<PAGE>
As filed with the Securities and Exchange Commission on November 7, 1997
Registration No. 333-38461
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
PREMIER BANCSHARES, INC. PREMIER CAPITAL TRUST I
(Exact name of registrant and co-registrant as specified in their charters)
GEORGIA DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
58-1793778 APPLIED FOR
(I.R.S. Employer Identification (I.R.S. Employer Identification
No.) No.)
2180 Atlanta Plaza 2180 Atlanta Plaza
950 E. Paces Ferry Road 950 E. Paces Ferry Road
Atlanta, Georgia 30326 Atlanta, Georgia 30326
(404) 814-3090 (404) 814-3090
(Address(es), including zip code(s), and telephone number(s), including area
code(s), of registrant's and
co-registrant's principal executive offices)
Darrell D. Pittard Darrell D. Pittard
Premier Bancshares, Inc. Premier Capital Trust I
2180 Atlanta Plaza 2180 Atlanta Plaza
950 E. Paces Ferry Road 950 E. Paces Ferry Road
Atlanta, Georgia 30326 Atlanta, Georgia 30326
(404) 814-3090 (404) 814-3090
(Name, address, including ZIP (Name, address, including ZIP
Code and Code and
telephone number, including area telephone number, including area
code, of agent for service) code, of agent for service)
--------------
COPIES TO:
Steven S. Dunlevie Frank M. Conner III
Elizabeth O. Derrick Jonathan H. Talcott
WOMBLE CARLYLE SANDRIDGE & RICE, ALSTON & BIRD LLP
PLLC 601 Pennsylvania Avenue, N.W.
1275 Peachtree Street, N.E., North Building, Suite 250
Suite 700, Washington, D.C. 20004-2601
Atlanta, Georgia 30309-3574 (202) 508-3300
(404) 872-7000 --------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effectiveness of this Registration Statement.
--------------
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, as amended (the "Securities Act") other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED NOVEMBER 7, 1997
PROSPECTUS
1,000,000 PREFERRED SECURITIES
PREMIER CAPITAL TRUST I
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25.00 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
PREMIER BANCSHARES, INC.
LOGO
The % Cumulative Trust Preferred Securities (the "Preferred Securities")
offered hereby represent preferred undivided beneficial interests in the assets
of Premier Capital Trust I, a statutory business trust created under the laws
of the State of Delaware ("Premier Capital Trust"). Premier Bancshares, Inc., a
Georgia corporation (the "Company"), will own all of the common
(Continued on next page)
Application has been made to have the Preferred Securities approved for
quotation on the American Stock Exchange, Inc., under the symbol "PMB.PR."
SEE "RISK FACTORS" COMMENCING ON PAGE 12 FOR A DISCUSSION OF CERTAIN RISK
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE PREFERRED
SECURITIES OFFERED HEREBY.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES OFFERED BY THIS PROSPECTUS ARE NOT SAVINGS OR DEPOSIT ACCOUNTS,
ARE NOT OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE
OF THE COMPANY (EXCEPT TO THE EXTENT THAT PREFERRED SECURITIES ARE
GUARANTEED BY THE COMPANY AS DESCRIBED HEREIN), ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY AND
INVOLVE INVESTMENT RISKS, INCLUDING POSSIBLE LOSS OF PRINCIPAL.
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<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO PREMIER
PUBLIC(1) COMMISSION(2) CAPITAL TRUST(3)(4)
---------------------------------------------------------
<S> <C> <C> <C>
Per Preferred Security...... $25.00 (3) $25.00
---------------------------------------------------------
Total (5)................... $25,000,000 (3) $25,000,000
</TABLE>
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(1) Plus accumulated Distributions (as defined herein), if any, from the Issue
Date (as defined herein).
(2) Premier Capital Trust and the Company have each agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds of the sale of the Preferred
Securities will be invested in the Subordinated Debentures, the Company has
agreed to pay the Underwriters as compensation for their arranging the
investment therein of such proceeds, $1.00 per Preferred Security, or
$1,000,000 in the aggregate. See "Underwriting."
(4) Before deducting expenses of the offering which are payable by the Company,
estimated to be $350,000.
(5) Premier Capital Trust and the Company have granted the Underwriters an
option, exercisable within 30 days from the date of this Prospectus, to
purchase up to 150,000 additional Preferred Securities on the same terms
and conditions set forth above solely to cover over-allotments, if any. If
the option is exercised in full, the total Price to Public, Underwriting
Commission and Proceeds to Premier Capital Trust will be $28,750,000,
$1,150,000 and $28,750,000, respectively. See "Underwriting."
-----------
The Preferred Securities are offered, by the Underwriters subject to receipt
and acceptance by them, to prior sale and to the Underwriters' right to reject
any order in whole or in part and to withdraw, cancel or modify the offer
without notice. It is expected that delivery of the Preferred Securities will
be made on or about , 1997.
-----------
J.C.Bradford&Co.
Interstate/Johnson Lane
Corporation
SterneAgee&Leach,Inc.
, 1997
<PAGE>
(Continued from previous page)
securities (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities") representing undivided beneficial
interests in the assets of Premier Capital Trust. State Street Bank & Trust
Company ("State Street") is the Property Trustee (as defined herein) of
Premier Capital Trust. Premier Capital Trust exists for the purpose of issuing
the Preferred Securities and investing the proceeds thereof in an equivalent
amount of % Subordinated Debentures (the "Subordinated Debentures") of the
Company. The Subordinated Debentures will mature on December 31, 2027 (the
"Stated Maturity"). The Preferred Securities will have a preference over the
Common Securities under certain circumstances with respect to cash
distributions and amounts payable on liquidation, redemption or otherwise over
the Common Securities. See "Description of the Preferred Securities--
Subordination of Common Securities."
Holders of Preferred Securities are entitled to receive cumulative cash
distributions, at the annual rate of % of the liquidation amount of $25.00
per Preferred Security (the "Liquidation Amount"), accruing from the date of
original issuance (the "Issue Date") and payable quarterly in arrears on the
last day of March, June, September and December of each year, commencing
December 31, 1997 (the "Distributions"). The Company has the right, so long as
no Debenture Event of Default (as defined herein) has occurred and is
continuing, to defer payment of interest on the Subordinated Debentures at any
time or from time to time for a period not to exceed 20 consecutive quarters
with respect to each deferral period (each, an "Extended Interest Payment
Period"); provided that no Extended Interest Payment Period shall end on a day
other than an Interest Payment Date (as defined herein) or extend beyond the
Stated Maturity. Upon the termination of any such Extended Interest Payment
Period and the payment of all amounts then due, the Company may elect to begin
a new Extended Interest Payment Period subject to the requirements set forth
herein. If interest payments on the Subordinated Debentures are so deferred,
distributions on the Preferred Securities will also be deferred, and the
Company will not be permitted, subject to certain exceptions described herein,
to declare or pay any cash distributions with respect to its capital stock or
debt securities that rank pari passu with or junior to the Subordinated
Debentures. During an Extended Interest Payment Period, interest on the
Subordinated Debentures will continue to accrue (and the amount of
distributions to which holders of the Preferred Securities are entitled will
continue to accumulate) at the rate of % per annum, compounded quarterly, and
holders of the Preferred Securities will be required to include interest
income in their gross income for United States federal income tax purposes in
advance of receipt of the cash distributions with respect to such deferred
interest payments. A holder of Preferred Securities that disposes of its
Preferred Securities between record dates for payments of distributions (and
consequently does not receive a distribution from Premier Capital Trust for
the period prior to such disposition) will nevertheless be required to include
accrued but unpaid interest on the Subordinated Debentures through the date of
disposition in income as ordinary income and to add such amount to its
adjusted tax basis in its pro rata share of the underlying Subordinated
Debentures deemed disposed of. See "Description of the Subordinated
Debentures--Option to Extend Interest Payment Period," "Material Federal
Income Tax Consequences--Potential Extension of Interest Payment Period and
Original Issue Discount" and "--Disposition of Preferred Securities."
The Company and Premier Capital Trust believe that, taken together, the
obligations of the Company under the Guarantee, the Trust Agreement, the
Subordinated Debentures, the Indenture and the Expense Agreement (each as
defined herein), provide, in the aggregate, a full, irrevocable and
unconditional guarantee, on a subordinated basis, of all of the obligations of
Premier Capital Trust under the Preferred Securities. See "Relationship Among
the Preferred Securities, the Subordinated Debentures and the Guarantee--Full
and Unconditional Guarantee." The Guarantee of the Company guarantees the
payment of Distributions and payments on liquidation or redemption of the
Preferred Securities, but only in each case to the extent of funds held by
Premier Capital Trust, as described herein. See "Description of the
Guarantee--General." If the Company does not make interest payments on the
Subordinated Debentures held by Premier Capital Trust, Premier Capital Trust
will have insufficient funds to pay Distributions on the Preferred Securities.
The Guarantee does not cover payments of Distributions when Premier Capital
Trust does not have sufficient funds to pay such Distributions. In such event,
a holder of Preferred Securities may institute a legal proceeding directly
against the Company pursuant to the terms of the Indenture to force payments
of amounts equal to such Distributions to
<PAGE>
(Continued from previous page)
such holder. See "Description of the Subordinated Debentures--Enforcement of
Certain Rights by Holders of the Preferred Securities." The obligations of the
Company under the Guarantee and the Preferred Securities are subordinate and
junior in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations (each as defined herein) of the Company. The
Subordinated Debentures are unsecured obligations of the Company and are
subordinated to all Senior Debt, Subordinated Debt and Additional Senior
Obligations of the Company.
The Preferred Securities are subject to mandatory redemption, in whole or in
part, upon repayment of the Subordinated Debentures at maturity or their
earlier redemption. Subject to approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), if then required under
applicable capital guidelines or policies of the Federal Reserve, the
Subordinated Debentures are redeemable prior to maturity at the option of the
Company (i) on or after December 31, 2007 in whole at any time or in part from
time to time, or (ii) at any time, in whole (but not in part), within 180 days
following the occurrence of a Tax Event, a Capital Event or an Investment
Company Event (each as defined herein), in each case at a redemption price
equal to the accrued and unpaid interest on the Subordinated Debentures so
redeemed to the date fixed for redemption, plus 100% of the principal amount
thereof allocated on a pro rata basis (based upon Liquidation Amounts) among
the Trust Securities (the "Redemption Price"). See "Description of the
Preferred Securities--Redemption or Exchange."
The Company has the right at any time to dissolve, wind-up or terminate
Premier Capital Trust subject to the Company's having received prior approval
of the Federal Reserve to do so if then required under applicable capital
guidelines or policies of the Federal Reserve. In the event of the voluntary
or involuntary dissolution, winding up or termination of Premier Capital
Trust, after satisfaction of liabilities to creditors of Premier Capital Trust
as required by applicable law, the holders of Preferred Securities will be
entitled to receive a Liquidation Amount of $25.00 per Preferred Security,
plus accumulated and unpaid Distributions thereon to the date of payment,
which may be in the form of a distribution of such amount of a Subordinated
Debenture having an aggregate principal amount equal to the Liquidation Amount
of such Preferred Securities (and carrying with it accumulated interest in an
amount equal to the accumulated and unpaid Distributions then due on such
Preferred Securities), subject to certain exceptions. See "Description of the
Preferred Securities--Redemption or Exchange" and "--Liquidation Distribution
Upon Termination."
----------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE PREFERRED
SECURITIES 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.
<PAGE>
AVAILABLE INFORMATION
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and Premier Capital Trust with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933 as
amended (the "Securities Act") with respect to the Preferred Securities and
the Subordinated Debentures. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission,
although it does include a summary of the material terms of the Indenture and
the Trust Agreement. Reference is made to such Registration Statement and to
the exhibits relating thereto for further information with respect to the
Company, Premier Capital Trust, the Preferred Securities and the Subordinated
Debentures. Any statements contained herein concerning the provisions of any
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission or incorporated by reference herein are not necessarily
complete, and, in each instance, reference is made to the copy of such
document so filed for a more complete description of the matter involved. Each
such statement is qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 as amended (the "Exchange Act") and, in accordance
therewith, files reports, proxy statements and other information with the
Commission. Premier Capital Trust is not currently subject to the information
reporting requirements of the Exchange Act and although Premier Capital Trust
will become subject to such requirements upon the effectiveness of the
Registration Statement, it is not expected that Premier Capital Trust will be
filing separate reports under the Exchange Act. The Company's reports, proxy
statements and other information can be inspected and copied at the following
public reference facilities maintained by the Commission: 450 Fifth Street,
N.W., Washington, D.C. 20549; 7 World Trade Center, Suite 1300, New York, New
York 10048; and the Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material may also be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, upon payment of prescribed rates. The
Company's common stock is listed on the American Stock Exchange, Inc., 86
Trinity Place, New York, New York 10006-1881 under the symbol "PMB." The
Commission maintains an Internet web site that contains reports, proxy and
information statements and other information regarding issuers who file
electronically with the Commission. The address of that site is
http://www.sec.gov. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the
American Stock Exchange, Inc.
No separate financial statements of Premier Capital Trust have been included
herein. The Company does not consider that such financial statements would be
material to holders of Preferred Securities because (i) all of the voting
securities of Premier Capital Trust will be owned by the Company, a reporting
company under the Exchange Act, (ii) Premier Capital Trust has no independent
operations but exists for the sole purpose of issuing securities representing
undivided beneficial interests in the assets of Premier Capital Trust and
investing the proceeds thereof in Subordinated Debentures issued by the
Company, and (iii) the obligations of the Company described herein to provide
certain indemnities in respect of and be responsible for certain costs,
expenses, debts and liabilities of Premier Capital Trust under the Indenture
and pursuant to the Trust Agreement, the Guarantee issued by the Company with
respect to the Preferred Securities, the Subordinated Debentures purchased by
Premier Capital Trust and the related Indenture, taken together, constitute,
in the belief of the Company and Premier Capital Trust, a full and
unconditional guarantee of payments due on the Preferred Securities. See
"Description of the Subordinated Debentures" and "Description of the
Guarantee."
1
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Company with the Commission
pursuant to Section 13 of the Exchange Act, are incorporated herein by
reference:
(a) the Company's Annual Report on Form 10-K, as amended by the Company's
Form 10-K/A, for the year ended December 31, 1996;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, and Form 10-Q, as amended by the Company's Form 10-Q/A
for the quarter ended June 30, 1997 (which Quarterly Report on Form 10-
Q/A for June 30, 1997 includes (i) restated interim financial
statements giving effect to the combination of Central and Southern
Holding Company ("Central and Southern") with the Company, accounted
for as a pooling of interests, and (ii) management's discussion and
analysis of financial condition and results of operations of the
Company, giving effect to the combination of Central and Southern with
the Company, accounted for as a pooling of interests);
(c) the Company's Current Reports on Form 8-K dated June 23, 1997 and Form
8-K/A dated August 27, 1997 (which includes pro forma consolidated
financial statements of the Company, giving effect to the combination
of Central and Southern with the Company, accounted for as a pooling of
interests); and
(d) the Company's Current Report on Form 8-K/A dated November 4, 1997 (which
includes (i) supplemental pro forma consolidated financial statements
of the Company giving effect to the combination of Citizens Gwinnett
Bankshares, Inc. with the Company, accounted for as a pooling of
interests, and (ii) restated annual financial statements of the Company
giving effect to the combination of Central and Southern with the
Company, accounted for as a pooling of interests).
All reports and any definitive proxy or information statements filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Preferred Securities offered hereby shall
be deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in
documents incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus. In particular, reference is made to the
Company's Current Report on Form 8-K/A dated November 4, 1997, which includes
(i) supplemental pro forma consolidated financial statements, giving effect to
the combination of Citizens Gwinnett Bankshares, Inc. with the Company and
(ii) restated financial statements of the Company giving effect to the
combination of Central and Southern with the Company, accounted for as a
pooling of interests. See "Prospectus Summary" and "The Company--Recent
Developments."
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents incorporated herein by reference (other
than exhibits to such documents which are not specifically incorporated by
reference in such documents). Written requests for such copies should be
directed to Michael E. Ricketson, Executive Vice President and Chief Financial
Officer, Premier Bancshares, Inc., 2180 Atlanta Plaza, 950 E. Paces Ferry
Road, Atlanta, Georgia 30326. Telephone requests may be directed to (404) 814-
3090.
2
<PAGE>
PREMIER BANCSHARES, INC.
LOGO
On June 24, 1997, the Company entered into a definitive agreement to acquire
Citizens Gwinnett Bankshares, Inc, which is expected to close in 1997.
3
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus. Unless otherwise indicated,
the information in this Prospectus does not give effect to the exercise of the
Underwriters' over-allotment option. Prospective investors should carefully
consider the information set forth under the heading "Risk Factors."
THE COMPANY
The Company, a Georgia corporation, is a bank and thrift holding company
headquartered in Atlanta, Georgia. Through its three wholly-owned financial
institution subsidiaries, Premier Bank, The Central and Southern Bank of
Georgia ("Central and Southern Bank"), and The Central and Southern Bank of
North Georgia, F.S.B. ("Central and Southern Bank of North Georgia")
(collectively, the "Banking Subsidiaries"), the Company operates 16 banking
offices located in the Atlanta metropolitan area and in northern and central
Georgia. In these markets, the Banking Subsidiaries provide a broad array of
community banking services, including: loans to and deposits of small and
medium-sized businesses; residential, construction and development loans;
commercial real estate loans; consumer loans and a variety of commercial and
consumer deposit accounts.
In addition, through its wholly-owned mortgage banking subsidiary, Premier
Lending Corporation ("Premier Lending"), the Company operates eight mortgage
loan production offices in the Atlanta metropolitan area and one in each of
Jacksonville, Florida, Charleston, South Carolina, and Mobile, Alabama. Premier
Lending is a retail originator of residential mortgage loans which are sold to
correspondent mortgage investors and is an approved Federal National Mortgage
Association ("FNMA") and Federal Home Loan Mortgage Corporation ("FHLMC")
seller-servicer of mortgage loans and an approved Department of Housing and
Urban Development ("HUD") and Veterans Administration ("VA") mortgage
originator.
The following information summarizes certain selected consolidated financial
information of the Company for the periods presented. For complete financial
information concerning the Company see "Available Information," "Documents
Incorporated by Reference" and "Selected Consolidated Financial Data."
<TABLE>
<CAPTION>
AS OF AND FOR THE
SIX MONTHS
AS OF AND FOR THE YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------------------------------- ------------------
1992 1993 1994 1995 1996 1996 1997
-------- -------- -------- -------- -------- -------- --------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Total assets............ $413,484 $385,482 $355,523 $445,374 $519,944 $476,674 $587,424
Net income (loss)....... (2,829) 198 1,908 4,548 5,494 2,959 4,088
Net income (loss) per
share.................. (0.47) 0.03 0.25 0.57 0.68 0.37 0.51
Total shareholders' eq-
uity................... 31,981 37,234 37,038 46,090 47,180 45,738 50,355
Return on average equi-
ty..................... (8.49)% 0.57% 5.09% 10.46% 11.90% 12.88% 17.30%
Return on average as-
sets................... (0.65) 0.05 0.51 1.11 1.17 1.28 1.50
</TABLE>
The Company is a locally-focused, community-oriented financial services
holding company with several specialized lines of business such as commercial
finance (including asset-based loans), Small Business Administration ("SBA")
lending, residential construction lending, residential mortgage loan
origination and commercial real estate mortgage loan origination. The Company's
extensive knowledge of both its product lines and local markets allows it to
compete effectively with larger institutions by offering a wide range of
products while maintaining strong community relationships and name recognition
within its markets. In addition, management believes that there continues to be
increased opportunities in the retail and small commercial loan product market
as larger competitors focus on the higher dollar and volume loan product
markets.
4
<PAGE>
The Company's objective is to be the preeminent provider of banking services
for small and medium-sized businesses, focusing on internal growth through
branching in key markets, developing new products and cross-selling its banking
products to existing and new mortgage borrowers. In addition, management
intends to enhance shareholder value by continuing to increase its market share
through engaging in additional mergers and acquisitions of banks, bank holding
companies, thrifts, mortgage companies and insurance brokerage operations.
Acquisitions of unaffiliated financial institutions during the past two years
have been a principal source of the Company's growth. On August 31, 1996, the
Company acquired a thrift holding company then named Premier Bancshares, Inc.,
and on June 23, 1997, the Company acquired Central and Southern, a bank and
thrift holding company. As a result of these two transactions, the Company
added nine banking offices and approximately $326 million in assets and
approximately $260 million in deposits to its existing franchise. The
historical financial statements of the Company have been restated to give
effect to these acquisitions which were accounted for as poolings of interests.
