upon the Trustee's receipt of an Officers' Certificate stating that
the requisite percentage of Holders have consented to such waiver and attaching
copies thereof.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders holding in
the aggregate more than 10% in principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Holder of any Security for the
enforcement of the payment of the principal of or any premium or interest on
any Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date, as the case may be).
Section 515. 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
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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 SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
correctness of the opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture but need not verify
the accuracy of the contents thereof.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this paragraph (c) shall not be construed to limit
the effect of paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith
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in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture; and
(4) 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.
(d) 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 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit to all
Holders of Securities of such series in the manner and to the extent provided
in Section 703(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of or any
premium or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 60 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 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(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,
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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 or as otherwise
expressly provided herein 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;
(d) before the Trustee acts or refrains from acting, the Trustee
may consult with counsel and the written 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;
(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 of Securities of any series 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;
(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; and
(h) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and reasonably believed
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by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
Section 604. 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 (i) accountable for the use or
application by the Company of Securities or the proceeds thereof, (ii)
accountable for any money paid to the Company, or upon the Company's direction,
if made under and in accordance with any provision of this Indenture or (iii)
responsible for the use or application of any money received by any Paying
Agent other than the Trustee.
Section 605. 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 608 and 613, 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 606. 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 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as may be
agreed upon by the Company and the Trustee (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
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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 in its individual capacity
and as Trustee, and each of its officers, directors, attorneys-in-fact
and agents for, and to hold it harmless against, any loss, claim,
liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties 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 benefit of the Holders of particular Securities. Such
lien shall survive the satisfaction and discharge of this Indenture and any
rejection or termination of this Indenture under any federal or state
bankruptcy law. If the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(5) or (6) has occurred, those
expenses (including the reasonable charges and expenses of its agents, attorney
and counsel) and its compensation for services shall be preferred over the
status of the Holders in any reorganization or similar proceeding and the
parties hereto, and the Holders, by their acceptance of the Securities, hereby
agree that such expenses, compensation and indemnity shall constitute expenses
of administration under any reorganization, bankruptcy or similar law.
Section 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series then,
within 90 days after ascertaining that it has such conflicting interest, and if
the Event of Default, but exclusive of any period of grace or requirement of
notice, to which such conflicting interest relates has not been cured or duly
waived or otherwise eliminated before the end of such 90-day period, the
Trustee shall either eliminate such conflicting interest or, except as
otherwise provided below in this Section, resign with respect to the Securities
of that series in the manner and with the effect hereinafter specified in this
Article and the Company shall take prompt steps to have a successor appointed
in the manner provided herein.
(b) (1) If the Trustee shall fail to comply with the
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provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit, in the manner and to the
extent provided in Section 703(c), to all Holders of Securities of
that series notice of such failure.
(2) Subject to the provisions of Section 514, unless the
Trustee's duty to resign is stayed as provided in Subsection (f) of
this Section, any Holder who has been a bona fide Holder of Securities
of any series referred to in Subsection (a) of this Section 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 such Trustee, and the appointment of a successor, if such Trustee
fails, after written request thereof by such Holder to comply with the
provisions of Subsection (a) of this Section.
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any series if
an Event of Default, but exclusive of any period of grace or any requirement of
notice, has occurred with respect to the Securities of that series and
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series other than that
series or is trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the Company are outstanding, unless such other
indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture,
provided that there shall be excluded from the operation of this
paragraph,
(A) this Indenture with respect to the Securities of any
series other than that series, and
(B) any other indenture or indentures under which other
securities, or certificates of interest or participation in
other securities, of the Company are outstanding and
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable
thereunder) are wholly unsecured and rank equally
and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act that differences exist between
the provisions of this
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Indenture with respect to Securities of that series
and one or more other series or the provisions of
such other indenture or indentures which are so
likely to involve a material conflict of interest as
to make it necessary in the public interest or for
the protection of investors to disqualify the
Trustee from acting as such under this Indenture
with respect to the Securities of that series and
such other series or under such other indenture or
indentures, or
(ii) the Company shall have sustained the burden
of proving, on application to the Commission and
after opportunity for hearing thereon, that
trusteeship under this Indenture with respect to the
Securities of that series and such other series or
such other indenture or indentures is not so likely
to involve a material conflict of interest as to
make it necessary in the public interest or for the
protection of investors to disqualify the Trustee
from acting as such under this Indenture with
respect to the Securities of that series and such
other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the Trustee and a
director or an executive officer, or both, of the Company but may not
be at the same time an executive officer of both the Trustee and the
Company; (ii) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a
director of the Company; and (iii) the Trustee may be designated by
the Company or by any underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent or depositary, or in any other similar capacity,
or, subject to the provisions of paragraph (1) of this Subsection, to
act as trustee, whether under an indenture or otherwise;
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(5) 10 % or more of the voting securities of the Trustee
is beneficially owned either by the Company or by any director,
partner or executive officer thereof, or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more of
such persons; or 10% or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the Company or by
any director, partner or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Securities issued under this Indenture and
securities issued under any other indenture under which the Trustee is
also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50%
or more of the voting securities of the Company;
(9) the Trustee owns, on the date the Event of Default,
but exclusive of any period of grace or requirement of notice, has
occurred upon the Securities of any series or any anniversary of such
default while such default upon such Securities remains outstanding,
in the capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this
Subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary
trustee of an estate which included them, the provisions of the
preceding sentence shall not apply, for a period of two
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years from the date of such acquisition, to the extent that such
securities included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly after the
dates of any such default upon the Securities of any series and
annually in each succeeding year that such default upon such
Securities continues, the Trustee shall make a check of its holdings
of such securities in any of the above-mentioned capacities as of such
dates. If the Company fails to make payment in full of the principal
of or any premium or interest on any of the Securities when and as the
same becomes due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its holdings of
such securities in any of the above-mentioned capacities as of the
date of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over
such securities vested in it, shall, but only so long as such failure
shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection; or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 613(b) the Trustee
shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this Subsection, and of Sections 512
and 513, the term "series" means a series, class or group of securities
issuable under an indenture or this Indenture pursuant to whose terms holders
of one such series may vote to direct the trustee, or otherwise take action
pursuant to a vote of such holders, separately from holders of another such
series; provided, that "series" shall not include any series of securities
issuable under an indenture (including any series of Securities issuable under
this Indenture) if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall
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be deemed to be "in default" when a default in payment of principal shall have
continued for 30 days or more and shall not have been cured; and (iii) the
Trustee shall not be deemed to be the owner or holder of (A) any security which
it holds as collateral security, as trustee or otherwise, for an obligation
which is not in default as defined in clause (ii) above, or (B) any security
which it holds as collateral security under this Indenture, irrespective of any
default hereunder, or (C) any security which it holds as agent for collection,
or as custodian, escrow agent or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to
the Company, means every person who, within one year prior to the time
as of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" means any director of a
corporation or any individual performing similar functions with
respect to any organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation,
a partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the
Securities of any series.
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(6) The term "executive officer" means the president,
every vice president, every trust officer, the cashier, the secretary
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this paragraph)
means such amount of the outstanding voting securities of such person
as entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount," when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(D) securities held in escrow if placed in escrow by the
issuer thereof;
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provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes and
provided, further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Securities of any series, or in the payment of
any sinking or purchase fund installment, the Trustee shall not be required to
resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that (i) the Event of Default, but exclusive of any period of
grace or requirement of notice, may be cured or waived during a reasonable
period and under the procedures described in such application, and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interests of
Holders of such Securities. The filing of such an application shall
automatically stay the performance of the duty to resign until the Commission
orders otherwise.
(g) If Section 310(b) of the Trust Indenture Act is amended at any
time after the date of this Indenture to change the circumstances under which a
Trustee shall be deemed to have a conflicting interest with respect to the
Securities of any series or to change any of the definitions in connection
therewith, this Section 608 shall be automatically amended to incorporate such
changes, unless such changes would cause any Trustee then acting as Trustee
hereunder with respect to any Outstanding Securities to be deemed to have a
conflicting interest, in which case such changes shall be incorporated herein
only to the extent that such changes (i) would not cause the Trustee to be
deemed to have a conflicting interest or (ii) are required by law.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall 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 exercise corporate
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trust powers, having a combined capital and surplus of at least $5,000,000 and
subject to supervision or examination by Federal or State authority; provided,
however, that if Section 310(a) of the Trust Indenture Act or the rules and
regulations of the Commission under the Trust Indenture Act at any time permit
a corporation organized and doing business under the laws of any other
jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder, provided that such corporation
shall have a combined capital and surplus of at least $5,000,000. If such
corporation 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 corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. Neither the Company nor any person
directly or indirectly controlling, controlled by or under common control with
the Company may serve as Trustee. 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 610. 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 611.
(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 611 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 608
with respect to the Securities of any series after written request
therefor by the Company or by any Holder of a
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Security of such series who has been a bona fide Holder of a Security
of such series for at least six months, unless the Trustee's duty to
resign has been stayed as provided in Section 608(f), or
(2) the Trustee shall cease to be eligible under Section
609 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 with
respect to any series of Securities or a decree or order for relief by
a court having jurisdiction in the premises shall have been entered in
respect of the Trustee in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or similar law, or
a decree or order by a court having jurisdiction in the premises shall
have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official
of the Trustee or its property or affairs, or any public officer shall
take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation, winding up or
liquidation, or
(4) the Trustee shall commence a voluntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a
receiver, custodian, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Trustee or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such action,
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 514, any
Holder of a Security 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
(including those who have been Holders for less than six months), 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
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<PAGE> 59
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 611. 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 611, 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 of Securities and
accepted appointment in the manner required by Section 611, any Holder of a
Security 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,
(including those who have been Holders for less than six months) 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
in the manner provided in Section 106. 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 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all series of 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, subject
nevertheless to its
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liens, if any, provided for in Section 607.
(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 (i) 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, (ii) 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 (iii) 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 as co-trustees 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) or (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.
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Section 612. 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 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in
a special account for the benefit of the Trustee individually, the Holders of
the Securities and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a voluntary or involuntary case had
been commenced in respect of the Company under the federal bankruptcy
laws, as now or hereafter constituted, or any other applicable federal
or state bankruptcy, insolvency or other similar law upon the date of
such default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
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Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any Person (other than
the Company) who is liable thereon, and (ii) the proceeds of
the bona fide sale of any such claim by the Trustee to a
third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to federal bankruptcy
laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other
similar law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such
property was so held prior to the beginning of such
three-month period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if such
claim was created after the beginning of such three-month
period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in Subsection (c) of
this Section, would occur within three months; or
(D) to receive payment on any claim referred to
in paragraph (B) or (C), against the release of any property
held as security for such claim as provided in paragraph (B)
or (C), as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders of Securities and the holders of other indenture
securities in such manner that the Trustee, the Holders of Securities and the
holders of other
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indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders of Securities and the holders
of other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the federal bankruptcy laws, as now
or hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, whether such distribution is made in cash,
securities or other property, but shall not include any such distribution with
respect to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceedings for reorganization is pending shall
have jurisdiction (i) to apportion among the Trustee, the Holders of Securities
and the holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole
or in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Holders of Securities and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this Subsection if and only
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if the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such
three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
of Securities at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction, as defined in
Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptance or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (c) of this Section.