On October 17, 1997, the Company acquired Traditional Mortgage Corporation
("Traditional"), a Georgia corporation specializing in mortgage banking, and
merged Traditional with and into Premier Lending, adding five loan production
offices to Premier Lending's existing franchise. With the consummation of the
Traditional acquisition, the Company is one of the largest volume residential
mortgage lenders based in the State of Georgia, averaging approximately $55
million in loan closings per month for the nine months ended September 30,
1997. See "The Company--Recent Developments" and "Incorporation of Certain
Documents by Reference."
Premier Bank and Central and Southern Bank are Georgia state banks, Central
and Southern Bank of North Georgia is a federal savings association, and
Premier Lending is a Georgia corporation. The principal executive offices of
the Company are located at 2180 Atlanta Plaza, 950 E. Paces Ferry Road,
Atlanta, Georgia 30326, and its telephone number at such address is (404) 814-
3090.
RECENT DEVELOPMENTS
On October 9, 1997, the Company announced its operating results for the three
and nine months ended September 30, 1997. Net income increased approximately
197% to $2.6 million, or $0.32 per share, for the three months ended September
30, 1997, from approximately $865,000, or $0.11 per share, for the three months
ended September 30, 1996. For the nine months ended September 30, 1997, the
Company reported net income of approximately $6.7 million, or $0.82 per share,
which represented approximately a 74% increase from $3.8 million, or $0.48 per
share, for the nine months ended September 30, 1996. For the three months ended
September 30, 1997, the Company's return on assets and return on equity were
1.76% and 20.15%, respectively, compared to 0.72% and 7.58%, respectively for
the three months ended September 30, 1996. The Company's return on assets and
return on equity for the nine months ended September 30, 1997 were 1.59% and
18.02%, respectively, compared to 1.09% and 11.02%, respectively, for the nine
months ended September 30, 1996. As of September 30, 1997, the Company had
total consolidated assets of approximately $587 million, total consolidated
deposits of approximately $486 million, and total consolidated shareholders'
equity of approximately $52.5 million.
On June 24, 1997, the Company entered into a definitive agreement to acquire
Citizens Gwinnett Bankshares, Inc. ("Citizens"), which management considers
probable of consummation and which is expected to close in 1997. Citizens is a
Georgia corporation and a bank holding company located in Gwinnett County,
Georgia with total consolidated assets of approximately $163 million and total
consolidated deposits of approximately $150 million as of June 30, 1997. If the
acquisition of Citizens had been consummated on June 30, 1997, the Company
would have been the fifth largest bank and thrift holding company headquartered
in the State of Georgia according to the Georgia Department of Banking and
Finance (the "Georgia Department of Banking").
PREMIER CAPITAL TRUST
Premier Capital Trust is a statutory business trust formed under Delaware law
pursuant to (i) a trust agreement, dated as of October 21, 1997, executed by
the Company, as depositor, and the trustees of Premier
5
<PAGE>
Capital Trust (together with the Property Trustee, the "Trustees"), and (ii) a
certificate of trust filed with the Delaware Secretary of State on October 21,
1997. The initial trust agreement will be amended and restated in its entirety
(as so amended and restated, the "Trust Agreement") substantially in the form
filed as an exhibit to the Registration Statement of which this Prospectus
forms a part. The Trust Agreement will be qualified as an indenture under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Upon
issuance of the Preferred Securities, the purchasers thereof will own all of
the Preferred Securities. The Company will acquire all of the Common Securities
which will represent an aggregate liquidation amount equal to at least 3% of
the total capital of Premier Capital Trust. The Common Securities will rank
pari passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that upon the occurrence and during the continuance of an
Event of Default (as defined herein) under the Trust Agreement resulting from a
Debenture Event of Default, the rights of the Company as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Preferred Securities. See "Description of the Preferred
Securities--Subordination of Common Securities." Premier Capital Trust exists
for the exclusive purposes of (i) issuing the Trust Securities representing
undivided beneficial interests in the assets of Premier Capital Trust, (ii)
investing the gross proceeds of the Trust Securities in the Subordinated
Debentures and payments thereunder issued by the Company, and (iii) engaging in
only those other activities necessary, advisable, or incidental thereto. The
Subordinated Debentures will be the only assets of Premier Capital Trust and
payments under the Subordinated Debentures will be the only revenue of Premier
Capital Trust. Premier Capital Trust has a term of 31 years, but may terminate
earlier as provided in the Trust Agreement. The principal executive office of
Premier Capital Trust is 2180 Atlanta Plaza, 950 East Paces Ferry Road,
Atlanta, Georgia 30326 and its telephone number at such address is (404) 814-
3090.
THE OFFERING
Securities 1,000,000 Preferred Securities having a Liquidation
Offered............. Amount of $25.00 per Preferred Security. The
Preferred Securities represent preferred undivided
beneficial interests in the assets of Premier Capital
Trust, which will consist solely of the Subordinated
Debentures and payments thereunder. The Company and
Premier Capital Trust have granted the Underwriters
an option, exercisable within 30 days after the date
of this Prospectus, to purchase up to an additional
150,000 Preferred Securities at the initial offering
price, solely to cover over-allotments, if any.
Payment of The Distributions payable on each Preferred Security
Distributions....... will be fixed at a rate per annum of % of the
Liquidation Amount of $25.00 per Preferred Security,
will be cumulative, will accrue from , 1997, the
date of issuance of the Preferred Securities, and
will be payable quarterly in arrears, on March 31,
June 30, September 30 and December 31 of each year,
commencing December 31, 1997. See "Description of the
Preferred Securities--Distributions--Payment of
Distributions."
Option to Extend
Interest Payment
Period..............
The Company has the right, at any time, so long as no
Debenture Event of Default has occurred and is
continuing, to defer payments of interest on the
Subordinated Debentures for a period not exceeding 20
consecutive quarters; provided, that no Extended Interest
Payment Period may end on a day other than an Interest
Payment Date or extend beyond the Stated Maturity of the
Subordinated Debentures. As a consequence of the
extension by the Company of the interest payment period,
quarterly Distributions on the Preferred
6
<PAGE>
Securities will be deferred (though such
Distributions will continue to accrue with interest
thereon compounded quarterly, since interest will
continue to accrue and compound on the Subordinated
Debentures) during any such Extended Interest Payment
Period. During an Extended Interest Payment Period,
the Company will be prohibited, subject to certain
exceptions described herein, from declaring or paying
any cash distributions with respect to its capital
stock or debt securities that rank pari passu with or
junior to the Subordinated Debentures. Upon the
termination of any Extended Interest Payment Period
and the payment of all amounts then due, the Company
may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. See
"Description of the Preferred Securities--
Distributions--Extended Interest Payment Period" and
"Description of the Subordinated Debentures--Option
to Extend Interest Payment Period."
Should an Extended Interest Payment Period occur,
holders of Preferred Securities will be required to
include deferred interest income in their gross
income for United States federal income tax purposes
in advance of receipt of the cash distributions with
respect to such deferred interest payments. See
"Material Federal Income Tax Consequences--Potential
Extension of Interest Payment Period and Original
Issue Discount."
Ranking............. The Preferred Securities will rank pari passu, and
payments thereon will be made pro rata, with the
Common Securities except as described under
"Description of Preferred Securities--Subordination
of Common Securities." The Subordinated Debentures
will be unsecured and subordinate and junior in right
of payment to the extent and in the manner set forth
in the Indenture. See "Description of the
Subordinated Debentures." The Guarantee will
constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment
to the extent and in the manner set forth in the
Guarantee. See "Description of the Guarantee." In
addition, because the Company is a holding company,
the Subordinated Debentures and the Guarantee will be
effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, including
the Banking Subsidiaries' deposit liabilities. See
"Description of the Subordinated Debentures--
Subordination."
Optional The Preferred Securities are subject to redemption,
Redemption.......... in whole or in part, upon repayment of the
Subordinated Debentures at maturity or their earlier
redemption. Subject to Federal Reserve approval, if
then required under applicable capital guidelines or
policies of the Federal Reserve, the Subordinated
Debentures are redeemable prior to maturity at the
option of the Company (i) on or after December 31,
2007 in whole at any time or in part from time to
time, or (ii) at any time, in whole (but not in
part), within 180 days following the occurrence of a
Capital Event, Tax Event or an Investment Company
Event, in each case at the redemption price equal to
100% of the principal amount of the Subordinated
Debenture, together with any accrued but unpaid
interest to the date fixed for redemption (the
"Redemption Price"). See "Description of the
Subordinated Debentures--Redemption or Exchange."
No Rating........... The Preferred Securities are not expected to be rated
by any rating service, nor is any other security
issued by the Company so rated.
7
<PAGE>
Distribution of
Subordinated
Debentures..........
The Company has the right at any time to terminate
Premier Capital Trust and cause the Subordinated
Debentures to be distributed to holders of Preferred
Securities in liquidation of Premier Capital Trust,
subject to the Company's having received prior approval
of the Federal Reserve to do so if then required under
applicable capital guidelines or policies of the Federal
Reserve. See "Description of the Preferred Securities--
Redemption or Exchange" and "Description of the Preferred
Securities--Liquidation Distribution Upon Termination."
Guarantee........... The Company has guaranteed the payment of
Distributions and payments on liquidation or
redemption of the Preferred Securities, but only in
each case to the extent of funds held by Premier
Capital Trust, as described herein. The Company and
Premier Capital Trust believe that, taken together,
the obligations of the Company under the Guarantee,
the Trust Agreement, the Subordinated Debentures, the
Indenture and the Expense Agreement provide, in the
aggregate, a full, irrevocable and unconditional
guarantee, on a subordinated basis, of all of the
obligations of Premier Capital Trust under the
Preferred Securities. The obligations of the Company
under the Guarantee and the Preferred Securities are
subordinate and junior in right of payment to all
Senior Debt, Subordinated Debt and Additional Senior
Obligations of the Company. If the Company does not
make principal or interest payments on the
Subordinated Debentures, Premier Capital Trust will
not have sufficient funds to make distributions on
the Preferred Securities; in which event, the
Guarantee will not apply to such Distributions until
Premier Capital Trust has sufficient funds available
therefor. See "Description of the Guarantee."
Voting Rights.......
The holders of the Preferred Securities will have no
voting rights except in limited circumstances. As a
condition to listing the Preferred Securities, the
American Stock Exchange has imposed certain
requirements. Specifically, if any Distributions
payable on the Preferred Securities are in arrears
for six quarterly periods, the holders of the
Preferred Securities, voting separately as a class
with any other preferred securities having similar
voting rights, will be entitled at the next regular
or special meeting of shareholders of the Company to
elect two directors to the Board of Directors of the
Company (such voting rights will continue until such
time as the Distribution arrearage on the Preferred
Securities have been paid in full). The affirmative
consent of the holders of at least 66 2/3% of the
outstanding Preferred Securities will be required by
Premier Capital Trust for amendments to the Trust
Agreement that would affect adversely the rights or
privileges of the holders of the Preferred
Securities. See "Description of the Preferred
Securities--Voting Rights; Amendment of Trust
Agreement."
ERISA Prospective purchasers should consider the
Considerations...... restrictions on purchase set forth under "ERISA
Considerations."
8
<PAGE>
Absence of Market
for the Preferred
Securities..........
The Preferred Securities will be a new issue of
securities for which there currently is no market.
Although the Preferred Securities have been approved
for listing on the American Stock Exchange, subject
to notice of issuance, there can be no assurance that
an active trading market in the Preferred Securities
will develop or if one does develop, that it will be
maintained. Accordingly, there can be no assurance as
to the development or liquidity of any market for the
Preferred Securities.
American Stock
Exchange............ The Preferred Securities have been approved for listing
on the American Stock Exchange under the symbol "PMB.PR,"
subject to notice of issuance.
For additional information regarding the Preferred Securities, see "Premier
Capital Trust I," "Use of Proceeds," "Description of the Preferred Securities,"
"Description of the Subordinated Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Subordinated Debentures and
the Guarantee," "Material Federal Income Tax Consequences," and "ERISA
Considerations."
USE OF PROCEEDS
The proceeds from the sale of the Preferred Securities offered hereby will be
used by Premier Capital Trust to purchase the Subordinated Debentures issued by
the Company. The net proceeds to the Company from the sale of Subordinated
Debentures offered hereby are estimated to be approximately $23.7 million
($27.3 million if the Underwriters' over-allotment option is exercised in
full), after deducting the underwriting commission and estimated offering
expenses. The Company intends to use the net proceeds for general corporate
purposes, including, but not limited to, financing acquisitions, repurchasing
outstanding common stock of the Company, investing in or extending credit to
its subsidiaries, reduction of long-term debt and reduction of certain short-
term borrowings of the Company. As of the date of this Prospectus, the Company
has not entered into any agreements or understandings with respect to any
potential acquisition of the type referred to in the preceding sentence, and no
discussions or negotiations with respect to any such potential acquisition are
taking place. The precise amount and timing of the application of such net
proceeds used for such corporate purposes will depend on the funding
requirements and availability of other funds to the Company and its needs.
Pending such application by the Company, such net proceeds may be temporarily
invested in short-term interest-bearing securities. The proceeds from the
Preferred Securities will qualify as Tier 1 or core capital of the Company
under the risk-based capital guidelines of the Federal Reserve. Federal Reserve
guidelines for calculation of Tier 1 capital limit the amount of cumulative
preferred stock which can be included in Tier 1 capital to 25% of total Tier 1
capital. See "Use of Proceeds."
RISK FACTORS
Prospective purchasers of the Preferred Securities should carefully consider
the risks in connection with this offering set forth under "Risk Factors."
9
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The summary below should be read in conjunction with the financial
information included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, Quarterly Report on Form 10-Q as amended by the
Company's 10-Q/A for the quarter ended June 30, 1997, and Current Report on
Form 8-K/A dated November 4, 1997 (which includes restated financial statements
of the Company giving effect to the combination of Central and Southern with
the Company, accounted for as a pooling of interests). Interim unaudited data
for the six months ended June 30, 1996 and 1997 reflect, in the opinion of
management of the Company, all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of such data. Results for the
six months ended June 30, 1996 and 1997 are not necessarily indicative of
results which may be expected for any other interim period or the year as a
whole. The consolidated financial data as of December 31, 1992, 1993 and 1994
and for the years ended December 31, 1992 and 1993 presented below are
unaudited and are based upon the audited year end financial information of the
Company, which has a fiscal year end of December 31 and the unaudited interim
financial information of an entity acquired by the Company which had a fiscal
year end of March 31. See "Available Information," "Incorporation of Certain
Documents by Reference" and "Selected Consolidated Financial Data."
<TABLE>
<CAPTION>
AS AND FOR THE
AS OF AND FOR THE YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED JUNE 30,
------------------------------------------------------ --------------------
1992 1993 1994 1995 1996 1996 1997
--------- --------- --------- --------- --------- --------- ---------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OP-
ERATIONS DATA:
Interest income........ $ 39,345 $ 31,234 $ 27,723 $ 33,575 $ 40,252 $ 19,904 $ 23,045
Interest expense....... 21,694 15,206 13,028 16,662 20,238 9,766 11,379
--------- --------- --------- --------- --------- --------- ---------
Net interest income.... 17,651 16,028 14,695 16,913 20,014 10,138 11,666
--------- --------- --------- --------- --------- --------- ---------
Provision (negative
provision) for loan
losses................ 12,283 3,732 285 (700) (418) (229) (130)
Other income........... 3,683 4,025 4,622 9,087 13,118 5,884 8,520
Other expense.......... 13,073 16,605 16,159 20,378 26,346 12,277 14,649
--------- --------- --------- --------- --------- --------- ---------
Income (loss) before
income tax expense
(benefit) and minority
interest.............. (4,022) (284) 2,873 6,322 7,204 3,974 5,667
Income tax expense
(benefit)............. (1,193) (482) 965 1,761 1,698 1,009 1,571
Minority interest in
net income of subsidi-
ary................... -- -- -- 13 12 6 8
--------- --------- --------- --------- --------- --------- ---------
Net income (loss)..... $ (2,829) $ 198 $ 1,908 $ 4,548 $ 5,494 $ 2,959 $ 4,088
========= ========= ========= ========= ========= ========= =========
PER SHARE DATA:
Net income (loss)...... $ (0.47) $ 0.03 $ 0.25 $ 0.57 $ 0.68 $ 0.37 $ 0.51
Dividends declared..... 0.04 -- 0.07 0.09 0.41(1) 0.16 0.11
Book value............. 4.78 5.57 4.93 5.79 5.97 5.79 6.36
Tangible book value.... 4.59 5.38 4.85 5.48 5.61 5.41 6.02
Weighted average shares
outstanding........... 6,898,295 7,063,906 7,041,663 7,982,660 8,091,369 7,970,193 8,062,259
SELECTED BALANCE SHEET
DATA:
Total assets........... $ 413,484 $ 385,482 $ 355,523 $ 445,374 $ 519,944 $ 476,674 $ 587,424
Securities available
for sale.............. 53,609 45,785 47,254 110,311 99,732 106,379 99,706
Securities held to ma-
turity................ 64,773 77,152 56,514 -- -- -- --
Loans held for sale.... -- 4,446 5,125 25,912 24,408 30,579 40,333
Loans, net............. 250,173 201,909 184,514 240,953 306,721 277,957 371,369
Federal funds sold..... 11,327 23,065 34,179 19,217 42,896 15,070 20,138
Total deposits......... 376,482 341,850 294,848 358,927 431,898 386,424 472,356
Total borrowings....... 756 4,399 21,144 34,462 35,242 40,220 59,088
Total shareholders' eq-
uity.................. 31,981 37,234 37,038 46,090 47,180 45,738 50,355
Total liabilities...... 381,503 348,249 318,484 399,267 472,751 430,928 537,069
PERFORMANCE RATIOS:
Return on average as-
sets.................. (0.65)% 0.05% 0.51% 1.11% 1.17% 1.28% 1.50%
Return on average equi-
ty.................... (8.49) 0.57 5.09 10.46 11.90 12.88 17.30
ASSET QUALITY RATIOS:
Nonperforming
loans/total loans, net
of unearned income and
fees.................. 2.51% 1.58% 0.98% 0.44% 0.45% 0.34% 0.27%
Nonperforming
assets/total assets... 1.95 1.55 0.98 0.45 0.46 0.32% 0.29
Allowance for loan
loss/total loans, net
of unearned income and
fees.................. 2.54 3.01 2.95 2.43 2.10 2.25 1.84
Allowance for loan
loss/nonperforming
loans................. 100.84 189.96 300.42 556.36 460.91 653.84 688.35
Allowance for loan
losses/nonperforming
assets................ 80.59 104.86 161.49 302.02 276.66 424.17 411.39
Net loan charge-off
(recoveries)/average
loans................. 3.81 1.72 0.46 (0.32) (0.33) (0.06) (0.16)
CAPITAL RATIOS:
Leverage capital ra-
tio................... 7.70% 8.19% 9.97% 10.53% 8.59% 8.99% 8.54%
Tier 1 capital ratio... 11.23 13.46 15.57 15.69 11.88 13.16 11.33
Total capital.......... 12.60 15.29 16.82 16.85 12.96 14.33 12.58
Total shareholders' eq-
uity to total assets.. 7.73 9.66 10.42 10.35 9.07 9.60 8.57
</TABLE>
- -------
(1) In 1996, a dividend related to 1995 earnings was declared and paid in
January 1996. An additional dividend related to 1996 earnings was declared
in December 1996 and paid in January 1997.
10
<PAGE>
SUMMARY PRO FORMA FINANCIAL DATA
The following unaudited pro forma financial data give effect to the merger
with Citizens as of the dates and for the periods indicated, assuming such
merger is accounted for as a pooling of interests. The unaudited pro forma
financial data are presented for informational purposes only and are not
necessarily indicative of the combined financial position or results of
operations which actually would have occurred if the transaction had been
consummated at that date and for the periods indicated or which may be obtained
in the future. The information should be read in conjunction with the unaudited
pro forma financial information included in the Company's Current Report on
Form 8-K/A dated November 4, 1997. See "Available Information," "Incorporation
of Certain Documents by Reference," and "The Company--Recent Developments."
<TABLE>
<CAPTION>
AT JUNE 30, 1997
----------------
(IN THOUSANDS)
<S> <C>
SELECTED BALANCE SHEET DATA:
Total assets............................................ $750,370
Loans and loans held for sale, net...................... 519,484
Securities available for sale........................... 139,465
Federal funds sold...................................... 20,628
Interest-bearing deposits in banks...................... 8,970
Total deposits.......................................... 622,723
Total borrowings........................................ 59,250
Total shareholders' equity.............................. 61,320
</TABLE>
<TABLE>
<CAPTION>
FOR THE
FOR THE SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------ ----------------
1994 1995 1996 1996 1997
------- ------- ------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OPERATIONS DATA:
Interest income.................... $33,517 $41,006 $51,271 $24,892 $29,650
Interest expense................... 15,087 19,873 25,343 12,046 14,056
Net interest income................ 18,430 21,133 25,928 12,846 15,594
Provision (negative provision) for
loan losses....................... 365 (582) (115) (39) 184
Net interest income after provision
(negative provision) for loan
losses............................ 18,065 21,715 26,043 12,885 15,410
Other income....................... 5,170 9,649 13,956 6,254 9,002
Other expense...................... 18,763 23,610 30,788 14,467 17,365
Income taxes expense............... 1,559 2,188 2,194 1,173 1,995
Net income......................... 2,913 5,553 7,005 3,493 5,044
Net income per common and common
equivalent share.................. 0.31 0.56 0.69 0.35 0.50
Net income per common and common
equivalent share assuming full
dilution.......................... 0.31 0.56 0.69 0.35 0.50
</TABLE>
11
<PAGE>
RISK FACTORS
Prospective investors should carefully consider, together with the other
information contained and incorporated by reference in this Prospectus, the
following risk factors before purchasing the Preferred Securities offered
hereby. Certain statements in this Prospectus and documents incorporated
herein by reference are forward-looking and are identified by the use of
forward-looking words or phrases such as "intended," "will be positioned,"
"expects," is or are "expected," "anticipates," and "anticipated." These
forward-looking statements are based on the Company's current expectations. To
the extent any of the information contained or incorporated by reference in
this Prospectus constitutes a "forward-looking statement" as defined in
Section 21E(i)(1) of the Exchange Act, the risk factors set forth below are
cautionary statements identifying important factors that could cause actual
results to differ materially from those in the forward-looking statement.
These considerations are not intended to represent a complete list of the
general or specific risks that may affect the Preferred Securities, the
Subordinated Debentures or the Company and Premier Capital Trust. It should be
recognized that other risks may be significant, presently or in the future.
RISK FACTORS RELATING TO THE PREFERRED SECURITIES
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE GUARANTEE AND THE SUBORDINATED
DEBENTURES. The obligations of the Company under the Guarantee issued for the
benefit of the holders of Preferred Securities and under the Subordinated
Debentures are unsecured and rank subordinate and junior in right of payment
to all Senior Debt, Subordinated Debt and Additional Senior Obligations of the
Company. Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any of its subsidiaries upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability
of holders of the Preferred Securities to benefit indirectly from such
distribution) is subject to the prior claims of creditors of that subsidiary,
except to the extent that the Company may itself be recognized as a creditor
of that subsidiary. At June 30, 1997, the Banking Subsidiaries and Premier
Lending had total liabilities (excluding liabilities owed to the Company) of
approximately $531 million. The Subordinated Debentures, therefore, will be
effectively subordinated to all existing and future liabilities of the
subsidiaries and holders of Subordinated Debentures and Preferred Securities
should look only to the assets of the Company for payments on the Subordinated
Debentures. Neither the Indenture, the Guarantee nor the Trust Agreement
places any limitation on the amount of secured or unsecured debt, including
Senior Debt, Subordinated Debt and Additional Senior Obligations, that may be
incurred by the Company. See "Description of the Guarantee--Status of the
Guarantee" and "Description of the Subordinated Debentures--Subordination."
The ability of Premier Capital Trust to pay amounts due on the Preferred
Securities is solely dependent upon the Company's making payments on the
Subordinated Debentures as and when required.
Regulations limit the amount of dividends that may be paid by the Banking
Subsidiaries without prior regulatory approval. As of June 30, 1997, the
Banking Subsidiaries could declare additional dividends to the Company,
without regulatory approval, of approximately $2.6 million. Federal and state
regulatory agencies also have the authority to limit further the Banking
Subsidiaries' payment of dividends based on other factors, such as the
maintenance of adequate capital for the Banking Subsidiaries, which could
reduce the amount of dividends otherwise payable.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES. The Company has the right under the Indenture, so long as no
Debenture Event of Default has occurred and is continuing, to defer the
payment of interest on the Subordinated Debentures at any time or from time to
time for a period not exceeding 20 consecutive quarters with respect to each
Extended Interest Payment Period; provided that no Extended Interest Payment
Period may end on a day other than an Interest Payment Date or extend beyond
the Stated Maturity of the Subordinated Debentures. As a consequence of any
such deferral, quarterly Distributions on the Preferred Securities by Premier
Capital Trust will be deferred (and the amount of Distributions to which
holders of the Preferred Securities are entitled will accumulate additional
Distributions thereon at the rate of % per annum, compounded quarterly from
the relevant payment date for such Distributions) during any such Extended
Interest Payment Period. During any such Extended Interest Payment
12
<PAGE>
Period, the Company may not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect
to, any of the Company's capital stock (other than the reclassification of any
class of the Company's capital stock into another class of capital stock),
(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
with or junior in interest to the Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks pari passu
with or junior in interest to the Subordinated Debentures (other than payments
under the Guarantee), or (iii) redeem, purchase or acquire less than all of
the Subordinated Debentures or any of the Preferred Securities. Prior to the
termination of any such Extended Interest Payment Period, the Company may
further defer the payment of interest; provided that no Extended Interest
Payment Period may exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Subordinated Debentures. Upon the termination of any Extended
Interest Payment Period and the payment of all interest then accrued and
unpaid (together with interest thereon at the annual rate of % compounded
quarterly, to the extent permitted by applicable law), the Company may elect
to begin a new Extended Interest Payment Period, subject to the above
requirements. Subject to the foregoing, there is no limitation on the number
of times that the Company may elect to begin an Extended Interest Payment
Period. See "Description of the Preferred Securities--Distributions--Extended
Interest Payment Period" and "Description of the Subordinated Debentures--
Option to Extend Interest Payment Period."
Should an Extended Interest Payment Period occur, each holder of Preferred
Securities will be required to accrue and recognize income (in the form of
original issue discount) in respect of its pro rata share of the interest
accruing on the Subordinated Debentures held by Premier Capital Trust for
United States federal income tax purposes. A holder of Preferred Securities
must, as a result, include such income in gross income for United States
federal income tax purposes in advance of the receipt of cash, and will not
receive the cash related to such income from Premier Capital Trust if the
holder disposes of the Preferred Securities prior to the record date for the
payment of the related Distributions. See "Material Federal Income Tax
Consequences--Potential Extension of Interest Payment Period and Original
Issue Discount."
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures. Should the Company elect, however, to exercise such
right in the future, the market price of the Preferred Securities is likely to
be adversely affected. A holder that disposes of its Preferred Securities
during an Extended Interest Payment Period, therefore, might not receive the
same return on its investment as a holder that continues to hold its Preferred
Securities. As a result of the existence of the Company's right to defer
interest payments, the market price of the Preferred Securities may be more
volatile than the market prices of other securities on which original issue
discount accrues that are not subject to such optional deferrals.
CAPITAL EVENT; TAX EVENT; OR INVESTMENT COMPANY EVENT; REDEMPTION. The
Company has the right to redeem the Subordinated Debentures in whole (but not
in part) within 180 days following the occurrence of a Capital Event, Tax
Event or Investment Company Event (whether occurring before or after December
31, 2007), and, therefore, cause a mandatory redemption of the Preferred
Securities. The exercise of such right is subject to the Company's having
received prior approval of the Federal Reserve to do so if then required under
applicable capital guidelines or policies of the Federal Reserve.
"Capital Event" means the receipt by Premier Capital Trust of an opinion of
counsel experienced in such matters (which may be counsel to the Company) that
the Company cannot, or, within 90 days after the date of the opinion of such
counsel, will not be permitted by the applicable regulatory authorities, due
to a change in law, regulation, policy or guideline or interpretation or
application of law or regulation, policy or guideline, to account for the
Preferred Securities as Tier 1 capital under the capital guidelines or
policies of the Federal Reserve.
"Tax Event" means the receipt by Premier Capital Trust of an opinion of
counsel experienced in such matters (which may be counsel to the Company) to
the effect that, as a result of any amendment to, or change (including any
announced prospective change) in the laws (or any regulations thereunder) of
the United States or
13
<PAGE>
any political subdivision or taxing authority thereof or therein, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change
is effective or such pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities under the Trust Agreement, there
is more than an insubstantial risk that (i) Premier Capital Trust is, or will
be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the
Subordinated Debentures, (ii) interest payable by the Company on the
Subordinated Debentures is not, or, within 90 days of such opinion, will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes, or (iii) Premier Capital Trust is, or will be within 90
days of the date of the opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges. The Trust or the Company
must request and receive an opinion with regard to such matters within a
reasonable period of time after the Company becomes aware of the possible
occurrence of any of the events described in clauses (i) through (iii) above.
"Investment Company Event" means the receipt by Premier Capital Trust of an
opinion of counsel experienced in such matters (which may be counsel to the
Company) to the effect that, as a result of the occurrence of a change in law
or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, Premier Capital Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which change becomes
effective on or after the date of original issuance of the Preferred
Securities.
In recent years, there have been several proposals to adopt legislation
which, if enacted and made applicable to the Subordinated Debentures, would
preclude the Company from deducting interest thereon. The most recent proposal
was made by the Clinton Administration on March 19, 1997. Such proposals have
not been adopted by Congress, but there can be no assurance that similar
proposals will not be adopted in the future and made applicable to the
Subordinated Debentures. Accordingly, there can be no assurance that any such
legislation will not result in a Tax Event which would permit the Company to
cause a mandatory redemption of the Preferred Securities before, or after,
December 31, 2007, at the Redemption Price.
EXCHANGE OF PREFERRED SECURITIES FOR SUBORDINATED DEBENTURES. The Company
has the right at any time to dissolve, wind-up or terminate Premier Capital
Trust and cause the Subordinated Debentures to be distributed to the holders
of the Preferred Securities in exchange therefor in liquidation of Premier
Capital Trust. The exercise of such right is subject to the Company's having
received prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve. The Company
will have the right, in certain circumstances, to redeem the Subordinated
Debentures in whole or in part, in lieu of a distribution of the Subordinated
Debentures by Premier Capital Trust, in which event Premier Capital Trust will
redeem the Trust Securities on a pro rata basis to the same extent as the
Subordinated Debentures are redeemed by the Company. Any such distribution or
redemption prior to the Stated Maturity will be subject to prior approval of
the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve. See "Description of the Preferred
Securities--Redemption or Exchange--Capital Event, Tax Event or Investment
Company Event Redemption."
Under current United States federal income tax law, a distribution of
Subordinated Debentures upon the dissolution of Premier Capital Trust would
not be a taxable event to holders of the Preferred Securities. If, however,
Premier Capital Trust is characterized as an association taxable as a
corporation at the time of the dissolution of Premier Capital Trust, the
distribution of the Subordinated Debentures may constitute a taxable event to
holders of Preferred Securities. Moreover, upon occurrence of a Tax Event, a
dissolution of Premier Capital Trust in which holders of the Preferred
Securities receive cash may be a taxable event to such holders. See "Material
Federal Income Tax Consequences--Receipt of Subordinated Debentures or Cash
Upon Liquidation of Premier Capital Trust."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities upon a dissolution or liquidation of
14
<PAGE>
Premier Capital Trust. The Preferred Securities or the Subordinated
Debentures, may, therefore, trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby. Because holders of
Preferred Securities may receive Subordinated Debentures, prospective
purchasers of Preferred Securities are also making an investment decision with
regard to the Subordinated Debentures and should carefully review all the
information regarding the Subordinated Debentures contained herein.
If the Subordinated Debentures are distributed to the holders of Preferred
Securities upon the liquidation of Premier Capital Trust, the Company will use
its best efforts to list the Subordinated Debentures on the American Stock
Exchange or such stock exchanges, if any, on which the Preferred Securities
are then listed.
RIGHTS UNDER THE GUARANTEE. State Street will act as Guarantee Trustee and
will hold the Guarantee for the benefit of the holders of the Preferred
Securities. State Street also will act as Property Trustee and as Debenture
Trustee under the Indenture. Wilmington Trust Company will act as the Delaware
Trustee under the Trust Agreement. The Guarantee guarantees to the holders of
the Preferred Securities, to the extent not paid by Premier Capital Trust, (i)
any accrued and unpaid Distributions required to be paid on the Preferred
Securities, to the extent that Premier Capital Trust has funds available
therefor at such time, (ii) the Redemption Price (as defined herein) with
respect to any Preferred Securities called for redemption, to the extent that
Premier Capital Trust has funds available therefor at such time, and (iii)
upon a voluntary or involuntary dissolution, winding-up or liquidation of
Premier Capital Trust (other than in connection with the distribution of
Subordinated Debentures to the holders of Preferred Securities or a redemption
of all of the Preferred Securities), the lesser of (a) the amount of the
Liquidation Distribution (as defined herein), to the extent Premier Capital
Trust has funds available therefor at such time, and (b) the amount of assets
of Premier Capital Trust remaining available for distribution to holders of
the Preferred Securities in liquidation of Premier Capital Trust. The holders
of not less than a majority in Liquidation Amount of the Preferred Securities
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of the
Guarantee or to direct the exercise of any trust power conferred upon the
Guarantee Trustee under the Guarantee. Any holder of the Preferred Securities
may institute a legal proceeding directly against the Company to enforce its
rights under the Guarantee without first instituting a legal proceeding
against Premier Capital Trust, the Guarantee Trustee or any other Person (as
defined in the Guarantee). If the Company were to default on its obligation to
pay amounts payable under the Subordinated Debentures, Premier Capital Trust
would lack funds for the payment of Distributions or amounts payable on
redemption of the Preferred Securities or otherwise, and, in such event,
holders of Preferred Securities would not be able to rely upon the Guarantee
for such amounts. In the event, however, that a Debenture Event of Default has
occurred and is continuing and such event is attributable to the failure of
the Company to pay interest on or principal of the Subordinated Debentures on
the payment date on which such payment is due and payable, then a holder of
Preferred Securities may institute a legal proceeding directly against the
Company for enforcement of payment to such holder of the principal of or
interest on such Subordinated Debentures having a principal amount equal to
the aggregate Liquidation Amount of the Preferred Securities of such holder (a
"Direct Action"). The exercise by the Company of its right, as described
herein, to defer the payment of interest on the Subordinated Debentures does
not constitute a Debenture Event of Default. In connection with such Direct
Action, the Company will have a right of set-off under the Indenture to the
extent of any payment made by the Company to such holder of Preferred
Securities in the Direct Action. Except as described herein, holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Subordinated Debentures or assert directly any
other rights in respect of the Subordinated Debentures. See "Description of
the Subordinated Debentures--Enforcement of Certain Rights by Holders of the
Preferred Securities," "--Debenture Events of Default" and "Description of the
Guarantee."
The Trust Agreement provides that each holder of Preferred Securities by
acceptance thereof agrees to the provisions of the Guarantee and the
Indenture.
LIMITED VOTING RIGHTS. Holders of Preferred Securities will have no voting
rights except in limited circumstances relating only to the modification of
the Preferred Securities and the exercise of the rights of Premier Capital
Trust as holder of the Subordinated Debentures and the Guarantee. As a
condition to listing the Preferred Securities, the American Stock Exchange has
imposed certain requirements. Specifically, if any
15
<PAGE>
Distributions payable on the Preferred Securities are in arrears for six
quarterly periods, the holders of the Preferred Securities, voting separately
as a class with any other preferred securities having similar voting rights,
will be entitled at the next regular or special meeting of shareholders of the
Company to elect two directors to the Board of Directors of the Company (such
voting rights will continue until such time as the Distribution arrearage on
the Preferred Securities have been paid in full). The affirmative consent of
the holders of at least 66 2/3% of the outstanding Preferred Securities will
be required by Premier Capital Trust for amendments to the Trust Agreement
that would affect adversely the rights or privileges of the holders of the
Preferred Securities. Holders of Preferred Securities will not be entitled to
vote to appoint, remove or replace the Property Trustee or the Delaware
Trustee, as such voting rights are vested exclusively in the holder of the
Common Securities (except upon the occurrence of certain events described
herein). The Property Trustee, the Administrative Trustees and the Company may
amend the Trust Agreement without the consent of holders of Preferred
Securities to ensure that Premier Capital Trust will be classified for United
States federal income tax purposes as a grantor trust even if such action
adversely affects the interests of such holders. See "Description of the
Preferred Securities--Voting Rights; Amendment of Trust Agreement" and "--
Removal of Premier Capital Trust Trustees."
TRADING PRICE; ABSENCE OF PRIOR MARKET FOR THE PREFERRED SECURITIES. The
Preferred Securities may trade at prices that do not fully reflect the value
of accrued but unpaid interest with respect to the underlying Subordinated
Debentures. A holder of Preferred Securities that disposes of its Preferred
Securities between record dates for payments of Distributions (and
consequently does not receive a Distribution from Premier Capital Trust for
the period prior to such disposition) will nevertheless be required to include
accrued but unpaid interest on the Subordinated Debentures through the date of
disposition in income as ordinary income and to add such amount to its
adjusted tax basis in its pro rata share of the underlying Subordinated
Debentures deemed disposed of. Such holder will recognize a capital loss to
the extent the selling price (which may not fully reflect the value of accrued
but unpaid interest) is less than its adjusted tax basis (which will include
all accrued but unpaid interest). Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for United States
federal income tax purposes. See "Material Federal Income Tax Consequences--
Disposition of Preferred Securities."
There is no current public market for the Preferred Securities. Although
application has been made to have the Preferred Securities approved for
quotation on the American Stock Exchange there can be no assurance that an
active public market will develop for the Preferred Securities or that, if
such market develops, the market price will equal or exceed the public
offering price set forth on the cover page of this Prospectus. The public
offering price for the Preferred Securities has been determined through
negotiations between the Company and the Underwriters. Prices for the
Preferred Securities will be determined in the marketplace and may be
influenced by many factors, including prevailing interest rates, the liquidity
of the market for the Preferred Securities, investor perceptions of the
Company and general industry and economic conditions. In addition,
notwithstanding the registration of the Preferred Securities, holders who are
"affiliates" of the Company or Premier Capital Trust as defined under Rule 405
of the Securities Act may publicly offer for sale or resell the Preferred
Securities only in compliance with the provisions of Rule 144 under the
Securities Act.
PREFERRED SECURITIES ARE NOT INSURED. The Preferred Securities are not
insured by the Bank Insurance Fund or the Savings Association Insurance Fund
of the Federal Deposit Insurance Corporation ("FDIC") or by any other
governmental agency.
RISK FACTORS RELATING TO THE COMPANY
RELIANCE ON RESIDENTIAL MORTGAGE ORIGINATIONS TO PRODUCE FEE INCOME. The
market for residential mortgages is highly volatile and an increase in
interest rates could have a material adverse effect on both non-interest
income and interest income and in the growth of the Company's residential
mortgage portfolio. In addition, a substantial portion of the Company's other
income has been derived from gains on the sale of mortgage loans and mortgage
production fees consisting of proceeds from the sale of mortgage servicing
rights, loan origination fees and discount points. Due to the cyclical nature
of residential mortgage originations, there
16
<PAGE>
can be no assurance that the Company will be able to sustain recent levels of
gains on the sale of mortgage loans and mortgage production fees.
STATUS OF THE COMPANY AS A BANK HOLDING COMPANY. The Company is a legal
entity separate and distinct from its subsidiaries, although the principal
source of the Company's cash revenues is dividends from its subsidiaries. The
right of the Company to participate in the assets of any subsidiary upon the
latter's liquidation, reorganization or otherwise (and thus the ability of the
holders of the Preferred Securities to benefit indirectly from any such
distribution) will be subject to the claims of the subsidiaries' creditors,
which will take priority except to the extent that the Company may itself be a
creditor with a recognized claim.
Regulations limit the amount of dividends that may be paid by the Banking
Subsidiaries without prior regulatory approval. As of June 30, 1997, the
Banking Subsidiaries could declare additional dividends to the Company,
without regulatory approval, of approximately $2.6 million.