(c) For the purposes of this Section only:
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(1) the term "default" means any failure to make payments
in full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding under any
other indenture (i) under which the Trustee is also trustee and (ii)
which contains provisions substantially similar to the provisions of
this Section;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand;
(4) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation; and
(5) the term "Company" means any obligor upon the
Securities; and
(6) in any case commenced under the Bankruptcy Act of
July 1, 1898, or any amendment thereto enacted prior to November 6,
1978, all references in this Section 6.13 to periods of three months
shall be deemed to be references to periods of four months.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents 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 or upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and if the Trustee is required to appoint one or
more Authenticating Agents with respect to any series of Securities, to
authenticate Securities of such series upon original issuance and to take such
other actions as are
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specified in Sections 303, 304, 305, 309, 906, 1107 and 1603, 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, having
a combined capital and surplus of not less than $1,000,000 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 such 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 such 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 provide notice to the
Holders of the series as to which the Authenticating Agent will serve as
provided in Section 106. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder,
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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.
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 607.
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 herein referred
to in the within-mentioned Indenture.
Bankers Trust Company
As Trustee
By
-----------------------------
As Authenticating Agent
By
-----------------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint in accordance with this Section an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect
to such series of Securities.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. 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 each April 15 and October
15 in each year, a list, in such form as the Trustee may
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reasonably require, containing all the information in the possession or control
of the Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders of Securities of each series for which the
Trustee acts as Trustee, as of a date not more than 15 days prior to the time
such list is furnished, 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, if the Company so desires, names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702. 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 of Securities (i)
contained in the most recent list furnished to the Trustee as provided in
Section 701 and (ii) received by the Trustee in its capacity as Paying Agent or
Security Registrar. The Trustee may (i) destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished, (ii) destroy
any information received by it as Paying Agent or Security Registrar hereunder
upon delivering to itself as Trustee, not earlier than April 15 or October 15,
a list containing the names and addresses of the Holders of Securities obtained
from such information since the delivery of the next previous list, if any, and
(iii) destroy any list delivered to itself as Trustee which was compiled from
information received by it as Paying Agent or Security Registrar hereunder upon
the receipt of a new list so delivered.
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case each such applicant must
hold Securities of such series) or with all Holders of Securities with respect
to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit to such other Holders, then the Trustee shall, within five
business days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information
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preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number
of Holders of Securities of such series or of all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series or of all
Securities, as the case may be, whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders of Securities of such series or of all Securities, as
the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(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 agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 702(b), regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
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Section 703. Reports by Trustee.
(a) Within 60 days after October 1 of each year commencing with
the year 1992, the Trustee shall transmit by mail to the Holders of Securities,
as provided in Subsection (c) of this Section, a brief report dated as of such
October 1 with respect to any of the following events which may have occurred
within the previous twelve months (but if no such event has occurred within
such period, no report need be transmitted):
(1) any change to its eligibility under Section 609
and its qualifications under Section 608;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of paragraphs
Section 608(c);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of such
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more than one-half of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Company (or by any other
obligor on the Securities of such series) to the Trustee in its
individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor,
except an indebtedness based upon a creditor relationship arising in
any manner described in Section 613(b) (2), (3), (4), or (6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of
such report;
(6) any additional issue of Securities which the
Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and which in
its opinion materially affects the Securities, except action in
respect of a default, notice of which has been or is to be withheld by
the Trustee in accordance with Section 602;
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provided, however, that if the Trust Indenture Act is amended subsequent to the
date hereof to eliminate the requirement of the Trustee's brief report, the
report required by this Section need not be transmitted to any Holders.
(b) The Trustee shall transmit to all Holders of Securities of any
series for which it acts as the Trustee, as provided in Subsection (c) of this
Section, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to Subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series for which it acts as the
Trustee, on property or funds held or collected by it as Trustee for such
series and which it has not previously reported pursuant to this Subsection to
be transmitted within 90 days after the time of any such advances, except that
the Trustee shall not be required (but may elect) to report such advances if
such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities of such series Outstanding at such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two
years preceding such transmission, filed their names and addresses
with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection
(b) of this Section, to each Holder of a Security whose name and
address is preserved at the time by the Trustee, as provided in
Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which any Securities of such series are listed, with the
Commission and with the Company. The Company will notify the Trustee when any
series of Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company
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is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations;
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent provided
in Section 703(c) with respect to reports pursuant to Section 703(a), such
summaries of any information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this paragraph, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any Person or
convey or transfer its properties and assets substantially as an entirety to
any Person, unless
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(1) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the Properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and
existing under the laws of the United States of America or any State
thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the Principal of and any premium and interest (including all
additional amounts, if any, payable pursuant to Section 1005) on all
the Securities and the performance and observance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and Article Nine and that all
conditions precedent herein provided for relating to such transactions
have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company, when
authorized by a Board Resolution, and the Trustee,
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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 (and if such
Events of Default are to be applicable to less than all series of
Securities, stating that such Events of Default are expressly being
included solely to be applicable to such series); or
(4) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination (a) shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision or (b) shall not
apply to any Security Outstanding; or
(5) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(6) to provide more specifically for the form or terms of
Securities as permitted by Sections 201 and 301 which may be issued at
original issue discount without provision for the periodic payment of
interest, including, without limitation, the terms relating to the
redemption of such Securities at the option of the Company, the
prepayment of such Securities at the option of the Holders thereof,
the conversion of such Securities, and the rights and remedies of the
Holders of such Securities upon the occurrence of an Event of Default;
(7) 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 611(b); or
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(8) to evidence any changes to Section 608, 609 or 703(a)
permitted by the terms thereof; or
(9) with respect to Securities which qualify as capital
under rules, regulations, orders, interpretive rulings and guidelines
of the Board of Governors of the Federal Reserve System, the Federal
Deposit Insurance Corporation or any successor regulatory bodies or
institutions as from time to time in effect, to provide for the terms
and conditions upon which such Securities may be issued and the terms
and characteristics of any such Securities; provided, however, that no
such supplemental indenture shall effect any change in any Securities
which may at the time be Outstanding under this Indenture; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with any provision of this Indenture, provided that such
action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(11) to add to or change or eliminate any provision of
this Indenture as shall be necessary or desirable in accordance with
any amendments to the Trust Indenture Act, provided such action shall
not adversely affect the interest of Holders of the Securities of any
Series in any material respect.
Section 902. 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 each series affected by such
supplemental indenture, 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 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 installment 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 change any
obligation of the Company
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to pay additional amounts pursuant to Section 1005 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), 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 502 or change
the coin or currency in which any Security or any premium or any
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 or repayment, or on or after
the Redemption Date or Repayment Date, as the case may be), 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 reduce the
requirements of Section 1304 for quorum or voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 1002, or
(4) modify any of the provisions of this Section or
Section 513, 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 of a Security with respect
to changes in the references to "the Trustee" and concomitant changes
in this Section, or the deletion of this proviso, in accordance with
the requirements of Sections 611(b) and 901(6), or
(5) adversely affect the right to repayment, if any, of
the Securities of any series at the option of the Holders thereof, or
(6) modify the provisions of Article Fifteen with respect
to subordination in a manner adverse to the Holder of any of the
Securities.
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
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Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities 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 903. 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 601) 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 and such supplemental indenture
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance with its terms, subject to customary exceptions. 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 904. 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 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. 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.
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ARTICLE TEN
Covenants
Section 1001. 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 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.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for such series an
office or agency where Securities of that series may be presented or surrendered
for payments, 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 and the
Holders of such series of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee with the address thereof, such presentations, and
surrenders of Securities of that series may be made and notices and demands may
be made or served at the Corporate Trust Office of the Trustee.
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 accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of such series of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise provided pursuant to Section 301, the Company initially appoints the
Trustee as Registrar and Paying Agent.
Section 1003. 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 and 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 or interest so
becoming due
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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, on each due date of the principal of and any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing 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:
(1) hold all sums held by it for the payment of the principal
of and any premium or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice in writing of any default by the
Company (or any other obligor upon the Securities of that series) in
the making of any payment of principal of and any premium or interest
on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
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 held by the
Company in trust for the payment of the principal of and any premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal and any premium or interest has become due and payable shall be paid
to
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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 an Authorized Newspaper in each Place of Payment, 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 1004. Officers' Certificate.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement signed by the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company, stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of the Company's performance under this Indenture has been made
under his supervision, and
(2) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof, and (b) no event has occurred
and is continuing which is, or upon notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and the
nature and status thereof.
The Company will deliver a written notice to the Trustee within 30 days
after any officer of the Company has knowledge of the occurrence of any event
which with the giving of notice or the lapse of time or both would become an
Event of Default under Section 501, its status and what action the Company is
taking or proposes to take with respect thereto.
Section 1005. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or
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in respect of, any Security of any series or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of and any premium or interest on the Securities of that series shall be made to
Holders of Securities of that series who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. 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 301 for Securities of any series)
in accordance with this Article.
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Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In the case of any redemption at the election of the
Company, the Company shall, at least 45 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such redemption, the applicable Redemption
Date, the series of Securities to be redeemed, and the principal amount of the
Securities to be redeemed; provided, however, that in the case of any redemption
at the election of the Company of less than all the Securities of any series
with the same (i) Stated Maturity, (ii) period or periods within which, price or
prices at which and terms and conditions upon which such Securities may or shall
be redeemed or purchased, in whole or in part, at the option of the Company or
pursuant to any sinking fund or analogous provision or repayable at the option
of the Holder and (iii) rate or rates at which the Securities bear interest, if
any, or formula pursuant to which such rate or rates accrue (collectively, the
"Equivalent Principal Terms"), 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 in writing of such Redemption
Date and of the principal amount of Securities of such series and with such
Equivalent Principal Terms to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities with Equivalent Principal Terms or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities with
Equivalent Principal Terms, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities with Equivalent Principal Terms of any
series 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 with Equivalent Principal Terms 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
with Equivalent Principal Terms of such series of a denomination larger than the
minimum authorized denomination for Securities with Equivalent Principal Terms
of that series. If so specified in the Securities with Equivalent Principal
Terms of a series, partial redemptions must be in an amount not less than
$1,000,000 principal amount of Securities.
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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.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date. At least two business days before the
mailing of notices to the Holders of the Securities, the Trustee shall also give
notice of redemption by (i) registered or certified mail, postage prepaid, (ii)
confirmed facsimile transmission or (iii) overnight delivery service to all
registered securities depositories then in the business of holding substantial
amounts of obligations of types comprising the Securities to be redeemed (such
depositories now being Depository Trust Company of New York, New York; Midwest
Securities Trust Company of Chicago, Illinois; Pacific Securities Depository
Trust Company of San Francisco, California; and Philadelphia Depository Trust
Company of Philadelphia, Pennsylvania).
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities with
Equivalent Principal Terms of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date unless the Company shall default in the payment of the
Redemption Price plus accrued interest,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such
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is the case, and
(7) the CUSIP number of the Securities, if any.
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 in which event the Company
shall provide the Trustee with the information required by Clauses (1) through
(7) above.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in immediately available funds 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 1106. 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 (if accrued interest is
to be paid to the Persons surrendering the relevant Securities for redemption)
with accrued interest to the Redemption Date, provided, however, that, unless
otherwise specified as contemplated by Section 301, installments of interest on
Securities 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 307.
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 1107. 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 Trustee so requires,
due endorsement by, or a written
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instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new 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 TWELVE
Sinking Funds
Section 1201. 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 301 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 1202. 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 1202. 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 under Clause (1) or (2) above in satisfaction of all or
any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment
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shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of any series or such shorter period as shall be satisfactory to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, 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 1202 and will also deliver to the Trustee any
Securities to be so delivered. The Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 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 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1301, to be held at such time
and at such place as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such
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series for any purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have given notice as provided in Section 106 within 21
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, the City of New
York for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in Subsection (a) of this Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (i) a Holder of one or more Outstanding Securities of
such series, or (ii) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture or the
Securities of any series expressly provides may be given, made, or taken by the
Holders of not less than 66-2/3% in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote 66-2/3% in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1302(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is
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scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture or the Securities
of any series expressly provides may be given, made or taken by the Holders of
not less than 66-2/3% in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid only by the affirmative vote of the
Holders of 66-2/3% in principal amount of the Outstanding Securities of that
series; and provided, further, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture or the
Securities of any series expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series. Any resolution
passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of
Securities of a series, whether or not present or represented at the meeting.
Section 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing
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the proxy witnessed or guaranteed by any trust company or bank. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
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meeting and showing that such notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FOURTEEN
Defeasance
Section 1401. Applicability of Article; Company's Option to Effect Defeasance.
Unless the Company elects, pursuant to Section 301, not to permit the
application of defeasance of the Securities of a series under Section 1402, then
the provision of such Section, together with the other provisions of this
Article Fourteen, 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 Section 1402 (if applicable) be applied
to the Outstanding Securities of such series upon compliance with the conditions
set forth below in this Article Fourteen.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of its option to effect a defeasance of the
Securities of a series pursuant 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 the date the conditions 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 1403 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties, and immunities
of the Trustee hereunder and (D) this Article Fourteen.
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Section 1403. Conditions to Defeasance.
The following shall be the conditions to application of Section 1402 to
the Outstanding Securities of a series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Fourteen 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 immediately available funds in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent 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, (i) the principal of and any premium and each installment of
principal of and any premium and interest on the Outstanding Securities
of such series on the Stated Maturity of such principal or installment
of principal or interest (including any additional amounts that may be
required pursuant to Section 1005); (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities
of such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities and
(iii) any amounts that may be payable at the option of the Holder on
any Repayment Date;
(2) Such defeasance shall not cause the Trustee for the
Securities of such series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to
any securities of the Company;
(3) Such 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;
(4) Such 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;
(5) The Company shall have delivered to the Trustee an Opinion
of Counsel stating that (i) the Company has received
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from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) 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 in the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred.
(6) Such 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 301;
(7) The Company shall have delivered to the trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the defeasance under
Section 1402 have been complied with; and
(8) 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 on the
date of such deposit or at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
Section 1404. 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 1003, 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 1404, the "Trustee") pursuant to Section 1403 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
(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 any premium 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
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tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1403 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series. Anything in this Article Fourteen 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 1403 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.
ARTICLE FIFTEEN
Subordination of Securities
Section 1501. Applicability of Article.
Subordinated Securities shall be subordinated to Senior Indebtedness of
the Company in accordance with their terms and also in accordance with this
Article, provided, however, that if any provision of any Subordinated Securities
shall conflict with any provision of this Article, the provision of such
Subordinated Securities shall govern.
Section 1502. Securities Subordinate to Senior Indebtedness.
(a) Subordinated Securities shall be subordinated in priority of
repayment and in every other respect to Senior Indebtedness of the Company. The
payment of principal, any premium and interest in respect of any Subordinated
Securities is expressly subordinated to all Senior Indebtedness which may at any
time and from time to time be outstanding and ranks on a parity with any other
Subordinated Indebtedness which may at any time and from time to time be
outstanding which shall be subordinate by virtue of provisions substantially
similar to those contained in this Article Fifteen.
(b) Upon any receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, whether or not pursuant to bankruptcy
laws, sale of all or substantially all of the assets (other than pursuant to
Article 8 hereof), dissolution, liquidation or any other marshaling of the
assets and liabilities of the Company, no amount shall be paid by the Company,
in respect of the principal, premium, if any, or interest on any Subordinated
Securities unless and until all Senior Indebtedness shall have been paid in full
together with all interest thereon and all other amounts payable in respect
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thereof.
(c) In the event of any default in the payment of any Senior
Indebtedness and during the continuance of any such default, no amount shall be
paid by the Company in respect of the principal, premium, if any, or interest on
any Subordinated Securities.
(d) In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by any Subordinated Securities, to
the payment of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by the Trustee or any Holder in contravention
of any of the terms hereof such payment or distribution or security shall be
received in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness at the time outstanding
in accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all such Senior Indebtedness in full. In the event of
the failure of the Trustee or any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
(e) Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of any Subordinated
Securities shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Subordinated
Securities shall have been paid in full, and such payments or distributions
received by such Holders, by reason of such subrogation, of cash, securities or
other property which otherwise would be paid or distributed to the holders of
Senior Indebtedness shall, as between the Company and its creditors other than
the holders of Senior Indebtedness, on the one hand, and such Holders, on the
other hand, be deemed to be a payment by the Company on account of Senior
Indebtedness and not on account of the Subordinated Securities.
(f) The provisions of this Article Fifteen are solely for the purpose
of defining the relative rights of the holders of Senior Indebtedness on the one
hand and the Holders of any Subordinated Securities on the other hand, and
nothing herein
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shall impair, as between the Company and the Holder of any Security, the
obligation of the Company, which is unconditional and absolute, to pay to the
Holder thereof the principal, premium, if any, and interest thereon in
accordance with its terms, nor shall anything herein prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law or hereunder upon default hereunder, subject to the rights, if
any, under this Article Fifteen of holders of Senior Indebtedness to receive
cash, property or securities, otherwise payable or deliverable to Holders of any
Subordinated Securities.
Section 1503. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Company to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired, by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture regardless of any knowledge thereof with which any such holder
may have or be otherwise charged.
Section 1504. Trustee Authorized to Effectuate Subordination.
Each Holder of Subordinated Securities, by its acceptance thereof,
authorizes the Trustee in its behalf to take such action as may be necessary or
appropriate to effectuate, as between the Holders of Subordinated Securities and
the holders of Senior Indebtedness the subordination as provided in the terms of
such Subordinated Securities and this Article Fifteen and appoints the Trustee
its attorney-in-fact for any and all such purposes and irrevocably authorizes
the Trustee in its behalf to file a proof of claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of such
Subordinated Securities.
Each Holder of Subordinated Securities, by its acceptance thereof,
waives all notice of the acceptance of the subordination provisions contained
herein and in the Subordinated Securities by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon such provisions.
Section 1505. Trustee May Hold Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article Fifteen in respect of any Senior Indebtedness at any time held by it in
its individual capacity to the same extent as any other holder of Senior
Indebtedness and nothing contained herein shall affect the right of the Trustee
to retain for its
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own account payments made on Senior Indebtedness held by the Trustee for its own
account.
Section 1506. Trustee and Holders of Securities May Rely on Certificate of
Liquidating Agent; Trustee May Require Further Evidence as to Ownership of
Senior Indebtedness; Trustee Not Fiduciary to Holders of Senior Indebtedness.
Upon any payment or distribution of assets of the Company referred to
in this Article Fifteen, the Trustee and the Holders of any Subordinated
Securities shall be entitled to rely upon an order or decree made by any court
of competent jurisdiction in which such dissolution or winding up or liquidation
or reorganization or arrangement proceedings are pending or upon a certificate
of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders, for the purpose of ascertaining the persons entitled to participate
in such indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fifteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall be entitled to
rely, subject to the provisions of Section 601, upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payments or distributions pursuant to this
Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such Person under this Article Fifteen, and if such evidence is
not furnished, the Trustee may offer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
Trustee, however, shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness.
Section 1507. Permitted Payments.
Nothing contained in this Article or elsewhere in this Indenture, or in
the Securities or any series thereof, shall prevent (a) the Company, at any time
except under the conditions described in Section 1502 from making payments at
any time of principal of and premium, if any, or interest, if any, on Securities
of any series of from depositing with the Trustee or any paying Agent moneys for
such payments, or (b) the application
88
<PAGE> 97
by the Trustee or any Paying Agent of any moneys deposited with it under this
Indenture to the payment of or on account of the principal of and premium, if
any, or interest, if any, on Securities of any series to the Holders of
Securities of such series entitled thereto if such payment would not have been
prohibited by the terms of the Securities and the provisions of Section 1502 on
the date such moneys were so deposited.
Section 1508. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of money to or by the Trustee and shall be entitled conclusively to
assume that no such facts exist and that no event specified in Section 1502 has
happened, until three Business Days after the Trustee shall have received an
Officers' Certificate to that effect or notice in writing to that effect signed
by or on behalf of the holder or holders, or their representatives, of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding. The Company shall give
prompt written notice to the Trustee and to the Paying Agent of any facts which
would prohibit the payment of money to or by the Trustee or any Paying Agent.
ARTICLE SIXTEEN
Repayment at the Option of Securityholders
Section 1601. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise contemplated by Section 301 for Securities
of such series) in accordance with this Article, provided, however, that if any
provision of any series of Securities shall conflict with any provision of this
Article, the provision of such series of Securities shall govern.
Section 1602. Repayment of Securities.
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
89
<PAGE> 98
Section 1603. Exercise of Option; Notice.
Each Holder desiring to exercise his option for repayment shall, as
conditions to such repayment, surrender the Security to be repaid together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 15 nor more than 30 days prior to
the Repayment Date. Such notice, which shall be irrevocable, shall identify the
Security to be repaid and shall specify the principal amount of such Security to
be repaid, which shall be not less than the minimum authorized denomination for
such Security or an integral multiple thereof and, in the case of a partial
repayment of the Security the denomination or denominations of the Security or
Securities with Equivalent Principal Terms to be issued to the Holder for the
portion of the principal of the Security surrendered which is not to be repaid.
Any Security which is to be repaid only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities with Equivalent Principal Terms of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
Section 1604. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, on the Repayment Date, become due and payable at the Repayment Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Repayment Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for repayment
in accordance with Section 1603 such Security shall be paid by the Company at
the Repayment Price, together with accrued interest to the Repayment Date;
provided, however, that, unless otherwise specified as contemplated by Section
301, installments of interest on Securities whose Stated Maturity is on or prior
to the Repayment Date shall be payable to the Holders of such Securities, or one
or more Predecessor
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<PAGE> 99
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
On or prior to any Repayment 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 1003) an amount of
money in immediately available funds sufficient to pay the Repayment Price of,
and accrued interest, if any, on all the Securities which are to be repaid on
that date.
If any Security duly surrendered for repayment shall not be so paid,
the principal and any premium shall, until paid, bear interest from the
Repayment Date at the rate prescribed therefor in the Security.
ARTICLE SEVENTEEN
Conversion of Securities
Section 1701. Applicability of Article.
Securities of any series which are convertible into shares of Common
Stock or other securities of the Company as specified by the terms thereof as
contemplated by Section 301 shall be convertible in accordance with their terms
and also (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article, provided, however,
that if any provision of any series of Securities shall conflict with any
provision of this Article, the provision of such series of Securities shall
govern.
Section 1702. Terms of Convertible Securities.
The conversion terms of any series of Securities convertible into
Common Stock or other securities of the Company shall be set forth in a Board
Resolution or a supplemental indenture, or both, by which will be established:
(1) The conversion price or conversion rate and the manner in
which the number of shares of Common Stock or other securities issuable
in respect of any Security upon any conversion shall be computed.