The Company's subsidiaries are also subject to restrictions under federal
law which limit the transfer of funds by any of the Banking Subsidiaries to
the Company and Premier Lending, whether in the form of loans, extensions of
credit, investments, asset purchases or otherwise. Such transfers by any of
the Banking Subsidiaries to the Company or any affiliate of such Banking
Subsidiary is limited to 10% of such Banking Subsidiary's capital and surplus
and, with respect to the Company and all such nonbanking subsidiaries, to an
aggregate of 20% of such Banking Subsidiary's capital and surplus.
Furthermore, such loans and extensions of credit are required to be secured in
specific amounts.
GROWTH. The Company has grown and may seek to continue to grow by acquiring
other financial institutions and branches. However, the market for
acquisitions is highly competitive. Moreover, any acquisitions will be subject
to regulatory approval and there can be no assurance that the Company will
obtain such approvals. The Company may not be as successful in the future as
it has been in the past in identifying acquisition candidates, integrating
acquired institutions or preventing deposit erosion at acquired institutions
or branches. Furthermore, the Company's ability to grow through acquisitions
will depend on its maintaining sufficient regulatory capital levels and on
economic conditions.
There is no assurance that the Company will not encounter unforeseen
expenses, as well as difficulties and complications in integrating expanded
operations and new employees without disruption to overall operations. In
addition, such rapid growth may adversely affect the Company's operating
results because of many factors, including start-up costs, diversion of
management time and resources, asset quality and required operating
adjustments. There can be no assurance that the Company will successfully
integrate or achieve the anticipated benefits of its growth or expanded
operations, and there is no assurance that rapid growth in its loan portfolio
will not result in an increase in the Company's loan loss experience.
COMPETITION. The Company's subsidiaries face substantial competition for
loans and deposits as well as other sources of funding in the communities they
serve. Competing providers include other national and state banks, thrifts and
trust companies, insurance companies, mortgage banking operations, credit
unions, finance companies, money market funds and other financial and non-
financial companies which may offer products functionally equivalent to those
offered by the Company's subsidiaries. Many competing providers have greater
financial resources than the Company and offer services within and outside the
market areas served by the Company's subsidiaries.
DEVELOPMENTS IN TECHNOLOGY. The market for financial services, including
banking services, is increasingly affected by advances in technology,
including developments in telecommunications, data processing, computers,
automation, Internet-based banking, telebanking, debit cards and so-called
"smart" cards. The ability of the Company to compete successfully in its
markets may depend on the extent to which it is able to exploit such
technological changes. However, there can be no assurance that the development
of these or any other new technologies, or the Company's success or failure in
anticipating or responding to such developments, will materially affect the
Company's business, financial condition and operating results.
17
<PAGE>
THE COMPANY
GENERAL
The Company, a Georgia corporation, is a bank and thrift holding company
headquartered in Atlanta, Georgia. Through the Banking Subsidiaries, the
Company operates 16 banking offices located in the Atlanta metropolitan area
and in northern and central Georgia. In these markets, the Banking
Subsidiaries provide a broad array of community banking services, including:
loans to and deposits of small and medium-sized businesses; residential,
construction and development loans; commercial real estate loans; consumer
loans and a variety of commercial and consumer deposit accounts.
In addition, through its wholly-owned mortgage banking subsidiary, Premier
Lending, the Company operates eight mortgage loan production offices in the
Atlanta metropolitan area and one in each of Jacksonville, Florida,
Charleston, South Carolina, and Mobile, Alabama. Premier Lending is a retail
originator of residential mortgage loans which are sold to correspondent
mortgage investors and is an approved FNMA and FHLMC seller-servicer of
mortgage loans and an approved Department of HUD and VA mortgage originator.
The Company is a locally-focused, community-oriented financial services
holding company with several specialized lines of business such as commercial
finance (including asset-based loans), SBA lending, residential construction
lending, residential mortgage loan origination and commercial real estate
mortgage loan origination. The Company's extensive knowledge of both its
product lines and local markets allows it to compete effectively with larger
institutions by offering a wide range of products while maintaining strong
community relationships and name recognition within its markets. In addition,
management believes that there continues to be increased opportunities in the
retail and small commercial loan product market as larger competitors focus on
the higher dollar and volume loan product markets.
The Company's objective is to be the preeminent provider of banking services
for small and medium-sized businesses, focusing on internal growth through
branching in key markets, developing new products and cross-selling its
banking products to existing and new mortgage borrowers. In addition,
management intends to enhance shareholder value by continuing to increase its
market share through engaging in additional mergers and acquisitions of banks,
bank holding companies, thrifts, mortgage companies and insurance brokerage
operations.
Acquisitions of unaffiliated financial institutions during the past two
years have been a principal source of the Company's growth. On August 31,
1996, the Company acquired a thrift holding company then named Premier
Bancshares, Inc., and on June 23, 1997, the Company acquired Central and
Southern. As a result of these two transactions, the Company added nine
banking offices and approximately $326 million in assets and approximately
$260 million in deposits to its existing franchise. The historical financial
statements of the Company have been restated to give effect to these
acquisitions which were accounted for as poolings of interests. On October 17,
1997, the Company acquired Traditional and merged Traditional with and into
Premier Lending, adding five loan production offices to Premier Lending's
existing franchise. With the consummation of the Traditional acquisition, the
Company is one of the largest volume residential mortgage lenders based in the
State of Georgia, averaging approximately $55 million in loan closings per
month for the nine months ended September 30, 1997. See "Incorporation of
Certain Documents by Reference" and "--Recent Developments."
As of September 1, 1997, the Banking Subsidiaries and Premier Lending
employed approximately 351 full-time equivalent employees, of which 224 worked
for the Banking Subsidiaries and 127 worked for Premier Lending. Neither the
Company nor any of its subsidiaries is a party to any collective bargaining
agreement.
Premier Bank and Central and Southern Bank are Georgia state banks, Central
and Southern Bank of North Georgia is a federal savings association, and
Premier Lending is a Georgia corporation. The principal executive offices of
the Company are located at 2180 Atlanta Plaza, 950 E. Paces Ferry Road,
Atlanta, Georgia 30326, and its telephone number at such address is (404) 814-
3090.
18
<PAGE>
RECENT DEVELOPMENTS
On October 9, 1997, the Company announced its operating results for the
three and nine months ended September 30, 1997. Net income increased
approximately 197% to $2.6 million, or $0.32 per share, for the three months
ended September 30, 1997, from approximately $865,000, or $0.11 per share, for
the three months ended September 30, 1996. For the nine months ended September
30, 1997, the Company reported net income of approximately $6.7 million, or
$0.82 per share, which represented approximately a 74% increase, from $3.8
million, or $0.48 per share, for the nine months ended September 30, 1996. For
the three months ended September 30, 1997, the Company's return on assets and
return on equity were 1.76% and 20.15%, respectively, compared to 0.72% and
7.58%, respectively, for the three months ended September 30, 1996. The
Company's return on assets and return on equity for the nine months ended
September 30, 1997 were 1.59% and 18.02%, respectively, compared to 1.09% and
11.02%, respectively, for the nine months ended September 30, 1996. As of
September 30, 1997, the Company had total consolidated assets of approximately
$587 million, total consolidated deposits of approximately $486 million, and
total consolidated shareholders' equity of approximately $52.5 million.
On June 24, 1997, the Company entered into a definitive agreement to acquire
Citizens, which management considers probable of consummation and which is
expected to close in 1997. Citizens is a Georgia corporation and a bank
holding company located in Gwinnett County, Georgia with total consolidated
assets of approximately $163 million and total consolidated deposits of
approximately $150 million as of June 30, 1997. If the acquisition of Citizens
had been consummated on June 30, 1997, the Company would be the fifth largest
bank and thrift holding company headquartered in the State of Georgia
according to the Georgia Department of Banking.
The Company is in the process of reorganizing certain of the Banking
Subsidiaries. In connection with the reorganization, the Company will convert
the current main office of Central and Southern Bank of North Georgia located
in Greensboro, Georgia to a branch of Central and Southern Bank. Central and
Southern Bank and Central and Southern Bank of North Georgia have entered into
a Purchase and Assumption Agreement whereby Central and Southern Bank will
purchase all of the assets and assume all of the liabilities, respectively, of
the Greensboro branch of Central and Southern Bank of North Georgia.
Immediately following consummation of the purchase and assumption transaction,
Central and Southern Bank of North Georgia will merge with and into Premier
Bank. Premier Bank will be the resulting institution following the merger.
Immediately following consummation of the merger, Central and Southern Bank of
North Georgia's federal stock association charter shall be deemed to be
canceled and will be surrendered to the Office of Thrift Supervision.
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<PAGE>
ACCOUNTING TREATMENT
Premier Capital Trust will be treated, for financial reporting purposes, as
a subsidiary of the Company and, accordingly, the accounts of Premier Capital
Trust will be included in the consolidated financial statements of the
Company. The Preferred Securities will be presented as a separate line item in
the consolidated balance sheet of the Company under the caption "Guaranteed
Preferred Beneficial Interests in the Company's Subordinated Debentures," and
appropriate disclosures about the Preferred Securities, the Guarantee and the
Subordinated Debentures will be included in the notes to the Company's
consolidated financial statements.
All future reports of the Company filed under the Exchange Act will (i)
present the Trust Securities issued by Premier Capital Trust on the balance
sheet as a separate line item entitled "Guaranteed Preferred Beneficial
Interests in the Company's Subordinated Debentures," (ii) include in a
footnote to the financial statements disclosure that the sole assets of
Premier Capital Trust are the Subordinated Debentures (including the
outstanding principal amount, interest rate and maturity date of such
Subordinated Debentures), and (iii) include in a footnote to the financial
statements disclosure that the Company owns all of the Common Securities of
Premier Capital Trust, the sole assets of Premier Capital Trust are the
Subordinated Debentures, and the back-up obligations, in the aggregate
constitute a full and unconditional guarantee by the Company of the
obligations of Premier Capital Trust under the Preferred Securities.
USE OF PROCEEDS
The proceeds from the sale of the Preferred Securities offered hereby will
be used by Premier Capital Trust to purchase the Subordinated Debentures from
the Company. The net proceeds to the Company from the sale of Subordinated
Debentures offered hereby are estimated to be approximately $23.7 million
($27.3 million if the Underwriters' over-allotment option is exercised in
full), after deducting the underwriting commission and estimated offering
expenses. The Company intends to use the net proceeds for general corporate
purposes, including, but not limited to, financing acquisitions, repurchasing
of outstanding common stock of the Company, investing in or extending credit
to its subsidiaries, reduction of long-term debt and reduction of certain
short-term borrowings of the Company. As of the date of this Prospectus, the
Company has not entered into any agreements or understandings with respect to
any potential acquisition of the type referred to in the preceding sentence,
and no discussions or negotiations with respect to any such potential
acquisition are taking place. The precise amount and timing of the application
of such net proceeds used for such corporate purposes will depend on the
funding requirements and availability of other funds to the Company and its
needs. Pending such application by the Company, such net proceeds may be
temporarily invested in short-term interest-bearing securities. The proceeds
from the Preferred Securities will qualify as Tier 1 or core capital with
respect to the Company under the risk-based capital guidelines established by
the Federal Reserve. Federal Reserve guidelines for calculation of Tier 1
capital limit the amount of cumulative preferred stock which can be included
in Tier 1 capital to 25% of total Tier 1 capital.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth for the respective periods indicated the
ratios of the Company's consolidated earnings to fixed charges.
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED JUNE 30,
---------------------------------- ---------------
1992 1993 1994 1995 1996 1996 1997
-------- ------- ----- ----- ----- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges:
Excluding interest on de-
posits................... (72.13)x (0.69)x 5.24x 3.76x 3.61x 3.84x 5.40x
Including interest on de-
posits................... 0.81x 0.98x 1.22x 1.38x 1.36x 1.41x 1.50x
</TABLE>
For the years ended December 31, 1992 and 1993, the earnings were not
adequate to cover fixed charges. The deficiency was $4.0 million and $284,000
for the years ended December 31, 1992 and 1993, respectively, for each
computation. For purposes of computing the ratio, earnings represent pretax
income before extraordinary items and cumulative effect of changes in
accounting principles plus fixed charges. Fixed charges, excluding interest on
deposits, include interest expense (other than on deposits) and the proportion
deemed representative of the interest factor of rent expense, net of income
from subleases. Fixed charges, including interest on deposits, include all
interest expense and the proportion deemed representative of the interest
factor of rent expense, net of income from subleases.
20
<PAGE>
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of
the Company as of June 30, 1997, and as adjusted to give effect to the
consummation of the offering of the Preferred Securities offered hereby and
the application of the net proceeds thereof as if the sale of the Preferred
Securities had been consummated on June 30, 1997, and as further adjusted to
give effect to the merger with Citizens as of June 30, 1997. The following
data should be read in conjunction with the financial information included in
the documents incorporated by reference. See "Incorporation of Certain
Documents by Reference" and "Use of Proceeds."
<TABLE>
<CAPTION>
AS OF
JUNE 30, 1997
-------------------------------------------
AS ADJUSTED
AS ADJUSTED FOR FOR CITIZENS MERGER
PREFERRED AND PREFERRED
SECURITIES SECURITIES
ACTUAL ISSUANCE ISSUANCE
------- --------------- -------------------
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C> <C>
Total long-term debt payable....... $28,015 $ 28,015 $ 28,015
------- -------- --------
Guaranteed preferred beneficial in-
terests in the Company's subordi-
nated debentures.................. -- 25,000 25,000
------- -------- --------
Shareholders' equity:
Common stock; $1.00 par value;
20,000,000 authorized shares;
7,917,298 shares issued and out-
standing......................... 7,917 7,917 9,984
Capital surplus................... 23,886 23,886 27,951
Unrealized gains on securities
available for sale............... 203 203 303
Retained earnings................. 18,349 18,349 23,082
------- -------- --------
Total shareholders' equity....... 50,355 50,355 61,320
------- -------- --------
Total capitalization............ $78,370 $103,370 $114,335
======= ======== ========
</TABLE>
21
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The summary below should be read in conjunction with the financial
information included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, Quarterly Report on Form 10-Q as amended by the
Company's 10-Q/A for the quarter ended June 30, 1997, and Current Report on
Form 8-K/A dated November 4, 1997 (which includes restated financial
statements of the Company giving effect to the combination of Central and
Southern with the Company, accounted for as a pooling of interests). Interim
unaudited data for the six months ended June 30, 1996 and 1997 reflect, in the
opinion of management of the Company, all adjustments (consisting only of
normal recurring adjustments) necessary for a fair presentation of such data.
Results for the six months ended June 30, 1996 and 1997 are not necessarily
indicative of results which may be expected for any other interim period or
the year as a whole. The consolidated financial data as of December 31, 1992,
1993 and 1994 and for the years ended December 31, 1992 and 1993 presented
below are unaudited and are based upon the audited year end financial
information of the Company, which has a fiscal year end of December 31 and the
unaudited interim financial information of an entity acquired by the Company
which had a fiscal year end of March 31. See "Available Information" and
"Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
AS AND FOR THE
AS OF AND FOR THE YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED JUNE 30,
------------------------------------------------------ --------------------
1992 1993 1994 1995 1996 1996 1997
--------- --------- --------- --------- --------- --------- ---------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OP-
ERATIONS DATA:
Interest income........ $ 39,345 $ 31,234 $ 27,723 $ 33,575 $ 40,252 $ 19,904 $ 23,045
Interest expense....... 21,694 15,206 13,028 16,662 20,238 9,766 11,379
--------- --------- --------- --------- --------- --------- ---------
Net interest income.... 17,651 16,028 14,695 16,913 20,014 10,138 11,666
--------- --------- --------- --------- --------- --------- ---------
Provision (negative
provision) for loan
losses................ 12,283 3,732 285 (700) (418) (229) (130)
Other income........... 3,683 4,025 4,622 9,087 13,118 5,884 8,520
Other expense.......... 13,073 16,605 16,159 20,378 26,346 12,277 14,649
--------- --------- --------- --------- --------- --------- ---------
Income (loss) before
income tax expense
(benefit) and minority
interest.............. (4,022) (284) 2,873 6,322 7,204 3,974 5,667
Income tax expense
(benefit)............. (1,193) (482) 965 1,761 1,698 1,009 1,571
Minority interest in
net income of subsidi-
ary................... -- -- -- 13 12 6 8
--------- --------- --------- --------- --------- --------- ---------
Net income (loss)..... $ (2,829) $ 198 $ 1,908 $ 4,548 $ 5,494 $ 2,959 $ 4,088
========= ========= ========= ========= ========= ========= =========
PER SHARE DATA:
Net income (loss)...... $ (0.47) $ 0.03 $ 0.25 $ 0.57 $ 0.68 $ 0.37 $ 0.51
Dividends declared..... 0.04 -- 0.07 0.09 0.41(1) 0.16 0.11
Book value............. 4.78 5.57 4.93 5.79 5.97 5.79 6.36
Tangible book value.... 4.59 5.38 4.85 5.48 5.61 5.41 6.02
Weighted average shares
outstanding........... 6,898,295 7,063,906 7,041,663 7,982,660 8,091,369 7,970,193 8,062,259
SELECTED BALANCE SHEET
DATA:
Total assets........... $ 413,484 $ 385,482 $ 355,523 $ 445,374 $ 519,944 $ 476,674 $ 587,424
Securities available
for sale.............. 53,609 45,785 47,254 110,311 99,732 106,379 99,706
Securities held to ma-
turity................ 64,773 77,152 56,514 -- -- -- --
Loans held for sale.... -- 4,446 5,125 25,912 24,408 30,579 40,333
Loans, net............. 250,173 201,909 184,514 240,953 306,721 277,957 371,369
Federal funds sold..... 11,327 23,065 34,179 19,217 42,896 15,070 20,138
Total deposits......... 376,482 341,850 294,848 358,927 431,898 386,424 472,356
Total borrowings....... 756 4,399 21,144 34,462 35,242 40,220 59,088
Total shareholders' eq-
uity.................. 31,981 37,234 37,038 46,090 47,180 45,738 50,355
Total liabilities...... 381,503 348,249 318,484 399,267 472,751 430,928 537,069
PERFORMANCE RATIOS:
Return on average as-
sets.................. (0.65)% 0.05% 0.51% 1.11% 1.17% 1.28% 1.50%
Return on average equi-
ty.................... (8.49) 0.57 5.09 10.46 11.90 12.88 17.30
ASSET QUALITY RATIOS:
Nonperforming
loans/total loans, net
of unearned income and
fees.................. 2.51% 1.58% 0.98% 0.44% 0.45% 0.34% 0.27%
Nonperforming
assets/total assets... 1.95 1.55 0.98 0.45 0.46 0.32% 0.29
Allowance for loan
loss/total loans, net
of unearned income and
fees.................. 2.54 3.01 2.95 2.43 2.10 2.25 1.84
Allowance for loan
loss/nonperforming
loans................. 100.84 189.96 300.42 556.36 460.91 653.84 688.35
Allowance for loan
losses/nonperforming
assets................ 80.59 104.86 161.49 302.02 276.66 424.17 411.39
Net loan charge-off
(recoveries)/average
loans................. 3.81 1.72 0.46 (0.32) (0.33) (0.06) (0.16)
CAPITAL RATIOS:
Leverage capital ra-
tio................... 7.70% 8.19% 9.97% 10.53% 8.59% 8.99% 8.54%
Tier 1 capital ratio... 11.23 13.46 15.57 15.69 11.88 13.16 11.33
Total capital.......... 12.60 15.29 16.82 16.85 12.96 14.33 12.58
Total shareholders' eq-
uity to total assets.. 7.73 9.66 10.42 10.35 9.07 9.60 8.57
</TABLE>
- -------
(1) In 1996, a dividend related to 1995 earnings was declared and paid in
January 1996. An additional dividend related to 1996 earnings was declared
in December 1996 and paid in January 1997.