(2) Whether and under what circumstances the conversion price
or conversion rate will be adjusted to reflect events such as, without
limitation, (i) issuance of additional Common Stock or other securities
with or without consideration, (ii) granting of rights to subscribe
for, or
91
<PAGE> 100
any rights or options to purchase, Common Stock or other securities or
any stock or other securities convertible into or exchangeable for
Common Stock, (iii) any distribution of the Company's assets upon or
with respect to its Common Stock, as a liquidating or partial
liquidating dividend, or other than as a dividend payable out of
earnings or any surplus legally available for dividends (iv)
subdivision of the Company's outstanding shares of Common Stock into a
greater number of shares, or combination of the outstanding shares of
Common Stock of the Company into a smaller number of shares (v)
(3) The provision, if any, to be made in respect to conversion
of Securities in case of any capital reorganization or reclassification
of the Common Stock of the Company, or consolidation or merger of the
Company with another corporation, or the sale of all or substantially
all of its assets to another corporation.
(4) The provision for notice, if any, to Holders of Securities
of any convertible series of certain actions of the Company, such as,
by way of illustration only and without limitation, (i) declaration of
a dividend (or any other distribution) on its Common Stock payable
otherwise than out of its earned surplus, (ii) granting to holders of
Common Stock or other securities of rights to subscribe for or purchase
any shares of Common Stock or of any other rights; (iii) any capital
reorganization or reclassification of the capital stock of the Company
or of any consolidation or merger of the Company with another
corporation, or of the sale of all or substantially all of its assets
to another corporation; or (iv) voluntary or involuntary dissolution,
liquidation or winding up of the Company.
(5) Such other terms, conditions, rights, restrictions,
qualifications and limitations as may be applicable to the conversion
rights appurtenant to any Securities of a convertible series.
Section 1703. Manner of Exercise.
Except as may be otherwise provided in the terms of the Securities of
any convertible series, the Holder shall exercise conversion rights of a
convertible Security by delivery of written notice of his election to convert
such Security or a specified principal amount thereof (a multiple of $
1,000.00), and shall surrender the same (properly endorsed or assigned for
transfer, if the Board of Directors of the Company shall so require) to the
Company at its principal office or at the office of any conversion agent
appointed by the Company. If the last day for the exercise of the conversion
right is not a Business Day, then such conversion right may be exercised up to
the close
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<PAGE> 101
of business on the next succeeding Business Day.
For purposes of this Article, unless the context otherwise requires,
all provisions relating to the conversion of Securities shall relate, in the
case of any Security converted or to be converted only in part, to the portion
of the principal of such Security which has been or is to be converted. In the
case of any Security which is surrendered for conversion only in part, the
Company shall execute and deliver to the Holder of such Security, without
service charge, a new Security or Securities of any authorized denomination or
denominations as requested by such Holder in aggregate principal amount equal to
the unconverted portion of the principal of the Security so surrendered. For all
purposes of this Article, the "date of conversion" of any Security shall be
deemed to be the Business Day on which, at or prior to the close of business,
delivery of such notice or the surrender of the Security (whichever shall last
occur) shall be made, and for all purposes the rights of a converting Holder of
a Security as such Holder shall cease, and the Person or Persons in whose name
or names the certificates for the shares of Common Stock or other securities
issuable upon such conversion are to be issued shall be deemed to have become
the record holder or holders of such shares of Common Stock or other securities,
at the close of business on the date of conversion.
"Common Stock", when used in this Article with reference to the Common
Stock into which Securities are convertible, shall mean only Common Stock of the
class existing on the issue date of Securities and any stock into which such
Common Stock may thereafter have been changed.
Section 1704. Issuance of Common Stock or Other Securities.
Upon receipt by the Company of any such notice by a Holder of a
Security of his election to convert any such Security, and upon the surrender of
the Security, the Company shall, as soon as may be practicable, and in any event
within thirty full business days after the date of conversion, execute and
deliver to such Holder a certificate or certificates for the number of full
shares of Common Stock or other securities sufficient for the conversion of such
Security. The stock certificates so delivered shall be in the name of the
registered Holder, if any, of the Security so surrendered for conversion, or in
such other name or names as the person surrendering such Security may direct.
The Company shall pay the amount of any and all taxes which may be imposed in
respect of any issue or delivery of stock certificates under this Article,
except that, in case such stock certificates shall be issued in a name or names
other than the name of the registered Holder of the Security so surrendered, all
stock transfer taxes that may be payable in respect thereof shall be paid by the
person surrendering such Security for conversion.
93
<PAGE> 102
The Company shall not be required upon any such conversion to issue a
certificate representing any fraction of a share of Common Stock, but, in lieu
thereof, may either pay cash for such fraction of a share at the fair value
thereof as determined by the Board of Directors from time to time in its
absolute discretion or issue a non-dividend bearing and non-voting instrument,
in form approved by the Board of Directors, evidencing a fractional right to
receive a certificate for one share of Common Stock when presented with other
like certificates together representing rights to at least one such share. Such
instrument may contain such terms as shall be fixed by the Board of Directors
and may become void after a reasonable period, not less than three years from
the date of issuance, to be specified in such instrument.
All shares of Common Stock issuable upon conversion of any Security of
a convertible series shall be fully paid and nonassessable.
Section 1705. Trustee and Conversion Agents Not Liable.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the conversion price, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Common Stock or of any securities or cash
or other property which may at any time be issued or delivered upon the
conversion of any Security, or makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to make any cash payment or to issue, transfer or deliver
any shares of Common Stock or stock certificates or other securities or property
upon the surrender of any Security for the purpose of conversion, or, subject to
Section 601, with any of the covenants of the Company contained in this Article
Seventeen. Both the Trustee and the conversion agent are entitled to rely and
shall be fully protected in their reliance upon any Officers' Certificate
delivered pursuant to this Article Seventeen.
94
<PAGE> 103
ARTICLE EIGHTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 1801. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
Person, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor Person, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or inferred therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
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.
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<PAGE> 104
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 written above.
FIRST ALABAMA BANCSHARES, INC.
By: /s/ Richard D. Horsley
------------------------------------
Vice Chairman and Executive
Financial Officer
Attest:
/s/ Burton Barnes
- --------------------------
Secretary
BANKERS TRUST COMPANY
By: /s/ Mark G. Walsh
------------------------------------
Assistant Vice President
Attest:
/s/ Valerie Dunbar
- --------------------------
Assistant Secretary
96
<PAGE> 105
STATE OF ALABAMA )
COUNTY OF JEFFERSON ) ss.
On the 7th day of December, 1992, before me, the undersigned Notary
Public in and for said County and State, personally appeared Richard D. Horsley,
known to me to be the Vice Chairman and Executive Financial Officer of First
Alabama Bankshares, Inc., one of the corporations described in and which
executed the foregoing instrument, and known to me to be the person who executed
the within instrument on behalf of First Alabama Bancshares, Inc., that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; and that he acknowledged to me that First Alabama Bancshares,
Inc. executed the within instrument pursuant to its bylaws or a resolution of
its board of directors.
Sworn to and subscribed before me this 7th day of December, 1992.
Witness my hand and official seal.
/S/ Juanita P. Ivey
---------------------------------
Notary Public in and for said
County and State
97
<PAGE> 106
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.
On the 7th day of December, 1992, before me, the undersigned Notary
Public in and for said County and State, personally appeared Mark G. Walsh,
known to me to be the Assistant Vice President of Bankers Trust Company, one of
the corporations described in and which executed the foregoing instrument, and
known to me to be the person who executed the within instrument on behalf of
Bankers Trust Company; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; and that he
acknowledged to me that Bankers Trust Company executed the within instrument
pursuant to its bylaws or a resolution of its board of directors.
Sworn to and subscribed before me this 7th day of December, 1992.
Witness my hand and official seal.
/s/ Marjorie Stanley
---------------------------------
Notary Public in and for said
County and State
98
<PAGE> 1
EXHIBIT 5.1
LANGE, SIMPSON, ROBINSON & SOMERVILLE LLP
ATTORNEYS & COUNSELORS
417 20th STREET NORTH, SUITE 1700
BIRMINGHAM, ALABAMA 35203-3272
TELEPHONE (205) 250-5000
FACSIMILE (205) 250-5034
August 27, 1999
Regions Financial Corporation
417 North 20th Street
Birmingham, Alabama 35203
Gentlemen:
Regions Financial Corporation (the "Company"), a corporation organized and
existing under and pursuant to the laws of the state of Delaware, proposes to
issue and sell up to $200,000,000 face amount of its subordinated, unsecured
notes, bonds, debentures, or other evidences of indebtedness (the "Subordinated
Debt Securities"), under a trust indenture entered into between the Company and
Bankers Trust Company (the "Trust Indenture").
In connection with this proposal, we have examined the following documents
and items:
The certificate of incorporation of the Company as most recently
amended.
The by-laws of the Company as most recently amended.
The form of Trust Indenture as entered into between the Company and
Bankers Trust Company.
Such documents evidencing the actions taken to date by the
stockholders of the Company and the board of directors of the Company as we
have considered necessary and appropriate to review in order to render this
opinion.
Based upon the foregoing and with regard to such legal considerations as we
deem relevant to this opinion, it is our opinion that:
The Company has the corporate power and authority to issue the
Subordinated Debt Securities.
The Board of Directors has the authority to authorize the issuance of
the Subordinated Debt Securities and to establish the term of the
Subordinated Debt Securities, including but not limited to: (1) the
specific title of the Subordinated Debt Securities; (2) the aggregate
principal amount of the Subordinated Debt Securities to be issued (but not
exceeding $200,000,000); (3) the denominations in which the Subordinated
Debt Securities are authorized to be issued; (4) any sinking fund
provisions; (5) the percentage of the principal amount at which the
Subordinated Debt Securities will be issued; (6) the date on which the
Subordinated Debt Securities will mature; (7) the rate or rates per annum
or the method of determining such rate or rates, if any, at which the
Subordinated Debt Securities will bear interest (which may be fixed or
variable); (8) any premium payments; (9) the times at which any such
interest will be payable; (10) any provisions relating to optional or
mandatory redemption of the Subordinated Debt Securities at the option of
<PAGE> 2
the Company or the holders of the Subordinated Debt Securities or pursuant
to sinking fund or analogous provisions; (11) any term by which such
Subordinated Debt Securities may be convertible into common stock or other
securities of the Company; (12) any provisions relating to the conversion
or exchange of the Subordinated Debt Securities into Subordinated Debt
Securities of another series; (13) the place or places at which the Company
will make payments of principal (and premium, if any) and interest, if any,
and the method of such payment; and (14) any additional covenants and
events of default and the remedies with respect thereto not currently set
forth in the Trust Indenture.
The approval of stockholders of the Company is not required for the
issuance of the Subordinated Debt Securities.
Issuance of the Subordinated Debt Securities is not prohibited by and
will not contravene any provision of the Certificate of Incorporation or
the by-laws of the Company or any provision of the General Corporation Law
of Delaware.
In addition, it is our opinion that, upon (a) authorization, execution, and
delivery of a board resolution or additional supplemental indenture, as
contemplated by section 301 of the Trust Indenture, establishing the terms of
the Subordinated Debt Securities and the sales price thereof, (b) execution and
delivery of the Subordinated Debt Securities as contemplated by Section 303 of
the Trust Indenture, (c) authentication of the Subordinated Debt Securities as
contemplated by Section 303 of the Trust Indenture, and (d) payment for the
Subordinated Debt Securities, the Subordinated Debt Securities will be validly
issued and will represent binding obligations of the Company.
The binding effect of the Trust Indenture and the Subordinated Debt
Securities may be subject to or limited by applicable bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting the
rights of creditors generally.
We consent to the inclusion of this opinion as an exhibit to the
registration statement and to the reference to this firm in the prospectus under
the caption "Legal Opinions".
Yours truly,
/s/ LANGE, SIMPSON, ROBINSON & SOMERVILLE LLP
<PAGE> 1
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES EXCLUDING AND INCLUDING
INTEREST ON DEPOSITS
(IN THOUSANDS)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
--------------------- ----------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---------- ---------- ---------- ---------- ---------- ---------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Net income................................. $ 278,520 $ 243,421 $ 421,712 $ 397,529 $ 317,859 $ 276,475 $248,453
Provision for income taxes................. 144,809 125,296 213,590 197,222 156,008 134,529 115,853
---------- ---------- ---------- ---------- ---------- ---------- --------
Earnings before taxes...................... 423,329 368,717 635,302 594,751 473,867 411,004 364,306
Fixed charges:
Interest expense (excluding interest
on deposits)........................... 147,002 86,637 207,914 142,594 115,615 121,209 76,343
Interest portion of rentals (33%)........ 2,938 3,292 6,512 4,943 4,239 3,613 3,570
---------- ---------- ---------- ---------- ---------- ---------- --------
Total fixed charges...................... 149,940 89,929 214,426 147,537 119,854 124,822 79,913
---------- ---------- ---------- ---------- ---------- ---------- --------
Earnings before taxes and fixed charges.... 573,269 458,646 849,728 742,288 593,721 535,826 444,219
Ratio of earnings to fixed charges......... 3.82 5.10 3.96 5.03 4.95 4.29 5.56
========== ========== ========== ========== ========== ========== ========
Net income................................. 278,520 243,421 421,712 397,529 317,859 276,475 248,453
Provision for income taxes................. 144,809 125,296 213,590 197,222 156,008 134,529 115,853
---------- ---------- ---------- ---------- ---------- ---------- --------
Earnings before taxes...................... 423,329 368,717 635,302 594,751 473,867 411,004 364,306
Fixed charges:
Interest expense (including interest on
deposits).............................. 659,714 616,729 1,272,968 1,097,376 942,459 861,242 598,160
Interest portion of rentals (33%)........ 2,938 3,292 6,512 4,943 4,239 3,613 3,570
---------- ---------- ---------- ---------- ---------- ---------- --------
Total fixed charges...................... 662,652 620,021 1,279,480 1,102,319 946,698 864,855 601,730
---------- ---------- ---------- ---------- ---------- ---------- --------
Earnings before taxes and fixed charges.... 1,058,981 988,738 1,914,782 1,697,070 1,420,565 1,275,859 966,036
Ratio of earnings to fixed charges......... 1.64 1.59 1.50 1.54 1.50 1.48 1.61
========== ========== ========== ========== ========== ========== ========
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in
Post-Effective Amendment No. 1 to the Registration Statement (Form S-3 No.
33-59735) and related Prospectus of Regions Financial Corporation for the
registration of $200,000,000 of subordinated debt securities and to the
incorporation by reference therein of our report dated March 11, 1999 with
respect to the consolidated financial statements of Regions Financial
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1998 filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Birmingham, Alabama
August 26, 1999
<PAGE> 1
EXHIBIT 24.1
REGIONS FINANCIAL CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned directors and officers
of REGIONS FINANCIAL CORPORATION (the "Corporation") hereby constitute and
appoint Richard D. Horsley and Samuel E. Upchurch, Jr., and each of them, the
true and lawful agent and attorney-in-fact of the undersigned, with full power
of substitution and resubstitution, and with full power and authority in said
agents and attorneys-in-fact, and in any one of them, to sign for the
undersigned and in their respective names as directors and officers of the
Corporation, one or more Registration Statements to be filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to the registration of $200,000,000 of subordinated debt securities and to sign
any and all amendments to such Registration Statements.
SIGNATURE TITLE DATE
- ------------------------- ----------------------------- -----------------
/s/ Carl E. Jones, Jr.
- --------------------------- President and Chief Executive July 21, 1999
Carl E. Jones, Jr. Officer and Director
(principal executive officer)
/s/ Richard D. Horsley
- --------------------------- Vice Chairman of the Board and July 21, 1999
Richard D. Horsley Executive Financial Officer
and Director
(principal financial officer)
/s/ Robert P. Houston
- --------------------------- Executive Vice President and July 21, 1999
Robert P. Houston Comptroller
(principal accounting officer)
/s/ Sheila S. Blair
- --------------------------- Director July 21, 1999
Sheila S. Blair
/s/ James B. Boone, Jr.
- --------------------------- Director July 21, 1999
James B. Boone, Jr.
/s/ James S.M. French
- --------------------------- Director July 21, 1999
James S.M. French
/s/ Olin B. King
- --------------------------- Director July 21, 1999
Olin B. King
/s/ J. Stanley Mackin
- --------------------------- Chairman of the Board July 21, 1999
J. Stanley Mackin and Director
/s/ Michael W. Murphy
- --------------------------- Director July 21, 1999
Michael W. Murphy
<PAGE> 2
/s/ Henry E. Simpson
- --------------------------- Director July 21, 1999
Henry E. Simpson
/s/ Lee J. Styslinger, Jr.
- --------------------------- Director July 21, 1999
Lee J. Styslinger, Jr.
/s/ W. Woodrow Stewart
- --------------------------- Director July 21, 1999
W. Woodrow Stewart
/s/ John H. Watson
- --------------------------- Director July 21, 1999
John H. Watson
/s/ Robert J. Williams
- --------------------------- Director July 21, 1999
Robert J. Williams
/s/ C. Kemmons Wilson, Jr.
- --------------------------- Director July 21, 1999
C. Kemmons Wilson, Jr.
<PAGE> 1
-----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
------
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
REGIONS FINANCIAL CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 63-0589368
(State or other jurisdiction of (I.R.S. employer identification no.)
Incorporation or organization)
417 NORTH 20TH STREET
BIRMINGHAM, AL 35203
(205) 326-7100
(Address, including zip code, and telephone number of principal
executive offices)
SUBORDINATED DEBT SECURITIES OF REGIONS FINANCIAL CORPORATION
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
<TABLE>
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
</TABLE>
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3.-15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers
Trust Company dated August 6, 1998,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
September 25, 1998, and Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated December 18,
1998, copies attached.
EXHIBIT 2 - Certificate of Authority to commence
business - Incorporated herein by reference
to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise
corporate trust powers Incorporated herein
by reference to Exhibit 2 filed with Form
T-1 Statement, Registration No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company,
as amended on June 22, 1999. Copy attached.
-2-
<PAGE> 3
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. Incorporated
herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No.
22-18864.
EXHIBIT 7 - The latest report of condition of Bankers
Trust Company dated as of March 31, 1999.
Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 20th day
of August, 1999
BANKERS TRUST COMPANY
By: /s/ Jackie Bartnick
-----------------------
Jackie Bartnick
Vice President
-4-
<PAGE> 5
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION
8005 OF THE BANKING LAW," dated September 16, 1998, providing for an increase in
authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares
with a par value of $10 each designated as Common Stock and 1,000 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each
designated as Common Stock and 1,500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York, this 25TH day of SEPTEMBER in the Year of our Lord one thousand nine
hundred and NINETY-EIGHT.
Manuel Kursky
-------------------------------
Deputy Superintendent of Banks
<PAGE> 6
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
----------------------------
Under Section 8007
Of the Banking Law
----------------------------
Bankers Trust Company
130 Liberty Street
New York, N.Y. 10006
Counterpart Filed in the Office of the Superintendent of Banks, State of New
York, August 31, 1998
<PAGE> 7
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary and a Vice President and an Assistant
Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by
the Superintendent of Banks of the State of New York on the March 5, 1903.
3. The text of the organization certificate, as amended
heretofore, is hereby restated without further amendment or change to read as
herein set forth in full, to wit:
"Certificate of Organization
of
Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A.
Blair, James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A.
Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H.
Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C.
Young, all being persons of full age and citizens of the United States, and a
majority of us being residents of the State of New York, desiring to form a
corporation to be known as a Trust Company, do hereby associate ourselves
together for that purpose under and pursuant to the laws of the State of New
York, and for such purpose we do hereby, under our respective hands and seals,
execute and duly acknowledge this Organization Certificate in duplicate, and
hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is
Bankers Trust Company.
II. The place where its business is to be transacted is the City
of New York, in the State of New York.
III. Capital Stock: The amount of capital stock which the
corporation is hereafter to have is Three Billion One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into
Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common Stock and
1,000 shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock.
(a) Common Stock
<PAGE> 8
1. Dividends: Subject to all of the rights of the Series
Preferred Stock, dividends may be declared and paid or set apart for payment
upon the Common Stock out of any assets or funds of the corporation legally
available for the payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with
respect to the Series Preferred Stock or with respect to any series of the
Series Preferred Stock, the Common Stock shall have the exclusive right to vote
for the election of directors and for all other purposes, each holder of the
Common Stock being entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up
of the corporation, whether voluntary or involuntary, and after the holders of
the Series Preferred Stock of each series shall have been paid in full the
amounts to which they respectively shall be entitled, or a sum sufficient for
the payment in full set aside, the remaining net assets of the corporation shall
be distributed pro rata to the holders of the Common Stock in accordance with
their respective rights and interests, to the exclusion of the holders of the
Series Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the
corporation shall be entitled, as such, as a matter of right, to subscribe for
or purchase any part of any new or additional issue of stock of any class or
series whatsoever, any rights or options to purchase stock of any class or
series whatsoever, or any securities convertible into, exchangeable for or
carrying rights or options to purchase stock of any class or series whatsoever,
whether now or hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from
time to time by the Board of Directors as herein provided in one or more series.
The designations, relative rights, preferences and limitations of the Series
Preferred Stock, and particularly of the shares of each series thereof, may, to
the extent permitted by law, be similar to or may differ from those of any other
series. The Board of Directors of the corporation is hereby expressly granted
authority, subject to the provisions of this Article III, to issue from time to
time Series Preferred Stock in one or more series and to fix from time to time
before issuance thereof, by filing a certificate pursuant to the Banking Law,
the number of shares in each such series of such class and all designations,
relative rights (including the right, to the extent permitted by law, to convert
into shares of any class or into shares of any series of any class), preferences
and limitations of the shares in each such series, including, buy without
limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which
number may at any time, or from time to time, be increased or decreased
by the Board of Directors, notwithstanding that shares of the series
may be outstanding at the time of such increase or decrease, unless the
Board of Directors shall have otherwise provided in creating such
series) and the distinctive designation thereof;
(ii) The dividend rate on the shares of such series,
whether or not dividends on the shares of such series shall be
cumulative, and the date or dates, if any, from which dividends thereon
shall be cumulative;
(iii) Whether or not the share of such series shall be
redeemable, and, if redeemable, the date or dates upon or after which
they shall be redeemable, the amount
<PAGE> 9
or amounts per share (which shall be, in the case of each share, not
less than its preference upon involuntary liquidation, plus an amount
equal to all dividends thereon accrued and unpaid, whether or not
earned or declared) payable thereon in the case of the redemption
thereof, which amount may vary at different redemption dates or
otherwise as permitted by law;
(iv) The right, if any, of holders of shares of such
series to convert the same into, or exchange the same for, Common Stock
or other stock as permitted by law, and the terms and conditions of
such conversion or exchange, as well as provisions for adjustment of
the conversion rate in such events as the Board of Directors shall
determine;
(v) The amount per share payable on the shares of such
series upon the voluntary and involuntary liquidation, dissolution or
winding up of the corporation;
(vi) Whether the holders of shares of such series shall
have voting power, full or limited, in addition to the voting powers
provided by law and, in case additional voting powers are accorded, to
fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and
any qualifications, limitations or restrictions of such rights and
privileges of such series, provided, however, that no such rights,
privileges, qualifications, limitations or restrictions shall be in
conflict with the organization certificate of the corporation or with
the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of which there are shares
outstanding.