22
<PAGE>
PREMIER CAPITAL TRUST I
Premier Capital Trust is a statutory business trust formed under Delaware
law pursuant to (i) a trust agreement, dated as of October 21, 1997, executed
by the Company, as depositor, and the trustees of Premier Capital Trust
(together with the Property Trustee, the Trustees), and (ii) a certificate of
trust filed with the Secretary of State of the State of Delaware on October
21, 1997. The initial trust agreement will be amended and restated in its
entirety substantially in the form filed as an exhibit to the Registration
Statement of which this Prospectus forms a part and as so amended and restated
is referred to herein as the Trust Agreement. The Trust Agreement will be
qualified as an indenture under the Trust Indenture Act. Upon issuance of the
Preferred Securities, the purchasers thereof will own all of the Preferred
Securities. The Company will acquire all of the Common Securities which will
represent an aggregate liquidation amount equal to at least 3% of the total
capital of Premier Capital Trust. The Common Securities will rank pari passu,
and payments will be made thereon pro rata, with the Preferred Securities,
except that upon the occurrence and during the continuance of an Event of
Default (as defined herein) under the Trust Agreement resulting from a
Debenture Event of Default, the rights of the Company as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Preferred Securities. See "Description of the Preferred
Securities--Subordination of Common Securities." Premier Capital Trust exists
for the exclusive purposes of (i) issuing the Trust Securities representing
undivided beneficial interests in the assets of Premier Capital Trust, (ii)
investing the gross proceeds of the Trust Securities in the Subordinated
Debentures issued by the Company, and (iii) engaging in only those other
activities necessary, advisable, or incidental thereto. The Subordinated
Debentures will be the only assets of Premier Capital Trust and payments under
the Subordinated Debentures will be the only revenue of Premier Capital Trust.
Premier Capital Trust has a term of 31 years, but may terminate earlier as
provided in the Trust Agreement. The principal executive office of Premier
Capital Trust is 2180 Atlanta Plaza, 950 East Paces Ferry Road, Atlanta,
Georgia 30326 and its telephone number is (404) 814-3090.
The number of the Trustees will, pursuant to the Trust Agreement, initially
be four. Two of the trustees (the "Administrative Trustees") will be Darrell
D. Pittard, Chairman and Chief Executive Officer, and Robert C. Oliver,
President and Chief Operating Officer, of the Company. The third trustee, the
Property Trustee, will be a financial institution that is unaffiliated with
the Company, which trustee will serve as institutional trustee under the Trust
Agreement and as indenture trustee for the purposes of compliance with the
provisions of the Trust Indenture Act. State Street, a state chartered trust
company organized under the laws of Massachusetts will be the Property Trustee
until removed or replaced by the holder of the Common Securities. For purposes
of compliance with the provisions of the Trust Indenture Act, State Street
will also act as trustee under the Guarantee (the "Guarantee Trustee") and as
Debenture Trustee (as defined herein) under the Indenture. The fourth trustee
will be an entity that maintains its principal place of business in the State
of Delaware (the "Delaware Trustee"). Wilmington Trust Company, a Delaware
chartered trust company, will act as Delaware Trustee.
The Property Trustee will hold title to the Subordinated Debentures for the
benefit of the holders of the Trust Securities and in such capacity will have
the power to exercise all rights, powers and privileges under the Indenture.
The Property Trustee will also maintain exclusive control of a segregated non-
interest-bearing bank account (the "Property Account") to hold all payments
made in respect of the Subordinated Debentures for the benefit of the holders
of the Trust Securities. The Property Trustee will make payments of
Distributions and payments on liquidation, redemption and otherwise to the
holders of the Trust Securities out of funds from the Property Account. The
Guarantee Trustee will hold the Guarantee for the benefit of the holders of
the Preferred Securities. The Company, as the holder of all the Common
Securities, will have the right to appoint, remove or replace any Trustee and
to increase or decrease the number of the Trustees. The Company will pay all
fees and expenses related to Premier Capital Trust and the offering of the
Trust Securities.
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the Trust
Agreement, the Delaware Business Trust Act (the "Trust Act") and the Trust
Indenture Act. See "Description of the Preferred Securities."
23
<PAGE>
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities and the Common Securities will be issued pursuant
to the terms of the Trust Agreement. The Trust Agreement will be qualified as
an indenture under the Trust Indenture Act. The Property Trustee, will act as
indenture trustee for the Preferred Securities under the Trust Agreement for
purposes of complying with the provisions of the Trust Indenture Act. The
terms of the Preferred Securities will include those stated in the Trust
Agreement and those made part of the Trust Agreement by the Trust Indenture
Act. The following summary of the material terms and provisions of the
Preferred Securities and the Trust Agreement does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the Trust
Agreement, the Trust Act, and the Trust Indenture Act. Wherever particular
defined terms of the Trust Agreement are referred to, but not defined herein,
such defined terms are incorporated herein by reference. The form of the Trust
Agreement has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part.
GENERAL
Pursuant to the terms of the Trust Agreement, the Trustees, on behalf of
Premier Capital Trust, will issue the Trust Securities. All of the Common
Securities will be owned by the Company. The Preferred Securities will
represent preferred undivided beneficial interests in the assets of Premier
Capital Trust and the holders thereof will be entitled to a preference in
certain circumstances with respect to Distributions and amounts payable on
redemption or liquidation over the Common Securities, as well as other
benefits as described in the Trust Agreement. The Trust Agreement does not
permit the issuance by Premier Capital Trust of any securities other than the
Trust Securities or the incurrence of any indebtedness by Premier Capital
Trust.
The Preferred Securities will be limited to $25,000,000 aggregate
Liquidation Amount outstanding (or $28,750,000 if the over-allotment option
described under the heading "Underwriting" is exercised by the Underwriters).
The Preferred Securities will rank pari passu, and payments will be made
thereon pro rata, with the Common Securities, except as described under "--
Subordination of Common Securities." Legal title to the Subordinated
Debentures will be held by the Property Trustee in trust for the benefit of
the holders of the Trust Securities. The Guarantee executed by the Company for
the benefit of the holders of the Preferred Securities will be a guarantee on
a subordinated basis with respect to the Preferred Securities, but will not
guarantee payment of Distributions or amounts payable on redemption or
liquidation of such Preferred Securities when Premier Capital Trust does not
have funds on hand available to make such payments. The Guarantee Trustee will
hold the Guarantee for the benefit of the Holders of the Preferred Securities.
See "Description of the Guarantee."
If the Company does not make interest payments on the Subordinated
Debentures, the Property Trustee will not have funds available to pay
Distributions on the Preferred Securities. The payment of Distributions (if
and to the extent Premier Capital Trust has funds legally available for the
payment of such Distributions and cash sufficient to make such payments) is
guaranteed by the Company. See "Description of the Guarantee."
DISTRIBUTIONS
Payment of Distributions. Distributions on each Preferred Security will be
payable at the annual rate of % of the stated Liquidation Amount of $25.00,
payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year, to the holders of the Preferred Securities on the relevant
record dates (each date on which Distributions are payable in accordance with
the foregoing, a "Distribution Date"). The record date will be the 15th day of
the month in which the relevant Distribution Date occurs. Distributions will
accumulate from the date of original issuance. The first Distribution Date for
the Preferred Securities will be December 31, 1997. The amount of
Distributions payable for any period will be computed on the basis of a 360-
day year of twelve 30-day months. Except as provided in the following
sentence, the amount of interest payable for any period shorter than a full
quarterly period for which interest is computed, will be computed on the basis
of the actual number of days elapsed in such period. In the event that any
date on which Distributions are payable on the Preferred Securities is not a
Business Day, then payment of the Distributions payable on such date will be
made on the next succeeding day that is a Business Day (and without any
additional Distributions, interest or
24
<PAGE>
other payment in respect of any such delay), in each case with the same force
and effect as if made on the date such payment was originally due and payable.
"Business Day" means any day other than a Saturday or Sunday, or a day on
which banking institutions in the City of Atlanta, Georgia are authorized or
required by law or executive order to remain closed or a day on which the
corporate trust office of the Property Trustee or the Debenture Trustee is
closed for business.
Extended Interest Payment Period. The Company has the right under the
Indenture, so long as no Debenture Event of Default has occurred and is
continuing, to an Extended Interest Payment Period which, if exercised, would
defer quarterly Distributions on the Preferred Securities during any such
Extended Interest Payment Period. Distributions to which holders of the
Preferred Securities are entitled will accumulate additional Distributions
thereon at the rate per annum of % thereof, compounded quarterly from the
relevant Distribution Date. "Distributions," as used herein, includes any such
additional Distributions. The right to defer the payment of interest on the
Subordinated Debentures is limited, however, to a period not exceeding 20
consecutive quarters and no Extended Interest Payment Period may end on a day
other than an Interest Payment Date or extend beyond the Stated Maturity of
the Subordinated Debentures. During any such Extended Interest Payment Period,
the Company may not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock (other than the reclassification of any class
of the Company's capital stock into another class of capital stock), (ii) make
any payment of principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company that rank pari passu with or
junior in interest to the Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the Company of the debt securities
of any subsidiary of the Company if such guarantee ranks pari passu with or
junior in interest to the Subordinated Debentures (other than payments under
the Guarantee), or (iii) redeem, purchase or acquire less than all of the
Subordinated Debentures or any of the Preferred Securities. Prior to the
termination of any such Extended Interest Payment Period, the Company may
further defer the payment of interest; provided that such Extended Interest
Payment Period may not exceed 20 consecutive quarters, end on a day other than
an Interest Payment Date or extend beyond the Stated Maturity of the
Subordinated Debentures. Upon the termination of any such Extended Interest
Payment Period and the payment of all amounts then due, the Company may elect
to begin a new Extended Interest Payment Period, subject to the above
requirements. Subject to the foregoing, there is no limitation on the number
of times that the Company may elect to begin an Extended Interest Payment
Period, but the Company may prepay at any time all or any portion of the
interest accrued during an Extended Interest Payment Period.
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures.
Source of Distributions. The funds of Premier Capital Trust available for
distribution to holders of its Preferred Securities will be limited to
payments under the Subordinated Debentures in which Premier Capital Trust will
invest the proceeds from the issuance and sale of its Trust Securities. See
"Description of the Subordinated Debentures." Distributions will be paid
through the Property Trustee who will hold amounts received in respect of the
Subordinated Debentures in the Property Account for the benefit of the holders
of the Trust Securities. If the Company does not make interest payments on the
Subordinated Debentures, the Property Trustee will not have funds available to
pay Distributions on the Preferred Securities. The payment of Distributions
(if and to the extent Premier Capital Trust has funds legally available for
the payment of such Distributions and cash sufficient to make such payments)
is guaranteed by the Company. See "Description of the Guarantee."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of holders of the Preferred Securities
on the relevant record dates, which date will be the 15th day of the month in
which the relevant Distribution Date occurs. Subject to any applicable laws
and regulations and the provisions of the Trust Agreement, each such payment
will be made as described above under "--Distributions--Payment of
Distributions."
REDEMPTION OR EXCHANGE
General. The Subordinated Debentures will mature on the Stated Maturity. The
Company will have the right to redeem the Subordinated Debentures (i) on or
after December 31, 2007, in whole at any time or in part from time to time, or
(ii) at any time, in whole (but not in part), within 180 days following the
occurrence of a Capital
25
<PAGE>
Event, a Tax Event, or an Investment Company Event, in each case subject to
receipt of prior approval by the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve. A redemption
of the Subordinated Debentures would cause a mandatory redemption of a Like
Amount (as defined herein) of the Preferred Securities and Common Securities
at the Redemption Price. The Company will not have the right to purchase the
Subordinated Debentures, in whole or in part, from Premier Capital Trust until
after December 31, 2007, except if a Capital Event, a Tax Event, or an
Investment Company Event has occurred and is continuing. If a partial
redemption of the Subordinated Debentures would result in the delisting of the
Preferred Securities issued by Premier Capital Trust from the American Stock
Exchange or any national securities exchange or other organization on which
the Preferred Securities are then listed, the Company will not be permitted to
effect such partial redemption and may only redeem the Subordinated Debentures
in whole. See "Description of the Subordinated Debentures--General."
Mandatory Redemption. Upon the repayment or redemption, in whole or in part,
of any Subordinated Debentures, whether at Stated Maturity or upon earlier
redemption as provided in the Indenture, the proceeds from such repayment or
redemption will be applied by the Property Trustee to redeem a Like Amount of
the Trust Securities, upon not less than 30 nor more than 60 days' notice (the
"Redemption") equal to the aggregate Liquidation Amount of such Trust
Securities plus accumulated but unpaid Distributions thereon to the date of
redemption (the "Redemption Date"). See "Description of the Subordinated
Debentures--Redemption or Exchange." If less than all of the Subordinated
Debentures are to be repaid or redeemed on a Redemption Date, then the
proceeds from such repayment or redemption will be allocated to the redemption
of the Trust Securities pro rata.
Distribution of Subordinated Debentures. Subject to the Company's having
received prior approval of the Federal Reserve if so required under applicable
capital guidelines or policies of the Federal Reserve, the Company will have
the right at any time to dissolve, wind-up or terminate Premier Capital Trust
and, after satisfaction of the liabilities of creditors of Premier Capital
Trust as provided by applicable law, cause the Subordinated Debentures to be
distributed to the holders of Trust Securities in liquidation of Premier
Capital Trust. See "--Liquidation Distribution Upon Termination."
Capital Event, Tax Event or Investment Company Event Redemption. If a
Capital Event, a Tax Event or an Investment Company Event in respect of the
Trust Securities occurs and is continuing, the Company has the right to redeem
the Subordinated Debentures in whole (but not in part) and thereby cause a
mandatory redemption of such Trust Securities in whole (but not in part) at
the Redemption Price within 180 days following the occurrence of such Capital
Event, Tax Event or Investment Company Event. In the event a Capital Event, a
Tax Event or an Investment Company Event in respect of the Trust Securities
has occurred and the Company does not elect to redeem the Subordinated
Debentures and thereby causes a mandatory redemption of such Trust Securities
or to liquidate Premier Capital Trust and cause Subordinated Debentures to be
distributed to holders of such Trust Securities in liquidation of Premier
Capital Trust as described below under "--Liquidation Distribution Upon
Termination," such Preferred Securities will remain outstanding and Additional
Interest (as defined herein) may be payable on the Subordinated Debentures.
"Additional Interest" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by Premier Capital
Trust on the outstanding Trust Securities will not be reduced as a result of
any additional taxes, duties and other governmental charges to which Premier
Capital Trust has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Subordinated Debentures to be contemporaneously redeemed
in accordance with the Indenture, which will be used to pay the Redemption
Price of such Trust Securities, and (ii) with respect to a distribution of
Subordinated Debentures to holders of Trust Securities in connection with a
dissolution or liquidation of Premier Capital Trust, Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the holder to whom such Subordinated Debentures are distributed.
Each Subordinated Debenture distributed pursuant to clause (ii) above will
carry with it accumulated interest in an amount equal to the accumulated and
unpaid interest then due on such Subordinated Debenture.
26
<PAGE>
"Liquidation Amount" means the stated amount of $25.00 per Trust Security.
After the liquidation date fixed for any distribution of Subordinated
Debentures for Preferred Securities (i) such Preferred Securities will no
longer be deemed to be outstanding, and (ii) any certificates representing
Preferred Securities will be deemed to represent the Subordinated Debentures
having a principal amount equal to the Liquidation Amount of such Preferred
Securities, and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on the Preferred Securities until such
certificates are presented to the Administrative Trustees or their agent for
transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution and liquidation of Premier Capital
Trust were to occur. The Preferred Securities that an investor may purchase,
or the Subordinated Debentures that an investor may receive on dissolution and
liquidation of Premier Capital Trust, may, therefore, trade at a discount to
the price that the investor paid to purchase the Preferred Securities offered
hereby.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date will be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Subordinated Debentures. Redemptions of the Preferred
Securities will be made and the Redemption Price will be payable on each
Redemption Date only to the extent that Premier Capital Trust has funds on
hand available for the payment of such Redemption Price. See "--Subordination
of Common Securities."
If Premier Capital Trust gives a notice of redemption in respect of its
Preferred Securities, then the Property Trustee, to the extent funds are
available, will irrevocably deposit with the paying agent for the Preferred
Securities funds sufficient to pay the aggregate Redemption Price and will
give the paying agent for the Preferred Securities irrevocable instructions
and authority to pay the Redemption Price to the holders thereof upon
surrender of their certificates evidencing such Preferred Securities.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Preferred Securities called for redemption will be
payable to the holders of such Preferred Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption will have
been given and funds deposited as required, then upon the date of such
deposit, all rights of the holders of such Preferred Securities so called for
redemption will cease, except the right of the holders of such Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price, and such Preferred Securities will cease to be outstanding.
In the event that any date fixed for redemption of Preferred Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day which is a Business Day (and without any
additional Distribution, interest or other payment in respect of any such
delay) with the same force and effect as if made on such date except that, if
such Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day. In the event that payment of the
Redemption Price in respect of Preferred Securities called for redemption is
improperly withheld or refused and not paid either by Premier Capital Trust,
or by the Company pursuant to the Guarantee, Distributions on such Preferred
Securities will continue to accrue at the then applicable rate, from the
Redemption Date originally established by Premier Capital Trust for such
Preferred Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price. See "Description
of the Guarantee."
Subject to applicable law (including, without limitation, United States
federal securities law) and further provided, that the Company has not and is
not continuing to exercise its right to defer interest payments, the Company
or its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender in the open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Subordinated Debentures to holders of Preferred Securities
will be made to the applicable record holders thereof as they appear on the
register for the Preferred Securities on the relevant record date, which date
will be the date 15 days prior to the Redemption Date or liquidation date, as
applicable.
If less than all of the Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of such Trust Securities to be
redeemed will be allocated pro rata to the Trust Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed
27
<PAGE>
will be selected by the Property Trustee from the outstanding Preferred
Securities not previously called for redemption, by such method as the
Property Trustee deems fair and appropriate and which may provide for the
selection for redemption of portions (equal to $25.00 or an integral multiple
of $25.00 in excess thereof) of the Liquidation Amount of Preferred Securities
of a denomination larger than $25.00. The Property Trustee will promptly
notify the registrar for the Preferred Securities in writing of the Preferred
Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of the Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities will relate to the portion of the aggregate Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address. Unless the Company defaults in payment of
the Redemption Price on the Subordinated Debentures, on and after the
Redemption Date interest will cease to accrue on such Subordinated Debentures
or portions thereof (and Distributions will cease to accrue on the related
Preferred Securities or portions thereof) called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Preferred
Securities and Common Securities, as applicable, will be made pro rata based
on the Liquidation Amount of the Preferred Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default has occurred and is continuing, no payment of any
Distribution on, or Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition
of such Common Securities, will be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all of the outstanding Preferred Securities then called for
redemption, will have been made or provided for, and all funds available to
the Property Trustee will first be applied to the payment in full in cash of
all Distributions on, or Redemption Price of, the Preferred Securities then
due and payable.
In the case of any Event of Default resulting from a Debenture Event of
Default, the Company as holder of the Common Securities will be deemed to have
waived any right to act with respect to any such Event of Default under the
Trust Agreement until the effect of all such Events of Default with respect to
the Preferred Securities has been cured, waived or otherwise eliminated. Until
any such Events of Default under the Trust Agreement with respect to the
Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will act solely on behalf of the holders of the Preferred
Securities and not on behalf of the Company, as holder of the Common
Securities, and only the holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
The Company will have the right at any time to dissolve, wind-up or
terminate Premier Capital Trust and cause the Subordinated Debentures to be
distributed to the holders of the Preferred Securities. Such right is subject,
however, to the Company's having received prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies of
the Federal Reserve.
The Federal Reserve's risk-based capital guidelines currently provide that
redemptions of permanent equity or other capital instruments before stated
maturity could have a significant impact on a bank holding company's overall
capital structure and that any organization considering such a redemption
should consult with the Federal Reserve before redeeming any equity or capital
instrument prior to maturity if such redemption could have a material effect
on the level or composition of the organization's capital base (unless the
equity or capital instrument were redeemed with the proceeds of, or replaced
by, a like amount of a similar or higher quality capital instrument and the
Federal Reserve considers the organization's capital position to be fully
adequate after the redemption).
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In the event the Company, while a holder of Common Securities, dissolves
Premier Capital Trust prior to the Stated Maturity of the Subordinated
Debentures and the dissolution of the Premier Capital Trust is deemed to
constitute the redemption of capital instruments by the Federal Reserve under
its risk-based capital guidelines or policies, the dissolution of the Premier
Capital Trust by the Company may be subject to the prior approval of the
Federal Reserve. Moreover, any changes in applicable law or changes in the
Federal Reserve's risk-based capital guidelines or policies could impose a
requirement on the Company that it obtain the prior approval of the Federal
Reserve to dissolve Premier Capital Trust.