All shares of Series Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series issued at
different times may differ as to dates, if any, from which dividends thereon may
accumulate. All shares of Series Preferred Stock of all series shall be of equal
rank and shall be identical in all respects except that to the extent not
otherwise limited in this Article III any series may differ from any other
series with respect to any one or more of the designations, relative rights,
preferences and limitations described or referred to in subparagraphs (I) to
(vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock
of each series shall be declared and paid or set apart for payment before any
dividends shall be declared and paid or set apart for payment on the Common
Stock with respect to the same quarterly dividend period. Dividends on any
shares of Series Preferred Stock shall be cumulative only if and to the extent
set forth in a certificate filed pursuant to law. After dividends on all shares
of Series Preferred Stock (including cumulative dividends if and to the extend
any such shares shall be entitled thereto) shall have been declared and paid or
set apart for payment with respect to any quarterly dividend period, then and
not otherwise so long as any shares of Series Preferred Stock shall remain
outstanding, dividends may be declared and paid or set apart for payment with
respect to the same quarterly dividend period on the Common Stock out the assets
or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal
rank, preference and priority as to dividends irrespective of whether or not the
rates of dividends to which the same shall be entitled shall be the same and
when the stated dividends are not paid in full, the shares of all series of the
Series Preferred Stock shall share ratably in the payment thereof in accordance
with the sums which would by payable on such shares if all dividends were paid
in full, provided, however, that nay two or more series of the Series Preferred
Stock may differ from each other as to the existence and extent of the right to
cumulative dividends, as aforesaid.
<PAGE> 10
3. Voting Rights: Except as otherwise specifically provided in
the certificate filed pursuant to law with respect to any series of the Series
Preferred Stock, or as otherwise provided by law, the Series Preferred Stock
shall not have any right to vote for the election of directors or for any other
purpose and the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or involuntary, each series of
Series Preferred Stock shall have preference and priority over the Common Stock
for payment of the amount to which each outstanding series of Series Preferred
Stock shall be entitled in accordance with the provisions thereof and each
holder of Series Preferred Stock shall be entitled to be paid in full such
amount, or have a sum sufficient for the payment in full set aside, before any
payments shall be made to the holders of the Common Stock. If, upon liquidation,
dissolution or winding up of the corporation, the assets of the corporation or
proceeds thereof, distributable among the holders of the shares of all series of
the Series Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the respective amounts
which would be payable if all amounts payable thereon were paid in full. After
the payment to the holders of Series Preferred Stock of all such amounts to
which they are entitled, as above provided, the remaining assets and funds of
the corporation shall be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of
any series shall be made redeemable as provided in clause (iii) of paragraph 1
of section (b) of this Article III, the corporation, at the option of the Board
of Directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the Board of
Directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as may be
specifically provided in the certificate filed pursuant to law with respect to
the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the
corporation shall be entitled, as such, as a matter or right, to subscribe for
or purchase any part of any new or additional issue of stock of any class or
series whatsoever, any rights or options to purchase stock of any class or
series whatsoever, or any securities convertible into, exchangeable for or
carrying rights or options to purchase stock of any class or series whatsoever,
whether now or hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred
Stock, Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series
established hereby shall be "Floating Rate Non-Cumulative Preferred Stock,
Series A" (hereinafter called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall
initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased
or otherwise acquired by the corporation shall be cancelled and shall revert to
authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred
Stock shall be entitled to receive non-cumulative cash dividends when, as and if
declared by the Board of Directors of the corporation, out of funds legally
available therefor, from the date of original
<PAGE> 11
issuance of such shares (the "Issue Date") and such dividends will be payable on
March 28, June 28, September 28 and December 28 of each year ("Dividend Payment
Date") commencing September 28, 1990, at a rate per annum as determined in
paragraph 3(b) below. The period beginning on the Issue Date and ending on the
day preceding the firs Dividend Payment Date and each successive period
beginning on a Dividend Payment Date and ending on the date preceding the next
succeeding Dividend Payment Date is herein called a "Dividend Period". If any
Dividend payment Date shall be, in The City of New York, a Sunday or a legal
holiday or a day on which banking institutions are authorized by law to close,
then payment will be postponed to the next succeeding business day with the same
force and effect as if made on the Dividend Payment Date, and no interest shall
accrue for such Dividend Period after such Dividend Payment Date.
(b) Dividend Rate. The dividend rare from time to time payable in
respect of Series A Preferred Stock (the "Dividend Rate") shall be determined on
the basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined
on the basis of the offered rates for deposits in U.S. dollars having a maturity
of three months commencing on the second London Business Day immediately
following such Dividend Determination Date, as such rates appear on the Reuters
Screen LIBO Page as of 11:00 A.M. London time, on such Dividend Determination
Date. If at least two such offered rates appear on the Reuters Screen LIBO Page,
LIBOR in respect of such Dividend Determination Dates will be the arithmetic
mean (rounded to the nearest one-hundredth of a percent, with five
one-thousandths of a percent rounded upwards) of such offered rates. If fewer
than those offered rates appear, LIBOR in respect of such Dividend Determination
Date will be determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those
offered rates for the applicable maturity appear on the Reuters Screen LIBO Page
as specified in paragraph (i) above, LIBOR will be determined on the basis of
the rates at which deposits in U.S. dollars having a maturity of three months
commending on the second London Business Day immediately following such Dividend
Determination Date and in a principal amount of not less than $1,000,000 that is
representative of a single transaction in such market at such time are offered
by three major banks in the London interbank market selected by the corporation
at approximately 11:00 A.M., London time, on such Dividend Determination Date to
prime banks in the London market. The corporation will request the principal
London office of each of such banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR in respect of such Dividend
Determination Date will be the arithmetic mean (rounded to the nearest
one-hundredth of a percent, with five one-thousandths of a percent rounded
upwards) of such quotations. If fewer than two quotations are provided, LIBOR in
respect of such Dividend Determination Date will be the arithmetic mean (rounded
to the nearest one-hundredth of a percent, with five one-thousandths of a
percent rounded upwards) of the rates quoted by three major banks in New York
City selected by the corporation at approximately 11:00 A.M., New York City
time, on such Dividend Determination Date for loans in U.S. dollars to leading
European banks having a maturity of three months commencing on the second London
Business Day immediately following such Dividend Determination Date and in a
principal amount of not less than $1,000,000 that is representative of a single
transaction in such market at such time; provided, however, that if the banks
selected as aforesaid by the corporation are not quoting as aforementioned in
this sentence, then, with respect to such Dividend Period, LIBOR for the
preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(iii) The Dividend Rate for any Dividend Period shall be equal to
the lower of 18% of 50 basis points above LIBOR for such Dividend Period as
LIBOR is determined by sections (i) or (ii) above.
<PAGE> 12
As used above, the term "Dividend Determination Date" shall mean, with resect to
any Dividend Period, the second London Business Day prior to the commencement of
such Dividend Period; and the term "London Business Day" shall mean any day that
is not a Saturday or Sunday and that, in New York City, is not a day on which
banking institutions generally are authorized or required by law or executive
order to close and that is a day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock
shall have the voting power and rights set forth in this paragraph 4 and shall
have no other voting power or rights except as otherwise may from time to time
be required by law.
So long as any shares of Series A Preferred Stock remain outstanding,
the corporation shall not, without the affirmative vote or consent of the
holders of at least a majority of the votes of the Series Preferred Stock
entitled to vote outstanding at the time, given in person or by proxy, either in
writing or by resolution adopted at a meeting at which the holders of Series A
Preferred Stock (alone or together with the holders of one or more other series
of Series Preferred Stock at the time outstanding and entitled to vote) vote
separately as a class, alter the provisions of the Series Preferred Stock so as
to materially adversely affect its rights; provided, however, that in the event
any such materially adverse alteration affects the rights of only the Series A
Preferred Stock, then the alteration may be effected with the vote or consent of
at least a majority of the votes of the Series A Preferred Stock; provided,
further, that an increase in the amount of the authorized Series Preferred Stock
and/or the creation and/or issuance of other series of Series Preferred Stock in
accordance with the organization certificate shall not be, nor be deemed to be,
materially adverse alterations. In connection with the exercise of the voting
rights contained in the preceding sentence, holders of all series of Series
Preferred Stock which are granted such voting rights (of which the Series A
Preferred Stock is the initial series) shall vote as a class (except as
specifically provided otherwise) and each holder of Series A Preferred Stock
shall have one vote for each share of stock held and each other series shall
have such number of votes, if any, for each share of stock held as may be
granted to them.
The foregoing voting provisions will not apply if, in connection with
the matters specified, provision is made for the redemption or retirement of all
outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this
Article III, upon any liquidation, dissolution or winding up of the corporation,
whether voluntary or involuntary, the holders of the Series A Preferred Stock
shall have preference and priority over the Common Stock for payment out of the
assets of the corporation or proceeds thereof, whether from capital or surplus,
of $1,000,000 per share (the "liquidation value") together with the amount of
all dividends accrued and unpaid thereon, and after such payment the holders of
Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this
Article III, Series A Preferred Stock may be redeemed, at the option of the
corporation in whole or part, at any time or from time to time at a redemption
price of $1,000,000 per share, in each case plus accrued and unpaid dividends to
the date of redemption.
At the option of the corporation, shares of Series A Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of
such redemption to the holders of the Series A Preferred Stock to be redeemed in
the following manner: a notice specifying the shares to be redeemed and the time
and place or redemption (and, if less than the
<PAGE> 13
total outstanding shares are to be redeemed, specifying the certificate numbers
and number of shares to be redeemed) shall be mailed by first class mail,
addressed to the holders of record of the Series A Preferred Stock to be
redeemed at their respective addressees as the same shall appear upon the books
of the corporation, not more than sixty (60) days and not less than thirty (30)
days previous to the date fixed for redemption. In the event such notice is not
given to any shareholder such failure to give notice shall not affect the notice
given to other shareholders. If less than the whole amount of outstanding Series
A Preferred Stock is to be redeemed, the shares to be redeemed shall be selected
by lot or pro rata in any manner determined by resolution of the Board of
Directors to b fair and proper. From and after the date fixed in any such notice
as the date of redemption (unless default shall be made by the corporation in
providing moneys at the time and place of redemption for the payment of the
redemption price) all dividends upon the Series A Preferred Stock so called for
redemption shall cease to accrue, and all rights of the holders of said Series A
Preferred Stock as stockholders in the corporation, except the right to receive
the redemption price (without interest) upon surrender of the certificate
representing the Series A Preferred Stock so called for redemption, duly
endorsed for transfer, if required, shall cease and terminate. The corporation's
obligation to provide moneys in accordance with the preceding sentence shall be
deemed fulfilled if, on or before the redemption date, the corporation shall
deposit with a bank or trust company (which may e an affiliate of the
corporation) having an office in the Borough of Manhattan, City of New York,
having a capital and surplus of at least $5,000,000 funds necessary for such
redemption, in trust with irrevocable instructions that such funds be applied to
the redemption of the shares of Series A Preferred Stock so called for
redemption. Any interest accrued on such funds shall be paid to the corporation
from time to time. Any funds so deposited and unclaimed at the end of two (2)
years from such redemption date shall be released or repaid to the corporation,
after which the holders of such shares of Series A Preferred Stock so called for
redemption shall look only to the corporation for payment of the redemption
price.