Pursuant to the Trust Agreement, Premier Capital Trust will automatically
terminate upon expiration of its term and will terminate earlier on the first
to occur of (i) certain events of bankruptcy, dissolution or liquidation of
the Company, (ii) the distribution of a Like Amount of the Subordinated
Debentures to the holders of its Trust Securities, if the Company, as
depositor, has given written direction to the Property Trustee to terminate
Premier Capital Trust (which direction is optional and wholly within the
discretion of the Company, as depositor), (iii) redemption of all of the
Preferred Securities as described under "Description of the Preferred
Securities--Redemption or Exchange--Mandatory Redemption," or (iv) the entry
of an order for the dissolution of Premier Capital Trust by a court of
competent jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv) of
the preceding paragraph, Premier Capital Trust will be liquidated by the
Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of Premier
Capital Trust as provided by applicable law, to the holders of such Trust
Securities a Like Amount of the Subordinated Debentures, unless such
distribution is determined by the Property Trustee not to be practical, in
which event such holders will be entitled to receive out of the assets of
Premier Capital Trust available for distribution to holders, after
satisfaction of liabilities to creditors of Premier Capital Trust as provided
by applicable law, an amount equal to, in the case of holders of Preferred
Securities, the aggregate of the Liquidation Amount plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid only
in part because Premier Capital Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by Premier Capital Trust on the Preferred Securities will be paid on
a pro rata basis. The Company, as the holder of the Common Securities, will be
entitled to receive distributions upon any such liquidation pro rata with the
holders of the Preferred Securities, except that, if a Debenture Event of
Default has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities. See "--Subordination of Common
Securities."
Under current United States federal income tax law and interpretations and
assuming, as expected, that Premier Capital Trust is treated as a grantor
trust, a distribution of the Subordinated Debentures should not be a taxable
event to holders of the Preferred Securities. Should there be a change in law,
a change in legal interpretation, a Tax Event or other circumstances, however,
the distribution could be a taxable event to holders of the Preferred
Securities. See "Material Federal Income Tax Consequences--Receipt of
Subordinated Debentures or Cash Upon Liquidation of Premier Capital Trust." If
the Company elects neither to redeem the Subordinated Debentures prior to
maturity nor to liquidate Premier Capital Trust and distribute the
Subordinated Debentures to holders of the Preferred Securities, the Preferred
Securities will remain outstanding until the repayment of the Subordinated
Debentures.
If the Company elects to liquidate Premier Capital Trust and thereby causes
the Subordinated Debentures to be distributed to holders of the Preferred
Securities in liquidation of Premier Capital Trust, the Company will continue
to have the right to shorten or extend the maturity of such Subordinated
Debentures, subject to certain conditions. See "Description of the
Subordinated Debentures--General."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution and liquidation of Premier Capital
Trust were to occur. Accordingly, the Preferred Securities that an investor
may purchase, or the Subordinated Debentures that the investor may receive on
dissolution and liquidation of Premier Capital Trust, may trade at a discount
to the price that the investor paid to purchase the Preferred Securities
offered hereby.
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LIQUIDATION VALUE
The amount of the Liquidation Distribution payable on the Preferred
Securities in the event of any liquidation of Premier Capital Trust is $25.00
per Preferred Security plus accrued and unpaid Distributions thereon to the
date of payment, which may be in the form of a distribution of such amount in
Subordinated Debentures, subject to certain exceptions. See "--Liquidation
Distribution Upon Termination."
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an event of default under the
Trust Agreement (an "Event of Default") with respect to the Preferred
Securities (whatever the reason for such Event of Default and whether
voluntary or involuntary or 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):
(i) the occurrence of a Debenture Event of Default (see "Description of the
Subordinated Debentures--Debenture Events of Default"); or
(ii) default by Premier Capital Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for
a period of 30 days; or
(iii) default by Premier Capital Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in the Trust Agreement (other
than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clauses (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the
Trustee(s) by the holders of at least 25% in aggregate Liquidation
Amount of the outstanding Preferred Securities, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" under the Trust
Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to
appoint a successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee will transmit
notice of such Event of Default to the holders of the Preferred Securities,
the Administrative Trustees and the Company, as depositor, unless such Event
of Default has been cured or waived. The Company, as depositor, and the
Administrative Trustees are required to file annually with the Property
Trustee a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities will have a preference over the Common Securities upon
termination of Premier Capital Trust. See "--Liquidation Distribution Upon
Termination." The existence of an Event of Default does not entitle the
holders of Preferred Securities to accelerate the maturity thereof.
REMOVAL OF PREMIER CAPITAL TRUST TRUSTEES
Unless a Debenture Event of Default has occurred and is continuing, any
Trustee may be removed at any time by the holder of the Common Securities. If
a Debenture Event of Default has occurred and is continuing, the Property
Trustee and the Delaware Trustee may be removed at such time by the holders of
a majority in Liquidation Amount of the outstanding Preferred Securities. In
no event, however, will the holders of the Preferred Securities have the right
to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in the Company as the holder of the
Common Securities. No resignation or removal of a Trustee and no appointment
of a successor trustee will be effective until the acceptance of appointment
by the successor trustee in accordance with the provisions of the Trust
Agreement.
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CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default has occurred and is continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property
(as defined in the Trust Agreement) may at the time be located, the Company,
as the holder of the Common Securities, will have the power to appoint one or
more Persons (as defined in the Trust Agreement) either to act as a co-
trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to act as separate trustee of any such Trust Property, in either
case with such powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons in such capacity any property, title, right
or power deemed necessary or desirable, subject to the provisions of the Trust
Agreement. In case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone will have the power to make such
appointment.
MERGER OR CONSOLIDATION OF TRUSTEES
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural Person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee is a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Trustee, will be the successor of such Trustee under the Trust Agreement,
provided such Person is otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF PREMIER CAPITAL
TRUST
Premier Capital Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except as
described below. Premier Capital Trust may, at the request of the Company,
with the consent of the Administrative Trustees and without the consent of the
holders of the Preferred Securities, the Property Trustee or the Delaware
Trustee, merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of Premier Capital Trust with respect to the Preferred Securities,
or (b) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Preferred Securities in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee in its capacity as the holder of the
Subordinated Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any (including, if applicable, the American
Stock Exchange), (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect, (v) prior to
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Company has received an opinion from independent counsel to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither Premier Capital Trust nor such successor entity
will be required to register as an "investment company" under the Investment
Company Act, and (vi) the Company owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, Premier Capital Trust will not, except with the
consent of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to
any other Person or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause Premier Capital Trust
or the successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.
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VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided below and under "Description of the Guarantee--Amendments
and Assignment" and as otherwise required by the Trust Act and the Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
If any Distributions payable on the Preferred Securities are in arrears for
six quarterly periods, the holders of the Preferred Securities, voting
separately as a class with any other preferred securities having similar
voting rights, will be entitled at the next regular or special meeting of the
shareholders of the Company to elect two directors to the Board of Directors
of the Company (such voting rights will continue until such time as the
Distribution arrearage on the Preferred Securities have been paid in full).
The affirmative consent of the holders of at least 66 2/3% of the outstanding
Preferred Securities will be required by Premier Capital Trust for amendments
to the Trust Agreement that would affect adversely the rights or privileges of
the holders of the Preferred Securities.
The Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Preferred Securities (i) with respect to acceptance of
appointment by a successor trustee, (ii) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent
with any other provision, or to make any other provisions with respect to
matters or questions arising under the Trust Agreement (provided such
amendment is not inconsistent with the other provisions of the Trust
Agreement), or (iii) to modify, eliminate or add to any provisions of the
Trust Agreement to such extent as is necessary to ensure that Premier Capital
Trust will be classified for United States federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that Premier Capital Trust will not be required to register as an
"investment company" under the Investment Company Act; provided, however, that
in the case of clause (ii), such action may not adversely affect in any
material respect the interests of any holder of Trust Securities, and any
amendments of such Trust Agreement will become effective when notice thereof
is given to the holders of Trust Securities. The Trust Agreement may be
amended by the Trustees and the Company with (i) the consent of holders
representing not less than a majority in the aggregate Liquidation Amount of
the outstanding Trust Securities, and (ii) receipt by the Trustees of an
opinion of counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment will not
affect Premier Capital Trust's status as a grantor trust for United States
federal income tax purposes or Premier Capital Trust's exemption from status
as an "investment company" under the Investment Company Act. Notwithstanding
anything in this paragraph to the contrary, without the consent of each holder
of Trust Securities, the Trust Agreement may not be amended to (a) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date, or (b) restrict the right of a
holder of Trust Securities to institute suit for the enforcement of any such
payment on or after such date.
The Trustees will not, so long as any Subordinated Debentures are held by
the Property Trustee, (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Property Trustee with respect to the
Subordinated Debentures, (ii) waive any past default that is waivable under
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Subordinated Debentures will be due and payable, or
(iv) consent to any amendment, modification or termination of the Indenture or
the Subordinated Debentures, where such consent is required, without, in each
case, obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Preferred Securities; provided, however,
that where a consent under the Indenture requires the consent of each holder
of Subordinated Debentures affected thereby, no such consent will be given by
the Property Trustee without the prior consent of each holder of the Preferred
Securities. The Trustees may not revoke any action previously authorized or
approved by a vote of the holders of the Preferred Securities except by
subsequent vote of the holders of the Preferred Securities. The Property
Trustee will notify each holder of Preferred Securities of any notice of
default with respect to the Subordinated Debentures. In addition to obtaining
the foregoing approvals of the holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Trustees must obtain an opinion of
counsel experienced in such matters to the effect that Premier Capital Trust
will not be classified as an association taxable as a corporation for United
States federal income tax purposes on account of such action.
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Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be
taken, to be given to each holder of record of Preferred Securities in the
manner set forth in the Trust Agreement.
No vote or consent of the holders of Preferred Securities will be required
for Premier Capital Trust to redeem and cancel its Preferred Securities in
accordance with the Trust Agreement.
Notwithstanding the fact that holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Company, the Trustees or any
affiliate of the Company or any Trustee, will, for purposes of such vote or
consent, be treated as if they were not outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The Preferred Securities to be issued in the offering may be transferred or
exchanged in the manner and at the offices described below.
The Preferred Securities to be issued in the offering initially will be
represented by one or more Preferred Securities in registered, global form
(collectively, the "Global Preferred Securities"). The Global Preferred
Securities will be deposited upon issuance with the Property Trustee as
custodian for The Depository Trust Company ("DTC"), in Boston, Massachusetts,
and registered in the name of DTC or its nominee, in each case for credit to
an account of a direct or indirect participant in DTC, as described below.
Except as set forth below, the Global Preferred Securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Preferred
Securities may not be exchanged for certificated Preferred Securities except
in the limited circumstances described under "--Exchange of Book-Entry
Preferred Securities for Certificated Preferred Securities" below. In
addition, transfer of beneficial interests in the Global Preferred Securities
will be subject to the applicable rules and procedures of DTC and its direct
or indirect participants, which may change from time to time.
Depository Procedures. DTC has advised Premier Capital Trust and the Company
that DTC is a limited-purpose trust company created to hold securities for its
participating organizations (collectively, the "Participants") and to
facilitate the clearance and settlement of transactions in those securities
between Participants through electronic book-entry changes in accounts of its
Participants. The Participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. Access
to DTC's system is also available to other entities such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "Indirect Participants"). Persons who are not Participants may
beneficially own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interest and transfer
of ownership interest of each actual purchaser of each security held by or on
behalf of DTC are recorded on the records of the Participants and Indirect
Participants.
DTC has also advised Premier Capital Trust and the Company that, pursuant to
procedures established by it, (i) upon deposit of the Global Preferred
Securities, DTC will credit the accounts of Participants on behalf of
purchasers of the Preferred Securities with portions of the Liquidation Amount
of the Global Preferred Securities and (ii) ownership of such interests in the
Global Preferred Securities will be shown on, and the transfer of ownership
thereof will be effected only through, records maintained by DTC (with respect
to the Participants) or by the Participants and the Indirect Participants
(with respect to other owners of beneficial interests in the Global Preferred
Securities).
Investors in the Global Preferred Securities may hold their interests
therein directly through DTC if they are Participants in such system, or
indirectly through organizations which are Participants in such system. All
interests in a Global Preferred Security may be subject to the procedures and
requirements of DTC. The laws of some states require that certain persons take
physical delivery in certificated form of securities that they own.
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Consequently, the ability to transfer beneficial interests in a Global
Preferred Security to such persons will be limited to that extent. Because DTC
can act only on behalf of Participants, which in turn act on behalf of
Indirect Participants and certain banks, the ability of a person having
beneficial interests in a Global Preferred Security to pledge such interest to
persons or entities that do not participate in the DTC system, or otherwise
take actions in respect of such interests, may be affected by the lack of a
physical certificate evidencing such interests. For certain other restrictions
on the transferability of the Preferred Securities, see "--Exchange of Book-
Entry Preferred Securities for Certificated Preferred Securities."
Except as described below, owners of interests in the Global Preferred
Securities will not have Preferred Securities registered in their name, will
not receive physical delivery of certificated Preferred Securities and will
not be considered the registered owners or holders thereof under the Trust
Agreement for any purpose.
Payments in respect of the Global Preferred Security registered in the name
of DTC or its nominee will be payable by the Property Trustee to DTC in its
capacity as the registered holder under the Trust Agreement. Under the terms
of the Trust Agreement, the Property Trustee will treat the persons in whose
names the Preferred Securities, including the Global Preferred Securities, are
registered as the owners thereof for the purpose of receiving such payments
and for any and all other purposes whatsoever. Consequently, neither the
Property Trustee nor any agent thereof has or will have any responsibility or
liability for (i) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
ownership interests in the Global Preferred Securities, or for maintaining,
supervising or reviewing any of DTC's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in the
Global Preferred Securities or (ii) any other matter relating to the actions
and practices of DTC or any of its Participants or Indirect Participants, DTC
has advised Premier Capital Trust and the Company that its current practice,
upon receipt of any payment in respect of securities such as Preferred
Securities, is to credit the accounts of the relevant Participants with the
payment on the payment date, in amounts proportionate to their respective
holdings in Liquidation Amount of beneficial interests in the relevant
security as shown on the records of DTC unless DTC has reason to believe it
will not receive payment on such payment date. Payments by the Participants
and the Indirect Participants to the beneficial owners of Preferred Securities
will be governed by standing instructions and customary practices and will be
the responsibility of the Participants or the Indirect Participants and will
not be the responsibility of DTC, the Property Trustee, Premier Capital Trust
or the Company. Neither Premier Capital Trust nor the Company nor the Property
Trustee will be liable for any delay by DTC or any of its Participants in
identifying the beneficial owners of the Preferred Securities, and Premier
Capital Trust or the Company and the Property Trustee may conclusively rely on
and will be protected in relying on instructions from DTC or its nominee for
all purposes.
DTC has advised Premier Capital Trust and the Company that it will take any
action permitted to be taken by a holder of Preferred Securities only at the
direction of one or more Participants to whose account with DTC interests in
the Global Preferred Securities are credited and only in respect of such
portion of the Liquidation Amount of the Preferred Securities as to which such
Participant or Participants has or have given such direction. However, if
there is an Event of Default under the Trust Agreement, DTC reserves the right
to exchange the Global Preferred Securities for certificated Preferred
Securities and to distribute such Preferred Securities to its Participants.
The information in this section concerning DTC and book-entry systems has
been obtained from sources that Premier Capital Trust and the Company believe
to be reliable, but neither Premier Capital Trust nor the Company takes
responsibility for the accuracy thereof.
Exchange of Book-Entry Preferred Securities for Certificated Preferred
Securities. A Global Preferred Security is exchangeable for certificated
Preferred Securities if (i) DTC (x) notifies the Company that it is unwilling
or unable to continue as depository for the Global Preferred Security and the
Company thereupon fails to appoint a successor depository within 90 days or
(y) has ceased to be a clearing agency registered under the Exchange Act and
the Company thereupon fails to appoint a successor depository within 90 days,
(ii) the Company in its sole discretion elects to cause the issuance of the
Preferred Securities in certificated form or (iii) there shall have occurred
and be continuing an Event of Default or any event which after notice or lapse
of time or both would be an Event of Default under the Trust Agreement. In
addition, beneficial interests in a Global
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Preferred Security may be exchanged for certificated Preferred Securities upon
request but only upon at least 20 days' prior written notice given to the
Property Trustee by or on behalf of DTC in accordance with customary
procedures. In all cases, certificated Preferred Securities delivered in
exchange for any Global Preferred Security or beneficial interests therein
will be registered in the names, and issued in any approved denominations,
requested by or on behalf of DTC (in accordance with its customary
procedures).
PAYMENT AND PAYING AGENTS
Payments in respect of the Preferred Securities held in global form shall be
made to DTC, which shall credit the relevant accounts at DTC on the applicable
Distribution Dates or, in respect of the Preferred Securities that are not
held by DTC, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the register. The
paying agent for the Preferred Securities will initially be the Property
Trustee and any co-paying agent chosen by the Property Trustee and acceptable
to the Administrative Trustees and the Company. The paying agent for the
Preferred Securities may resign as paying agent upon 30 days' written notice
to the Property Trustee and the Company. In the event that the Property
Trustee no longer is the paying agent for the Preferred Securities, the
Administrative Trustees will appoint a successor (which must be a bank or
trust company acceptable to the Administrative Trustees and the Company) to
act as paying agent.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as the registrar and the transfer agent for
the Preferred Securities. Registration of transfers of Preferred Securities
will be effected without charge by or on behalf of Premier Capital Trust, but
upon payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. Premier Capital Trust will not be
required to register or cause to be registered the transfer of Preferred
Securities after such Preferred Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than upon the occurrence and during the
continuance of an Event of Default, undertakes to perform only such duties as
are specifically set forth in the Trust Agreement and, after such Event of
Default, must exercise the same degree of care and skill as a prudent Person
would exercise or use in the conduct of his or her own affairs. Subject to the
Trust Agreement, and if the matter is not one on which holders of Preferred
Securities are entitled under the Trust Agreement to vote, then the Property
Trustee will take such action as is directed by the Company and if not so
directed, will take such action as it deems advisable and in the best
interests of the holders of the Trust Securities and will have no liability
except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate Premier Capital Trust in such a way that Premier
Capital Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act or classified as an association
taxable as a corporation for United States federal income tax purposes and so
that the Subordinated Debentures will be treated as indebtedness of the
Company for United States federal income tax purposes. The Company and the
Administrative Trustees are authorized, in this connection, to take any
action, not inconsistent with applicable law, the certificate of trust of
Premier Capital Trust (the "Certificate of Trust") or the Trust Agreement,
that the Company and the Administrative Trustees determine in their discretion
to be necessary or desirable for such purposes, so long as such action does
not materially adversely affect the interests of the holders of the related
Preferred Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
The Trust Agreement and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
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DESCRIPTION OF THE SUBORDINATED DEBENTURES
Concurrently with the issuance of the Preferred Securities, Premier Capital
Trust will invest the proceeds thereof, together with the consideration paid
by the Company for the Common Securities, in the Subordinated Debentures
issued by the Company. The Subordinated Debentures will be issued as unsecured
debt under the Indenture, to be dated as of , 1997, between the
Company and State Street, the Debenture Trustee (the "Indenture"). The
Indenture will be qualified as an indenture under the Trust Indenture Act. The
following summary of the material terms and provisions of the Subordinated
Debentures and the Indenture does not purport to be complete and is subject
to, and is qualified in its entirety by reference to, the Indenture and to the
Trust Indenture Act. Wherever particular defined terms of the Indenture are
referred to, but not defined herein, such defined terms are incorporated
herein by reference. The form of the Indenture has been filed as an exhibit to
the Registration Statement of which this Prospectus forms a part.
GENERAL
The Subordinated Debentures will be limited in aggregate principal amount to
approximately $25,773,196 (or $29,639,175 if the over-allotment option
described under the heading "Underwriting" is exercised by the Underwriters),
such amount being the sum of the aggregate stated Liquidation Amount of the
Trust Securities. The Subordinated Debentures will bear interest at the annual
rate of % of the principal amount thereof, payable quarterly in arrears on
the Interest Payment Date beginning December 31, 1997, to the Person (as
defined in the Indenture) in whose name each Subordinated Debenture is
registered, subject to certain exceptions, at the close of business on the
Business Day next preceding such Interest Payment Date. It is anticipated
that, until the liquidation, if any, of Premier Capital Trust, the
Subordinated Debentures will be held in the name of the Property Trustee in
trust for the benefit of the holders of the Trust Securities. The amount of
interest payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. Except as provided in the following sentence,
the amount of interest payable for any period shorter than a full quarterly
period for which interest is computed, will be computed on the basis of the
actual number of days elapsed in such period. In the event that any date on
which interest is payable on the Subordinated Debentures is not a Business
Day, then payment of the interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), in each case with the same force and
effect as if made on the date such payment was originally due and payable.