IV. The name, residence and post office address of each member of
the corporation are as follows:
<TABLE>
<CAPTION>
Name RESIDENCE POST OFFICE ADDRESS
<S> <C> <C>
James A. Blair 9 West 50th Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
James G. Cannon 72 East 54th Street, 14 Nassau Street,
Manhattan New York City Manhattan, New York City
E. C. Converse 3 East 78th Street, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Henry P. Davison Englewood, 2 Wall Street,
New Jersey Manhattan, New York City
Granville W. Garth 160 West 57th Street, 33 Wall Street
Manhattan, New York City Manhattan, New York City
A. Barton Hepburn 205 West 57th Street 83 Cedar Street
Manhattan, New York City Manhattan, New York City
William Logan Montclair, 13 Nassau Street
New Jersey Manhattan, New York City
George W. Perkins Riverdale, 23 Wall Street,
New York Manhattan, New York City
</TABLE>
<PAGE> 14
<TABLE>
<S> <C> <C>
William H. Porter 56 East 67th Street 270 Broadway,
Manhattan, New York City Manhattan, New York City
John F. Thompson Newark, 143 Liberty Street,
New Jersey Manhattan, New York City
Albert H. Wiggin 42 West 49th Street, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Samuel Woolverton Mount Vernon, 34 Wall Street,
New York Manhattan, New York City
Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place,
Jersey City, New Jersey Jersey City, New Jersey
</TABLE>
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and
each for himself does, hereby declare that he will accept the responsibilities
and faithfully discharge the duties of a director therein, if elected to act as
such, when authorized accordance with the provisions of the Banking Law of the
State of New York.
VII. The number of directors of the corporation shall not be less
that 10 nor more than 25."
4. The foregoing restatement of the organization certificate was
authorized by the Board of Directors of the corporation at a meeting held on
July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
6th day of August, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
6th day of August, 1998.
James T. Byrne, Jr.
-------------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
-------------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
Lea Lahtinen
-------------------------------------------
Lea Lahtinen
<PAGE> 15
State of New York )
) ss:
County of New York )
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
----------------------------------
Lea Lahtinen
Sworn to before me this
6th day of August, 1998.
Sandra L. West
- ----------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE> 16
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "RESTATED ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION 8007 OF THE BANKING Law,"
dated August 6, 1998, providing for the restatement of the Organization
Certificate and all amendments into a single certificate.
WITNESS, my hand and official seal of the Banking Department at the City of New
York, this 31ST day of AUGUST in the Year of our Lord one thousand nine hundred
and NINETY-EIGHT.
Manuel Kursky
------------------------------
DEPUTY Superintendent of Banks
<PAGE> 17
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into
Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (200,166,667) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE> 18
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
25th day of September, 1998
James T. Byrne, Jr.
-------------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
-------------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
----------------------------------
Lea Lahtinen
Sworn to before me this 25th day
of September, 1998
Sandra L. West
- ----------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE> 19
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of
New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION
8005 OF THE BANKING LAW," dated December 16, 1998, providing for an increase in
authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares
with a par value of $10 each designated as Common Stock and 1,500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each
designated as Common Stock and 1,500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York, this 18TH day of DECEMBER in the Year of our Lord one thousand nine
hundred and NINETY-EIGHT.
P. Vincent Conlon
------------------------------
Deputy Superintendent of Banks
<PAGE> 20
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into
Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (200,166,667) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred
Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided
into Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight
Hundred Sixty-Seven (212,730,867) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE> 21
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
16th day of December, 1998
James T. Byrne, Jr.
-------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
-------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
----------------------------------------
Lea Lahtinen
Sworn to before me this 16th day
of December, 1998
Sandra L. West
- --------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE> 22
BY-LAWS
JUNE 22, 1999
BANKERS TRUST CORPORATION
(INCORPORATED UNDER THE NEW YORK BUSINESS CORPORATION LAW)
<PAGE> 23
BANKERS TRUST CORPORATION
-----------------------------------------------
BY-LAWS
-----------------------------------------------
ARTICLE I
SHAREHOLDERS
SECTION 1.01 Annual Meetings. The annual meetings of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday in April of
each year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at such hour as shall be designated by the Board of
Directors. If no other hour shall be so designated such meeting shall be held at
3 P.M.
SECTION 1.02 Special Meetings. Special meetings of the shareholders, except
those regulated otherwise by statute, may be called at any time by the Board of
Directors, or by any person or committee expressly so authorized by the Board of
Directors and by no other person or persons.
SECTION 1.03 Place of Meetings. Meetings of shareholders shall be held at such
place within or without the State of New York as shall be determined from time
to time by the Board of Directors or, in the case of special meetings, by such
person or persons as may be authorized to call a meeting. The place in which
each meeting is to be held shall be specified in the notice of such meeting.
SECTION 1.04 Notice of Meetings. A copy of the written notice of the place, date
and hour of each meeting of shareholders shall be given personally or by mail,
not less than ten nor more than fifty days before the date of the meeting, to
each shareholder entitled to vote at such meeting. Notice of a special meeting
shall indicate that it is being issued by or at the direction of the person or
persons calling the meeting and shall also state the purpose or purposes for
which the meeting is called. Notice of any meeting at which is proposed to take
action which would entitle shareholders to receive payment for their shares
pursuant to statutory provisions must include a statement of that purpose and to
that effect. If mailed, such notices of the annual and each special meeting are
given when deposited in the United States mail, postage prepaid, directed to the
shareholder at his address as it appears in the record of shareholders unless he
shall have filed with the Secretary of the corporation a written request that
notices intended for him shall be mailed to some other address, in which case it
shall be directed to him at such other address.
SECTION 1.05 Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote any meeting of shareholders or any adjournment
thereof, or to express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders entitled to receive
payment of any dividend or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix, in advance, a date as the
record date for any such
<PAGE> 24
determination of shareholders. Such date shall not be more than fifty nor less
than ten days before the date of such meeting, nor more than fifty days prior to
any other action.
SECTION 1.06 Quorum. The presence, in person or by proxy, of the holders of a
majority of the shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of business, except as otherwise
provided by statute, by the Certificate of Incorporation or by the By-Laws. The
shareholders present in person or by proxy and entitled to vote at any meeting,
despite the absence of a quorum, shall have power to adjourn the meeting from
time to time, to a designated time and place, without notice other than by
announcement at the meeting, and at any adjourned meeting any business may be
transacted that might have been transacted on the original date of the meeting.
However, if after the adjournment the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice.
SECTION 1.07 Notice of Shareholder Business at Annual Meeting. At an annual
meeting of shareholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation who complies with the
notice procedures set forth in this Section 1.07. For business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than thirty days nor
more than fifty days prior to the meeting; provided, however, that in the event
that less than forty days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the shareholder to be timely
must be received not later than the close of business on the tenth day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the shareholder proposing such business, (c) the class and number of shares of
the corporation which are beneficially owned by the shareholder and (d) any
material interest of the shareholder in such business. Notwithstanding anything
in these By-Laws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 1.07
and Section 2.03. The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 1.07
and Section 2.03, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01 Number and Qualifications. The business of the corporation shall be
managed by its Board of Directors. The number of directors constituting the
entire Board of Directors shall be not less than seven nor more than fifteen, as
shall be fixed from time to time by vote of a majority of the entire Board of
Directors. Each director shall be at least 21 years of age. Directors need not
be shareholders. No Officer-Director who shall have attained age 65, or earlier
relinquishes his responsibilities and title, shall be eligible to serve as a
director.
<PAGE> 25
SECTION 2.02 Election. At each annual meeting of shareholders, directors shall
be elected by a plurality of the votes to hold office until the next annual
meeting. Subject to the provisions of the statute, of the Certificate of
Incorporation and of the By-Laws, each director shall hold office until the
expiration of the term for which elected, and until his successor has been
elected and qualified.
SECTION 2.03 Nomination and Notification of Nomination. Subject to the rights of
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or to any committee appointed by
the Board of Directors or by any shareholder entitled to vote in the election of
directors generally. However, any shareholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such shareholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the corporation
not later than (i) with respect to an election to be held at an annual meeting
of shareholders ninety days in advance of such meeting, and (ii) with respect to
an election to be held at a special meeting of shareholders for the election of
directors, the close of business on the seventh day following the date on which
notice of such meeting is first given to shareholders. Each such notice shall
set forth: (a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the shareholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the shareholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (d) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the corporation if
so elected. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the corporation that information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth in the By-Laws. The Chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by these By-Laws, and if
he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
SECTION 2.04 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such places and times as may be fixed from time to time
by resolution of the Board and a regular meeting for the purpose of organization
and transaction of other business shall be held each year after the adjournment
of the annual meeting of shareholders.
SECTION 2.05 Special Meetings. The Chairman of the Board, the Chief Executive
Officer, the President, the Senior Vice Chairman or any Vice Chairman may, and
at the request of three directors shall, call a special meeting of the Board of
Directors, two days' notice of which shall be given in person or by mail,
telegraph, radio, telephone or cable. Notice of a special meeting need not be
given to any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
<PAGE> 26
SECTION 2.06 Place of Meeting. The directors may hold their meetings, have one
or more offices, and keep the books of the corporation (except as may be
provided by law) at any place, either within or without the State of New York,
as they may from time to time determine.
SECTION 2.07 Quorum and Vote. At all meetings of the Board of Directors the
presence of one-third of the entire Board, but not less than two directors,
shall constitute a quorum for the transaction of business. Any one or more
members of the Board of Directors or of any committee thereof may participate in
a meeting of the Board of Directors or a committee thereof by means of a
conference telephone or similar communications equipment which allows all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such a
meeting. The vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, shall be the act of the Board of
Directors, except as may be otherwise provided by statute or the By-Laws.
SECTION 2.08 Vacancies. Newly created directorships resulting from increase in
the number of directors and vacancies in the Board of Directors, whether caused
by resignation, death, removal or otherwise, may be filled by vote of a majority
of the directors then in office, although less than a quorum exists.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 3.01 Designation and Authority. The Board of Directors, by resolution
adopted by a majority of the entire Board, may designate from among its members
an Executive Committee and other committees, each consisting of three or more
directors. Each such committee, to the extent provided in the resolution or the
By-Laws, shall have all the authority of the Board, except that no such
committee shall have authority as to:
(i) the submission to shareholders of any action as to which
shareholders' authorization is required by law.
(ii) the filling of vacancies in the Board of Directors or any committee.
(iii) the fixing of compensation of directors for serving on the Board or
on any committee.
(iv) the amendment or appeal of the By-Laws, or the adoption of new
By-Laws.
(v) the amendment or repeal of any resolution of the Board which by its
terms shall not be so amendable or repealable.
The Board may designate one or more directors as alternate members of any such
committee, who may replace any absent member or members at any meeting of such
committee. Each such committee shall serve at the pleasure of the Board of
Directors.
SECTION 3.02 Procedure. Except as may be otherwise provided by statute, by the
By-Laws or by resolution of the Board of Directors, each committee may make
rules for the call and conduct of its meetings. Each committee shall keep a
record of its acts and proceedings and shall report the same from time to time
to the Board of Directors.
<PAGE> 27
ARTICLE IV
OFFICERS
SECTION 4.01 Titles and General. The Board of Directors shall elect from among
their number a Chairman of the Board and a Chief Executive Officer, and may also
elect a President, a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, a Secretary, a Controller, a Treasurer,
a General Counsel, a General Auditor, and a General Credit Auditor, who need not
be directors. The officers of the corporation may also include such other
officers or assistant officers as shall from time to time be elected or
appointed by the Board. The Chairman of the Board or the Chief Executive Officer
or, in their absence, the President, the Senior Vice Chairman or any Vice
Chairman, may from time to time appoint assistant officers. All officers elected
or appointed by the Board of Directors shall hold their respective offices
during the pleasure of the Board of Directors, and all assistant officers shall
hold office at the pleasure of the Board or the Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman. The Board of Directors may require any and all
officers and employees to give security for the faithful performance of their
duties.
SECTION 4.02 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the shareholders and of the Board of Directors. Subject to the
Board of Directors, he shall exercise all the powers and perform all the duties
usual to such office and shall have such other powers as may be prescribed by
the Board of Directors or the Executive Committee or vested in him by the
By-Laws.
SECTION 4.03 Chief Executive Officer. The Board of Directors shall designate the
Chief Executive Officer of the corporation, which person may also hold the
additional title of Chairman of the Board, President, Senior Vice Chairman or
Vice Chairman. Subject to the Board of Directors, he shall exercise all the
powers and perform all the duties usual to such office and shall have such other
powers as may be prescribed by the Board of Directors or the Executive Committee
or vested in him by the By-Laws.
SECTION 4.04 Chairman of the Board, President, Senior Vice Chairman, Vice
Chairmen, Executive Vice Presidents, Senior Vice Presidents, Principals and Vice
Presidents. The Chairman of the Board or, in his absence or incapacity the
President or, in his absence or incapacity, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, or in their absence, the Senior Vice
Presidents, in the order established by the Board of Directors shall, in the
absence or incapacity of the Chief Executive Officer perform the duties of the
Chief Executive Officer. The President, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, the Senior Vice Presidents, the
Principals, and the Vice Presidents shall also perform such other duties and
have such other powers as may be prescribed or assigned to them, respectively,
from time to time by the Board of Directors, the Executive Committee, the Chief
Executive Officer, or the By-Laws.
SECTION 4.05 Controller. The Controller shall perform all the duties customary
to that office and except as may be otherwise provided by the Board of Directors
shall have the general supervision of the books of account of the corporation
and shall also perform such other duties and have such powers as may be
prescribed or assigned to him from time to time by the Board of Directors, the
Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.06 Secretary. The Secretary shall keep the minutes of the meetings of
the Board of Directors and of the shareholders and shall have the custody of the
seal of the corporation. He
<PAGE> 28
shall perform all other duties usual to that office, and shall also perform such
other duties and have such powers as may be prescribed or assigned to him from
time to time by the Board of Directors, the Executive Committee, the Chairman of
the Board, the Chief Executive Officer, or the By-Laws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 5.01 The corporation shall, to the fullest extent permitted by Section
721 of the New York Business Corporation Law, indemnify any person who is or was
made, or threatened to be made, a party to an action or proceeding, whether
civil or criminal, whether involving any actual or alleged breach of duty,
neglect or error, any accountability, or any actual or alleged misstatement,
misleading statement or other act or omission and whether brought or threatened
in any court or administrative or legislative body or agency, including an
action by or in the right of the corporation to procure a judgment in its favor
and an action by or in the right of any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any director or officer of the corporation is
serving or served in any capacity at the request of the corporation by reason of
the fact that he, his testator or intestate, is or was a director or officer of
the corporation, or is serving or served such other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid in settlement, and costs, charges and
expenses, including attorneys' fees, or any appeal therein; provided, however,
that no indemnification shall be provided to any such person if a judgment or
other final adjudication adverse to the director or officer establishes that (i)
his acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
SECTION 5.03 The corporation shall, from time to time, reimburse or advance to
any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, upon receipt of a written undertaking by
or on behalf of such person to repay such amount(s) if a judgment or other final
adjudication adverse to the director or officer establishes that (i) his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in clause (i), in any capacity
shall be deemed to be doing so at the request of the corporation. In all other
cases, the provisions of this Article V will apply (i) only if the person
serving another corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise so served at the specific request of the
corporation, evidenced by a written communication signed by
<PAGE> 29
the Chairman of the Board, the Chief Executive Officer, the President, the
Senior Vice Chairman or any Vice Chairman, and (ii) only if and to the extent
that, after making such efforts as the Chairman of the Board, the Chief
Executive Officer, or the President shall deem adequate in the circumstances,
such person shall be unable to obtain indemnification from such other enterprise
or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or advancement
of expenses pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the corporation and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section 5.01 shall be entitled to indemnification only as provided
in Sections 5.01 and 5.03, notwithstanding any provision of the New York
Business Corporation Law to the contrary.
ARTICLE VI
SEAL
SECTION 6.01 Corporate Seal. The corporate seal shall contain the name of the
corporation and the year and state of its incorporation. The seal may be altered
from time to time at the discretion of the Board of Directors.
<PAGE> 30
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.01 Form. The certificates for shares of the corporation shall be in
such form as shall be approved by the Board of Directors and shall be signed by
the Chairman of the Board, the Chief Executive Officer, the President, the
Senior Vice Chairman or any Vice Chairman and the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the corporation or a facsimile
thereof. The signatures of the officers upon the certificate may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a
registrar other than the corporation itself or its employees.
ARTICLE VIII
CHECKS
SECTION 8.01 Signatures. All checks, drafts and other orders for the payment of
money shall be signed by such officer or officers or agent or agents as the
Board of Directors may designate from time to time.
ARTICLE IX
AMENDMENT
SECTION 9.01 Amendment of By-Laws. The By-Laws may be amended, repealed or added
to by vote of the holders of the shares at the time entitled to vote in the
election of any directors. The Board of Directors may also amend, repeal or add
to the By-Laws, but any By-Laws adopted by the Board of Directors may be amended
or repealed by the shareholders entitled to vote thereon as provided herein. If
any By-Law regulating an impending election of directors is adopted, amended or
repealed by the Board, there shall be set forth in the notice of the next
meeting of shareholders for the election of directors the By-Laws so adopted,
amended or repealed, together with concise statement of the changes made.
ARTICLE X
SECTION 10.01 Construction. The masculine gender, when appearing in these
By-Laws, shall be deemed to include the feminine gender.
<PAGE> 31
I, Jackie Bartnick, Vice President of Bankers Trust Company, New York, New York,
hereby certify that the foregoing is a complete, true and correct copy of the
By-Laws of Bankers Trust Company, and that the same are in full force and effect
at this date.
/S/ Jackie Bartnick
-------------------
Jackie Bartnick
Vice President
DATED: August 20, 1999
<PAGE> 32
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/99 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
------------
| C400 |
------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
============================================================================================================================
<S> <C> <C>
ASSETS | / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1) ........................ | 0081 1,695,000 |1.a.
b. Interest-bearing balances (2) ................................................. | 0071 1,308,000 |1.b.
2. Securities: | / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) .................... | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)................... | 1773 6,150,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell.............. | 1350 29,512,000 |3.
4. Loans and lease financing receivables: | / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 18,869,000 | / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses....................RCFD 3123 571,000 | / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve .......................RCFD 3128 0 | / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ........................... | 2125 18,298,000 |4.d.
5. Trading Assets (from schedule RC-D) ................................................ | 3545 34,815,000 |5.
6. Premises and fixed assets (including capitalized leases) ............................ | 2145 916,000 |6.
7. Other real estate owned (from Schedule RC-M) ........................................ | 2150 88,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 883,000 |8.
9. Customers' liability to this bank on acceptances outstanding ........................ | 2155 307,000 |9.
10. Intangible assets (from Schedule RC-M) .............................................. | 2143 302,000 |10.
11. Other assets (from Schedule RC-F) ................................................... | 2160 4,645,000 |11.
12. Total assets (sum of items 1 through 11) ............................................ | 2170 98,919,000 |12.
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 33
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/99 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
SCHEDULE RC--CONTINUED -------------------------------------
Dollar Amounts in Thousands | / / / / / / Bil Mil Thou
===================================================================================================================================
LIABILITIES | / / / / / / / / / / / / / |
13. Deposits: | / / / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 17,829,000 |13.a.
(1) Noninterest-bearing(1) ............................RCON 6631 2,939,000.... | / / / / / / / / / / / / / |13.a.(1)
(2) Interest-bearing ..................................RCON 6636 14,890,000.... | / / / / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / / / / / |
part II) | RCFN 2200 20,634,000 |13.b.
(1) Noninterest-bearing ...............................RCFN 6631 1,878,000 | / / / / / / / / / / / / / |13.b.(1)
(2) Interest-bearing ..................................RCFN 6636 18,756,000 | / / / / / / / / / / / / / |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 13,513,000 |14.
15. a. Demand notes issued to the U.S. Treasury ...................................... | RCON 2840 0 |15.a.
b. Trading liabilities (from Schedule RC-D)....................................... | RCFD 3548 22,010,000 |15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized
leases): | / / / / / / / / / / / / / |
a. With a remaining maturity of one year or less ................................. | RCFD 2332 6,400,000 |16.a.
b. With a remaining maturity of more than one year through three years............ | A547 2,347,000 |16.b.
c. With a remaining maturity of more than three years............................. | A548 2,321,000 |16.c
17. Not Applicable. | / / / / / / / / / / / / / |17.
18. Bank's liability on acceptances executed and outstanding ........................... | RCFD 2920 307,000 |18.
19. Subordinated notes and debentures (2)............................................... | RCFD 3200 438,000 |19.
20. Other liabilities (from Schedule RC-G) ............................................. | RCFD 2930 6,129,000 |20.
21. Total liabilities (sum of items 13 through 20) ..................................... | RCFD 2948 91,928,000 |21.
22. Not Applicable | / / / / / / / / / / / / / |
| / / / / / / / / / / / / / |22.
EQUITY CAPITAL | / / / / / / / / / / / / / |
23. Perpetual preferred stock and related surplus ...................................... | RCFD 383 1,500,000 |23.
24. Common stock ....................................................................... | RCFD 3230 2,127,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ........................... | RCFD 3839 541,000 |25.
26. a. Undivided profits and capital reserves ........................................ | RCFD 3632 3,291,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ........ | RCFD 8434 ( 59,000)|26.b.
c. Accumulated net gains (losses) on cash flow hedges............................. | RCFD 4336 0 | 26.c.
27. Cumulative foreign currency translation adjustments ................................ | RCFD 3284 (409,000)|27.
28. Total equity capital (sum of items 23 through 27) .................................. | RCFD 3210 6,991,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28)....................... | RCFD 3300 98,919,000 |29
| |
-------------------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external --------------------------
auditors as of any date during 1998....................................................... | RCFD 6724 1 | M.1
==========================
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by
a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