Accrued interest that is not paid on the applicable Interest Payment Date will
bear additional interest on the amount thereof (to the extent permitted by
law) at the rate per annum of % thereof, compounded quarterly. The term
"interest," as used herein, includes quarterly interest payments, interest on
quarterly interest payments not paid on the applicable Interest Payment Date
and Additional Interest, as applicable. The Subordinated Debentures will
mature on December 31, 2027, the Stated Maturity.
The Subordinated Debentures will be unsecured and will rank junior and be
subordinate in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company. Because the Company is a holding
company, the right of the Company to participate in any distribution of assets
of any subsidiary, including the Banking Subsidiaries, upon any such
subsidiary's liquidation or reorganization or otherwise (and thus the ability
of holders of the Subordinated Debentures to benefit indirectly from such
distribution), is subject to the prior claim of creditors of such subsidiary,
except to the extent that the Company may itself be recognized as a creditor
of such subsidiary. At June 30, 1997, the subsidiaries of the Company had
total liabilities (excluding liabilities owed to the Company) of approximately
$531 million, including deposits in the case of the Banking Subsidiaries. The
Subordinated Debentures will, therefore, be effectively subordinated to all
existing and future liabilities of the subsidiaries, and holders of
Subordinated Debentures should look only to the assets of the Company for
payments on the Subordinated Debentures. The Indenture does not limit the
incurrence or issuance of other secured or unsecured debt of the Company,
including Senior Debt, Subordinated Debt and Additional Senior Obligations,
whether under the Indenture or any existing indenture or other indenture that
the Company may enter into in the future or otherwise. See "--Subordination."
In addition, as the Company is a non-operating holding company, almost all
of the operating assets of the Company are owned by the Company's
subsidiaries. The Company relies primarily on dividends from such subsidiaries
to meet its obligations for payment of principal and interest on its
outstanding debt obligations, if
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any, and corporate expenses. Each of the Banking Subsidiaries is subject to
certain restrictions imposed by federal law on any extensions of credit to,
and certain other transactions with, the Company and certain other affiliates,
and on investments in stock or other securities thereof. Such restrictions
prevent the Company and such other affiliates from borrowing from any of the
Banking Subsidiaries unless the loans are secured by various types of
collateral. Further, such secured loans, other transactions and investments by
each of the Banking Subsidiaries are generally limited in amount as to the
Company and as to each of such other affiliates to 10% of such Banking
Subsidiaries' capital and surplus and as to the Company and all of such other
affiliates to an aggregate of 20% of the Banking Subsidiaries' capital and
surplus. In addition, payment of dividends to the Company by any of the
Banking Subsidiaries is subject to ongoing review by banking regulators and is
subject to various statutory limitations and in certain circumstances requires
prior approval by banking regulatory authorities. Under current regulations,
at June 30, 1997, the Banking Subsidiaries could have declared total dividends
to the Company of approximately $2.6 million. Federal and state regulatory
agencies also have the authority to limit further the Banking Subsidiaries'
payment of dividends based on other factors, such as the maintenance of
adequate capital for each Banking Subsidiary, which could reduce the amount of
dividends otherwise payable.
The Indenture does not contain provisions that afford holders of the
Subordinated Debentures protection in the event of a highly leveraged
transaction or other similar transaction involving the Company that may
adversely affect such holders.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Company has the right under the Indenture at any time during the term of
the Subordinated Debentures, so long as no Debenture Event of Default has
occurred and is continuing, to defer the payment of interest at any time, or
from time to time each, an Extended Interest Payment Period. The right to
defer the payment of interest on the Subordinated Debentures is limited,
however, to a period, in each instance, not exceeding 20 consecutive quarters
and no Extended Interest Payment Period may extend beyond the Stated Maturity
of the Subordinated Debentures. At the end of each Extended Interest Payment
Period, the Company must pay all interest then accrued and unpaid (together
with interest thereon at the annual rate of %, compounded quarterly, to the
extent permitted by applicable law). During an Extended Interest Payment
Period, interest will continue to accrue and holders of Subordinated
Debentures (or the holders of Preferred Securities if such securities are then
outstanding) will be required to accrue and recognize income for United States
federal income tax purposes. See "Material Federal Income Tax Consequences--
Potential Extension of Interest Payment Period and Original Issue Discount."
During any such Extended Interest Payment Period, the Company may not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock (other than the reclassification of any class of the Company's capital
stock into another class of capital stock), (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank pari passu with or junior in interest
to the Subordinated Debentures or make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to the
Subordinated Debentures (other than payments under the Guarantee), or (iii)
redeem, purchase or acquire less than all of the Subordinated Debentures or
any of the Preferred Securities. Prior to the termination of any such Extended
Interest Payment Period, the Company may further defer the payment of
interest; provided that no Extended Interest Payment Period may exceed 20
consecutive quarters or extend beyond the Stated Maturity of the Subordinated
Debentures. Upon the termination of any such Extended Interest Payment Period
and the payment of all amounts then due on any Interest Payment Date, the
Company may elect to begin a new Extended Interest Payment Period subject to
the above requirements. No interest will be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may prepay
at any time all or any portion of the interest accrued during an Extended
Interest Payment Period. The Company has no present intention of exercising
its rights to defer payments of interest on the Subordinated Debentures. The
Company must give the Property Trustee, the Administrative Trustees and the
Debenture Trustee notice of its election of such Extended Interest Payment
Period one Business Day prior to the earlier of (i) the next succeeding date
on which
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Distributions on the Trust Securities would have been payable except for the
election to begin such Extended Interest Payment Period, or (ii) the date the
Trust is required to give notice of the record date, or the date such
Distributions are payable, to the American Stock Exchange, Inc. (or other
applicable self-regulatory organization) or to holders of the Preferred
Securities, but in any event at least one Business Day prior to such record
date. Subject to the foregoing, there is no limitation on the number of times
that the Company may elect to begin an Extended Interest Payment Period.
ADDITIONAL SUMS
If Premier Capital Trust or the Property Trustee is required to pay any
additional taxes, duties or other governmental charges as a result of the
occurrence of a Tax Event, the Company will pay as additional amounts,
referred to herein as Additional Interest, on the Subordinated Debentures such
additional amounts as may be required so that the net amounts received and
retained by Premier Capital Trust after paying any such additional taxes,
duties or other governmental charges will not be less than the amounts Premier
Capital Trust would have received had such additional taxes, duties or other
governmental charges not been imposed.
REDEMPTION OR EXCHANGE
The Company will have the right to redeem the Subordinated Debentures prior
to maturity (i) on or after December 31, 2007, in whole at any time or in part
from time to time, or (ii) at any time in whole (but not in part), for cash
within 180 days following the occurrence of a Capital Event, a Tax Event or an
Investment Company Event, in each case at a redemption price equal to the
accrued and unpaid interest in the Subordinated Debentures so redeemed to the
date fixed for redemption, plus 100% of the principal amount thereof. The
proceeds of any such redemption will be used by Premier Capital Trust to
redeem the Preferred Securities. Any such redemption prior to the Stated
Maturity will be subject to prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve. If a partial redemption of the Subordinated Debentures would result
in the delisting of the Preferred Securities issued by Premier Capital Trust
from the American Stock Exchange or any national securities exchange or other
organization on which the Preferred Securities are then listed, the Company
will not be permitted to effect such partial redemption and may only redeem
the Subordinated Debentures in whole.
The Federal Reserve's risk-based capital guidelines, which are subject to
change, currently provide that redemptions of permanent equity or other
capital instruments before stated maturity could have a significant impact on
a bank holding company's overall capital structure and that any organization
considering such a redemption should consult with the Federal Reserve before
redeeming any equity or capital instrument prior to maturity if such
redemption could have a material effect on the level or composition of the
organization's capital base (unless the equity or capital instrument were
redeemed with the proceeds of, or replaced by, a like amount of a similar or
higher quality capital instrument and the Federal Reserve considers the
organization's capital position to be fully adequate after the redemption).
The redemption of the Subordinated Debentures by the Company prior to their
Stated Maturity would constitute the redemption of capital instruments under
the Federal Reserve's current risk-based capital guidelines and may be subject
to the prior approval of the Federal Reserve. The redemption of the
Subordinated Debentures also could be subject to the additional prior approval
of the Federal Reserve under its current risk-based capital guidelines.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Subordinated Debentures
to be redeemed at its registered address. Unless the Company defaults in
payment of the Redemption Price for the Subordinated Debentures, on and after
the redemption date interest ceases to accrue on such Subordinated Debentures
or portions thereof called for redemption.
The Subordinated Debentures will not be subject to any sinking fund.
DISTRIBUTION UPON LIQUIDATION
As described under "Description of the Preferred Securities--Liquidation
Distribution Upon Termination," under certain circumstances involving the
termination of Premier Capital Trust, the Subordinated Debentures
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may be distributed to the holders of the Preferred Securities in liquidation
of Premier Capital Trust after satisfaction of liabilities to creditors of
Premier Capital Trust as provided by applicable law. Any such distribution
will be subject to receipt of prior approval by the Federal Reserve if then
required under applicable policies or guidelines of the Federal Reserve. If
the Subordinated Debentures are distributed to the holders of Preferred
Securities upon the liquidation of Premier Capital Trust, the Company will use
its best efforts to list the Subordinated Debentures on the American Stock
Exchange, or stock exchanges, if any, on which the Preferred Securities are
then listed. There can be no assurance as to the market price of any
Subordinated Debentures that may be distributed to the holders of Preferred
Securities.
RESTRICTIONS ON CERTAIN PAYMENTS
If at any time (i) there has occurred a Debenture Event of Default, (ii) the
Company is in default with respect to its obligations under the Guarantee, or
(iii) the Company has given notice of its election of an Extended Interest
Payment Period as provided in the Indenture with respect to the Subordinated
Debentures and has not rescinded such notice, or such Extended Interest
Payment Period, or any extension thereof, is continuing, the Company will not
(a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock (other than the reclassification of any class of the Company's
capital stock into another class of capital stock), (b) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
interest to the Subordinated Debentures (other than payments under the
Guarantee), or (c) redeem, purchase or acquire less than all of the
Subordinated Debentures or any of the Preferred Securities.
SUBORDINATION
The Indenture provides that the Subordinated Debentures issued thereunder
are subordinated and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company. Upon any
payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or other
proceedings, the holders of Senior Debt, Subordinated Debt and Additional
Senior Obligations of the Company will first be entitled to receive payment in
full of principal of (and premium, if any) and interest, if any, on such
Senior Debt, Subordinated Debt and Additional Senior Obligations of the
Company before the holders of Subordinated Debentures will be entitled to
receive or retain any payment in respect of the principal of or interest on
the Subordinated Debentures.
In the event of the acceleration of the maturity of any Subordinated
Debentures, the holders of all Senior Debt, Subordinated Debt and Additional
Senior Obligations of the Company outstanding at the time of such acceleration
will first be entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders of the
Subordinated Debentures will be entitled to receive or retain any payment in
respect of the principal of or interest on the Subordinated Debentures.
No payments on account of principal or interest in respect of the
Subordinated Debentures may be made if there has occurred and is continuing a
default in any payment with respect to Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company or an event of default with
respect to any Senior Debt, Subordinated Debt or Additional Senior Obligations
of the Company resulting in the acceleration of the maturity thereof.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including
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obligations incurred in connection with the acquisition of property, assets or
businesses, (iii) every reimbursement obligation of such Person with respect
to letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course
of business), (v) every capital lease obligation of such Person, and (vi)
every obligation of the type referred to in clauses (i) through (v) of another
Person and all dividends of another Person the payment of which, in either
case, such Person has guaranteed or is responsible for or liable, directly or
indirectly, as obligor or otherwise.
"Senior Debt" means, with respect to the Company, the principal of (and
premium, if any) and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not such claim for post-petition interest is allowed in
such proceeding), on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are not superior in right of payment to the
Subordinated Debentures or to other Debt which is pari passu with, or
subordinated to, the Subordinated Debentures; provided, however, that Senior
Debt will not be deemed to include (i) any Debt of the Company which when
incurred and without respect to any election under section 1111(b) of the
United States Bankruptcy Code of 1978, as amended, was without recourse to the
Company, (ii) any Debt of the Company to any of its subsidiaries, (iii) any
Debt to any employee of the Company, (iv) any Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such Debt by the holders of the Subordinated Debentures as a result of the
subordination provisions of the Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to pay amounts
over to the obligees on such trade accounts payable or accrued liabilities
arising in the ordinary course of business as a result of subordination
provisions to which such Debt is subject, and (v) any Debt which constitutes
Subordinated Debt.
"Subordinated Debt" means, with respect to the Company, the principal of
(and premium, if any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating
to the Company whether or not such claim for post-petition interest is allowed
in such proceeding), on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, which is by its terms expressly provided to
be junior and subordinate to other Debt of the Company (other than the
Subordinated Debentures).
"Additional Senior Obligations" means, with respect to the Company, all
indebtedness, whether incurred on or prior to the date of the Indenture or
thereafter incurred, for claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements; provided, however, that Additional Senior Obligations do not
include claims in respect of Senior Debt or Subordinated Debt or obligations
which, by their terms, are expressly stated to be not superior in right of
payment to the Subordinated Debentures or to rank pari passu in right of
payment with the Subordinated Debentures. For purposes of this definition,
"claim" has the meaning assigned thereto in Section 101(4) of the United
States Bankruptcy Code of 1978, as amended.
The Indenture places no limitation on the amount of additional Senior Debt,
Subordinated Debt or Additional Senior Obligations that may be incurred by the
Company. The Company expects from time to time to incur indebtedness
constituting Senior Debt, Subordinated Debt and Additional Senior Obligations.
Because the Company is a holding company, the Subordinated Debentures are
effectively subordinated to all existing and future liabilities of the
Company's subsidiaries, including obligations to depositors of the Banking
Subsidiaries. Such subsidiaries of the Company had total liabilities
(excluding liabilities owed to the Company) of approximately $531 million,
including deposits in the case of the Banking Subsidiaries.
FORM, REGISTRATION AND TRANSFER
If the Subordinated Debentures are distributed to the holders of the
Preferred Securities issued in the Offering, the Subordinated Debentures may
be represented by one or more global certificates registered in the
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name of Cede & Co. as the nominee of DTC. The depository arrangements for such
Subordinated Debentures are expected to be substantially similar to those in
effect for the Preferred Securities issued in the Offering. For a description
of DTC and the terms of the depository arrangements relating to payments,
transfers, voting rights, redemptions and other notices and other matters, see
"Description of the Preferred Securities--Form, Denomination, Book-Entry
Procedures and Transfer."
PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on the Subordinated Debentures will
be made at the office of the Debenture Trustee in Boston, Massachusetts,
except that, at the option of the Company, payment of any interest may be made
(i) by check mailed to the address of the Person entitled thereto as such
address appears in the register of holders of the Subordinated Debentures, or
(ii) by wire transfer to an account maintained by the Person entitled thereto
as specified in the register of holders of the Subordinated Debentures,
provided that proper transfer instructions have been received by the regular
record date. Payment of any interest on Subordinated Debentures will be made
to the Person in whose name such Subordinated Debenture is registered at the
close of business on the regular record date for such interest, except in the
case of defaulted interest. The Company may at any time designate additional
paying agents for the Subordinated Debentures or rescind the designation of
any paying agent for the Subordinated Debentures; however, the Company will at
all times be required to maintain a paying agent, and each place of payment
for the Subordinated Debentures. Notwithstanding the foregoing, so long as the
holder of any Subordinated Debentures is the Property Trustee, the payment of
the principal of and interest (including compounded interest and Additional
Interest, if any) on such Subordinated Debentures held by the Property Trustee
may be made at such place and to such account as may be designated by the
Property Trustee.
Any moneys deposited with the Debenture Trustee or any paying agent for the
Subordinated Debentures, or then held by the Company in trust, for the payment
of the principal of or interest on the Subordinated Debentures and remaining
unclaimed for two years after such principal or interest has become due and
payable will be repaid to the Company or (if then held in trust by the
Company) will be discharged from such trust and the holder of such
Subordinated Debenture will thereafter look, as general unsecured creditor,
only to the Company for payment thereof.
REGISTRAR AND TRANSFER AGENT
The Debenture Trustee will act as the registrar and the transfer agent for
the Subordinated Debentures. Subordinated Debentures may be presented for
registration of transfer (with the form of transfer endorsed thereon, or a
satisfactory written instrument of transfer, duly executed), at the office of
the registrar. The Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts; provided that the Company maintains a transfer agent in
Atlanta, Georgia. The Company may at any time designate additional transfer
agents with respect to the Subordinated Debentures. In the event of any
Redemption, neither the Company nor the Debenture Trustee will be required to
(i) issue, register the transfer of or exchange Subordinated Debentures during
a period beginning at the opening of business 15 days before the day of
selection for Redemption of Subordinated Debentures and ending at the close of
business on the day of mailing of the relevant notice of redemption, or (ii)
transfer or exchange any Subordinated Debentures so selected for redemption,
except, in the case of any Subordinated Debentures being redeemed in part, any
portion thereof not to be redeemed.
MODIFICATION OF INDENTURE
The Company and the Debenture Trustee may, from time to time without the
consent of the holders of the Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies and qualifying, or
maintaining the qualification of, the Indenture under the Trust Indenture Act.
The Indenture contains provisions permitting the Company and the Debenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of the outstanding Subordinated Debentures, to modify the
Indenture; provided, that no such modification may, without the consent of the
holder of each outstanding Subordinated Debenture affected by such proposed
modification, (i) extend the fixed maturity of the Subordinated Debentures, or
reduce the principal amount thereof, or reduce
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the rate or extend the time of payment of interest thereon, or (ii) reduce the
percentage of principal amount of Subordinated Debentures, the holders of
which are required to consent to any such modification of the Indenture;
provided that so long as any of the Preferred Securities remain outstanding,
no such modification may be made that requires the consent of the holders of
the Subordinated Debentures, and no termination of the Indenture may occur,
and no waiver of any Debenture Event of Default may be effective, without the
prior consent of the holders of at least a majority, and in certain cases all,
of the aggregate Liquidation Amount of the Preferred Securities.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Subordinated Debentures that has occurred and is
continuing constitutes an event of default (each, a "Debenture Event of
Default") with respect to the Subordinated Debentures:
(i) failure for 30 days to pay any interest on the Subordinated Debentures,
when due (subject to the deferral of any due date in the case of an
Extended Interest Payment Period); or
(ii) failure to pay any principal on the Subordinated Debentures when due
whether at maturity, upon redemption, by declaration or otherwise; or
(iii) failure to observe or perform in any material respect certain other
covenants contained in the Indenture for 90 days after written notice
to the Company from the Debenture Trustee or the holders of at least
25% in aggregate outstanding principal amount of the Subordinated
Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
As described in "Description of the Preferred Securities--Events of Default;
Notice," the occurrence of a Debenture Event of Default will also constitute
an Event of Default in respect of the Trust Securities.
The holders of a majority in aggregate outstanding principal amount of the
Subordinated Debentures have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee.
The Debenture Trustee, or the holders of not less than 25% in aggregate
outstanding principal amount of the Subordinated Debentures, may declare the
principal due and payable immediately upon a Debenture Event of Default. The
holders of a majority in aggregate outstanding principal amount of the
Subordinated Debentures may annul such declaration and waive the default if
the default (other than the non-payment of the principal of the Subordinated
Debentures which has become due solely by such acceleration) has been cured
and a sum sufficient to pay all matured installments of interest and principal
due otherwise than by acceleration has been deposited with the Debenture
Trustee. Should the holders of the Subordinated Debentures fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Preferred Securities will have such right.
The Company is required to file annually with the Debenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under the Indenture.
If a Debenture Event of Default has occurred and is continuing, the Property
Trustee will have the right to declare the principal of and the interest on
such Subordinated Debentures, and any other amounts payable under the
Indenture, to be forthwith due and payable and to enforce its other rights as
a creditor with respect to such Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF THE PREFERRED SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest on or
principal of the Subordinated Debentures on the payment date on which such
payment is due and payable, then a holder of Preferred Securities may
institute a Direct Action against the Company for enforcement of payment to
such holder of the principal of or interest on such Subordinated Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such holder. In connection with such Direct Action,
the Company will have a right of set-off under the Indenture to the extent of
any payment made by the Company to such holder of Preferred Securities in the
Direct Action. The Company may not amend the Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent of the
holders of all of the Preferred Securities. If the right to bring a Direct
Action is
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removed, Premier Capital Trust may become subject to the reporting obligations
under the Exchange Act. The Company has the right under the Indenture to set
off any payment made to such holder of Preferred Securities by the Company in
connection with a Direct Action.
The holders of the Preferred Securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the Subordinated Debentures except under the
circumstances described in the preceding paragraph. See "Description of the
Preferred Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Company may not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to
any Person, and no Person may consolidate with or merge into the Company or
sell, convey, transfer or otherwise dispose of its properties and assets
substantially as an entirety to the Company, unless (i) in the event the
Company consolidates with or merges into another Person or conveys or
transfers its properties and assets substantially as an entirety to any
Person, the successor Person is organized under the laws of the United States
or any state or the District of Columbia, and such successor Person expressly
assumes by supplemental indenture the Company's obligations on the
Subordinated Debentures issued under the Indenture, and (ii) immediately after
giving effect thereto, no Debenture Event of Default, and no event which,
after notice or lapse of time, or both, would become a Debenture Event of
Default, has occurred and is continuing, and (iii) certain other conditions as
prescribed in the Indenture are met.
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect (except as to the Company's
obligations to pay certain sums due pursuant to the Indenture and to provide
certain officers' certificates and opinions of counsel described therein) and
the Company will be deemed to have satisfied and discharged the Indenture
when, among other things, all Subordinated Debentures not previously delivered
to the Debenture Trustee for cancellation (i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year or
are to be called for redemption and the Company deposits or causes to be
deposited with the Debenture Trustee funds, in trust, for the purpose and in
an amount sufficient to pay and discharge the entire indebtedness on the
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation, for the principal and interest to the date of the deposit or to
the Stated Maturity or Redemption Date, as the case may be.
GOVERNING LAW
The Indenture and the Subordinated Debentures will be governed by and
construed in accordance with the laws of the State of Georgia.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee has and is subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is
under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby. The Debenture Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
State Street, the Debenture Trustee, may serve from time to time as trustee
under other indentures or trust agreements with the Company or its
subsidiaries relating to other issues of their securities. In addition, the
Company and certain of its affiliates may have other banking relationships
with State Street and its affiliates.
MISCELLANEOUS
The Company has agreed, pursuant to the Indenture, for so long as Trust
Securities remain outstanding, (i) to maintain directly or indirectly 100%
ownership of the Common Securities of Premier Capital Trust (provided
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that certain successors which are permitted pursuant to the Indenture may
succeed to the Company's ownership of the Common Securities), (ii) not to
voluntarily terminate, wind up or liquidate Premier Capital Trust, except upon
prior approval of the Federal Reserve if then so required under applicable
capital guidelines or policies of the Federal Reserve, and except (a) in
connection with a distribution of Subordinated Debentures to the holders of
the Preferred Securities in liquidation of Premier Capital Trust, or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the Trust Agreement, and (iii) to use its reasonable efforts, consistent with
the terms and provisions of the Trust Agreement, to cause Premier Capital
Trust to remain classified as a grantor trust and not as an association
taxable as a corporation for United States federal income tax purposes.
DESCRIPTION OF THE GUARANTEE
The Preferred Securities Guarantee will be executed and delivered by the
Company concurrently with the issuance of the Preferred Securities for the
benefit of the holders of the Preferred Securities. The Guarantee will be
qualified as an indenture under the Trust Indenture Act. The Guarantee Trustee
will act as indenture trustee under the Guarantee for purposes of complying
with the provisions of the Trust Indenture Act. The Guarantee Trustee, State
Street, will hold the Guarantee for the benefit of the holders of the
Preferred Securities. The following summary of the material terms and
provisions of the Guarantee does not purport to be complete and is subject to,
and qualified in its entirety by reference to, all of the provisions of the
Guarantee and the Trust Indenture Act. Wherever particular defined terms of
the Guarantee are referred to, but not defined herein, such defined terms are
incorporated herein by reference. The form of the Guarantee has been filed as
an exhibit to the Registration Statement of which this Prospectus forms a
part.
GENERAL
The Company will, pursuant to the Guarantee, irrevocably agree to pay in
full on a subordinated basis, to the extent set forth therein, the Guarantee
Payments (as defined below) to the holders of the Preferred Securities, as and
when due, regardless of any defense, right of set-off or counterclaim that
Premier Capital Trust may have or assert other than the defense of payment.
The following payments with respect to the Preferred Securities, to the extent
not paid by or on behalf of Premier Capital Trust (the "Guarantee Payments"),
will be subject to the Guarantee: (i) any accrued and unpaid Distributions
required to be paid on the Preferred Securities, to the extent that Premier
Capital Trust has funds available therefor at such time, (ii) the Redemption
Price with respect to any Preferred Securities called for redemption to the
extent that Premier Capital Trust has funds available therefor at such time,
and (iii) upon a voluntary or involuntary dissolution, winding up or
liquidation of Premier Capital Trust (other than in connection with the
distribution of Subordinated Debentures to the holders of Preferred Securities
or a redemption of all of the Preferred Securities), the lesser of (a) the
amount of the Liquidation Distribution, to the extent Premier Capital Trust
has funds available therefor at such time, and (b) the amount of assets of
Premier Capital Trust remaining available for distribution to holders of
Preferred Securities in liquidation of Premier Capital Trust. The obligation
of the Company to make a Guarantee Payment may be satisfied by direct payment
of the required amounts by the Company to the holders of the Preferred
Securities or by causing Premier Capital Trust to pay such amounts to such
holders.
The Company will, through the Guarantee, the Trust Agreement, the
Subordinated Debentures and the Indenture, taken together, fully, irrevocably
and unconditionally guarantee all of the Premier Capital Trust's obligations
under the Preferred Securities. No single document standing alone or operating
in conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the Preferred Securities. See "Relationship Among
the Preferred Securities, the Subordinated Debentures and the Guarantee."
The Guarantee will not apply to any payment of Distributions except to the
extent Premier Capital Trust has funds available therefor. If the Company does
not make interest payments on the Subordinated Debentures held by Premier
Capital Trust, Premier Capital Trust will not pay Distributions on the
Preferred Securities and will not have funds legally available therefor.
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STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company in the same
manner as the Subordinated Debentures. The Guarantee does not place a
limitation on the amount of additional Senior Debt, Subordinated Debt or
Additional Senior Obligations that may be incurred by the Company. The Company
expects from time to time to incur additional indebtedness constituting Senior
Debt, Subordinated Debt and Additional Senior Obligations.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other Person or entity). The
Guarantee will not be discharged except by payment of the Guarantee Payments
in full to the extent not paid by Premier Capital Trust or upon distribution
of the Subordinated Debentures to the holders of the Preferred Securities.
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any subsidiary, including any of
the Banking Subsidiaries, upon such subsidiaries' liquidation or
reorganization or otherwise is subject to the prior claims of creditors of
that subsidiary, except to the extent the Company may itself be recognized as
a creditor of that subsidiary. The Company's obligations under the Guarantee,
therefore, will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, and claimants should look only to
the assets of the Company for payments thereunder.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Preferred Securities (in which case no vote will
be required), the Guarantee may not be amended without the prior approval of
the holders of not less than a majority of the aggregate Liquidation Amount of
the outstanding Preferred Securities. See "Description of the Preferred
Securities--Voting Rights; Amendment of Trust Agreement." All guarantees and
agreements contained in the Guarantee will bind the successors, assigns,
receivers, trustees and representatives of the Company and will inure to the
benefit of the holders of the Preferred Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of not less than a majority in aggregate Liquidation Amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
Any registered holder of Preferred Securities may institute a legal
proceeding directly against the Company to enforce its rights under the
Guarantee without first instituting a legal proceeding against Premier Capital
Trust, the Guarantee Trustee or any other Person.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with
all the conditions and covenants applicable to it under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Company in performance of the Guarantee, undertakes to perform
only such duties as are specifically set forth in the Guarantee and, after
default with respect to the Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or
her own affairs. Subject to such provisions, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by the Guarantee at the
request of any holder of any Preferred Securities, unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
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For information concerning the relationship between State Street, the
Guarantee Trustee, and the Company, see "Description of the Subordinated
Debentures--Information Concerning the Debenture Trustee."
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon (i)
full payment of the Redemption Price of the Preferred Securities, (ii) full
payment of the amounts payable upon liquidation of Premier Capital Trust, or
(iii) distribution of the Subordinated Debentures to the holders of the
Preferred Securities. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the Preferred
Securities must restore payment of any sums paid under such Preferred
Securities or the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of Georgia.
EXPENSE AND LIABILITIES AGREEMENT
The Company will, pursuant to the Agreement as to Expenses and Liabilities
entered into by it under the Trust Agreement (the "Expense Agreement"),
irrevocably and unconditionally guarantee to each person or entity to whom
Premier Capital Trust becomes indebted or liable, the full payment of any
costs, expenses or liabilities of Premier Capital Trust, other than
obligations of Premier Capital Trust to pay to the holders of the Preferred
Securities or other similar interests in Premier Capital Trust of the amounts
due such holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be. Third party creditors of Premier
Capital Trust may proceed directly against the Company under the Expense
Agreement, regardless of whether such creditors had notice of the Expense
Agreement.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE SUBORDINATED
DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent Premier Capital Trust has funds available for the payment of
such Distributions) are irrevocably guaranteed by the Company as and to the
extent set forth under "Description of the Guarantee." The Company and Premier
Capital Trust believe that, taken together, the obligations of the Company
under the Subordinated Debentures, the Indenture, the Trust Agreement, the
Expense Agreement, and the Guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee, on a subordinated basis, of payment
of Distributions and other amounts due on the Preferred Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such a guarantee. It is only the combined
operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the obligations of Premier Capital
Trust under the Preferred Securities. If and to the extent that the Company
does not make payments on the Subordinated Debentures, Premier Capital Trust
will not pay Distributions or other amounts due on the Preferred Securities.
The Guarantee does not cover payment of Distributions when Premier Capital
Trust does not have sufficient funds to pay such Distributions. In such event,
the remedy of a holder of Preferred Securities is to institute a legal
proceeding directly against the Company for enforcement of payment of such
Distributions to such holder. The obligations of the Company under the
Guarantee are subordinate and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Preferred Securities, primarily
because (i) the aggregate principal amount of the Subordinated Debentures will
be equal to the sum of the aggregate stated Liquidation Amount of the Trust
Securities, (ii) the interest rate and interest and other payment dates on the
Subordinated Debentures will match the Distribution rate and Distribution and
other payment dates for the Preferred Securities, (iii) the Company will pay
for all and any costs, expenses and liabilities of Premier Capital Trust
(except the obligations of Premier Capital Trust to holders of the Preferred
Securities), and (iv) the Trust Agreement further provides that Premier
Capital Trust will not engage in any activity that is not consistent with the
limited purposes of Premier Capital Trust.
Notwithstanding anything to the contrary in the Indenture, the Company has
the right to set off any payment it is otherwise required to make thereunder
with and to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred Security may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee, Premier Capital
Trust or any other Person. A default or event of default under any Senior
Debt, Subordinated Debt or Additional Senior Obligations of the Company would
not constitute a default or Event of Default. In the event, however, of
payment defaults under, or acceleration of, Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company, the subordination provisions of
the Indenture provide that no payments may be made in respect of the
Subordinated Debentures until such Senior Debt, Subordinated Debt or
Additional Senior Obligations have been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on the
Subordinated Debentures would constitute an Event of Default.
LIMITED PURPOSE OF PREMIER CAPITAL TRUST
The Preferred Securities evidence a preferred undivided beneficial interest
in the assets of Premier Capital Trust. Premier Capital Trust exists for the
sole purpose of issuing the Trust Securities and investing the proceeds
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thereof in Subordinated Debentures. A principal difference between the rights
of a holder of a Preferred Security and the rights of a holder of a
Subordinated Debenture is that a holder of a Subordinated Debenture is
entitled to receive from the Company the principal amount of and interest
accrued on Subordinated Debentures held, while a holder of Preferred
Securities is entitled to receive Distributions from Premier Capital Trust (or
from the Company under the Guarantee) if and to the extent Premier Capital
Trust has funds available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
Premier Capital Trust involving the liquidation of the Subordinated
Debentures, the holders of the Preferred Securities will be entitled to
receive, out of assets held by Premier Capital Trust, the Liquidation
Distribution in cash. See "Description of the Preferred Securities--
Liquidation Distribution Upon Termination." Upon any voluntary or involuntary
liquidation or bankruptcy of the Company, the Property Trustee, as holder of
the Subordinated Debentures, would be a subordinated creditor of the Company,
subordinated in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company, but entitled to receive payment
in full of principal and interest before any shareholders of the Company
receive payments or distributions. Since the Company is the guarantor under
the Guarantee and has agreed to pay for all costs, expenses and liabilities of
Premier Capital Trust (other than the obligations of Premier Capital Trust to
the holders of its Preferred Securities), the positions of a holder of the
Preferred Securities and a holder of the Subordinated Debentures relative to
other creditors and to shareholders of the Company in the event of liquidation
or bankruptcy of the Company are expected to be substantially the same.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
GENERAL
In the opinion of Womble Carlyle Sandridge & Rice, PLLC, counsel to the
Company and Premier Capital Trust the following discussion summarizes the
material United States federal income tax considerations that may be relevant
to the purchasers of Preferred Securities. This summary is based upon current
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
regulations thereunder and current administrative rulings and court decisions,
all of which are subject to change at any time, with possible retroactive
effect. Subsequent changes may cause tax consequences to vary substantially
from the consequences described below. Furthermore, the authorities on which
the following summary is based are subject to various interpretations, and it
is therefore possible that the United States federal income tax treatment of
the purchase, ownership, and disposition of Preferred Securities may differ
from the treatment described below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Preferred
Securities. Moreover, the discussion generally focuses on holders of Preferred
Securities who (i) are individual citizens or residents of the United States,
corporations and partnerships created or organized in or under the laws of the
United States or any political subdivision thereof, an estate--the income of
which is includible in its gross income for United States federal income tax
purposes without regard to its source, or a trust if a court within the Untied
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust ("U.S. Holders"), and (ii) who acquire
Preferred Securities on their original issue at their offering price and hold
Preferred Securities as capital assets. The discussion does not address
persons who are not U.S. Holders or all the tax consequences that may be
relevant to U.S. Holders who may be subject to special tax treatment, such as,
for example, banks, thrifts, real estate investment trusts, regulated
investment companies, insurance companies, dealers in securities or
currencies, tax-exempt investors, or persons that will hold the Preferred
Securities as a position in a "straddle," as part of a "synthetic security" or
"hedge," as part of a "conversion transaction" or other integrated investment,
or as other than a capital asset. The following summary also does not address
the tax consequences to persons that have a functional currency other than the
U.S. dollar or the tax consequences to shareholders, partners or beneficiaries
of a holder of Preferred Securities. Further, it does not include any
description of any alternative minimum tax consequences or the tax laws of any
state or local government or of any foreign government that may be applicable
to the Preferred Securities.
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EACH PROSPECTIVE INVESTOR SHOULD CONSULT, AND SHOULD RELY EXCLUSIVELY ON,
SUCH INVESTOR'S OWN TAX ADVISORS IN ANALYZING THE FEDERAL, STATE, LOCAL AND
FOREIGN TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP OR DISPOSITION OF
PREFERRED SECURITIES.
CLASSIFICATION OF THE SUBORDINATED DEBENTURES
The Company intends to take the position that the Subordinated Debentures
will be classified for United States federal income tax purposes as
indebtedness of the Company under current law, and, by acceptance of a
Preferred Security, each holder covenants to treat the Subordinated Debentures
as indebtedness and the Preferred Securities as evidence of an indirect
beneficial ownership interest in the Subordinated Debentures. No assurance can
be given, however, that such position of the Company will not be challenged by
the Internal Revenue Service or, if challenged, that such a challenge will not
be successful. The remainder of this discussion assumes that the Subordinated
Debentures will be classified for United States federal income tax purposes as
indebtedness of the Company.
CLASSIFICATION OF PREMIER CAPITAL TRUST
With respect to the Preferred Securities, Womble Carlyle Sandridge & Rice,
PLLC, counsel to the Company and Premier Capital Trust, has rendered its
opinion generally to the effect that, under then current law and assuming full
compliance with the terms of the Trust Agreement and Indenture, Premier
Capital Trust will be classified for United States federal income tax purposes
as a grantor trust and not as an association taxable as a corporation.
Accordingly, for United States federal income tax purposes, each holder of
Preferred Securities generally will be treated as owning an undivided
beneficial interest in the Subordinated Debentures, and each holder will be
required to include in its gross income each item of income or gain with
respect to its allocable share of the Subordinated Debentures.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
The Company's option to extend the interest payment period on the
Subordinated Debentures may cause the indebtedness to be issued with original
issue discount ("OID"). Under recently issued Treasury regulations (the
"Regulations"), a contingency that stated interest will not be timely paid
that is "remote" will be ignored in determining whether such debt instrument
is issued with OID. As a result of the terms and conditions of the
Subordinated Debentures that prohibit certain payments with respect to the
Company's capital stock and indebtedness if the Company elects to extend
interest payment periods, the Company believes that the likelihood of its
exercising its option to defer payments is remote. Based on the foregoing, the
Company intends to take the position that the Subordinated Debentures will not
be considered to be issued with OID at the time of their original issuance. If
this position is sustained, a holder of Preferred Securities should include in
gross income such holder's allocable share of interest on the Subordinated
Debentures in accordance with its own method of tax accounting.
There can be no assurance, however, that the Internal Revenue Service will
not successfully contest the Company's position. If the Internal Revenue
Service were successful in such a contention, then all of the stated interest
payments on the Subordinated Debentures would be treated as OID. In such case,
the holders of the Preferred Securities would be required to include OID in
income on an economic accrual basis regardless of whether any interest is
actually paid or their method of tax accounting, but would not be required to
report actual payments of interest as taxable income.
If the Company's position that there is no OID initially is upheld, but the
Company exercises its option to defer any payment of interest, the
Subordinated Debentures would at the time of such exercise be treated as
issued with OID, and all stated interest thereafter payable on the
Subordinated Debentures would be treated as OID. In such event, the holders of
the Preferred Securities would be required to account for the OID as stated in
the immediately preceding paragraph. Consequently, a holder of Preferred
Securities would be required to include in gross income OID even though the
Company would not make any actual interest payments during an Extended
Interest Payment Period.
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MARKET DISCOUNT AND ACQUISITION PREMIUM
Holders of Preferred Securities other than a holder who purchased the
Preferred Securities upon original issuance may be considered to have acquired
their undivided interests in the Subordinated Debentures with "market
discount" or "acquisition premium" as such phrases are defined for United
States federal income tax purposes. Such holders are advised to consult their
tax advisors as to the income tax consequences of the acquisition, ownership
and disposition of the Preferred Securities.
RECEIPT OF SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF PREMIER CAPITAL
TRUST
Under certain circumstances, as described under "Description of the
Preferred Securities--Redemption or Exchange" and "--Liquidation Distribution
Upon Termination," the Subordinated Debentures may be distributed to holders
of Preferred Securities upon a liquidation of Premier Capital Trust. Under
current United States federal income tax law, such a distribution would be
treated as a nontaxable event to each such holder and would result in such
holder having an aggregate tax basis in the Subordinated Debentures received
in the liquidation equal to such holder's aggregate tax basis in the Preferred
Securities immediately before the distribution. A holder's holding period in
the Subordinated Debentures so received in liquidation of Premier Capital
Trust would include the period for which such holder held the Preferred
Securities.
If, however, a Tax Event were to occur based on Premier Capital Trust's
being treated as an association taxable as a corporation, the distribution
would likely constitute a taxable event to holders of the Preferred
Securities. Under certain circumstances described herein, the Subordinated
Debentures may be redeemed for cash and the proceeds of such redemption
distributed to holders in redemption of their Preferred Securities. Under
current law, such a redemption would, for United States federal income tax
purposes, constitute a taxable disposition of the redeemed Preferred
Securities, and a holder would recognize gain or loss as if the holder sold
such Preferred Securities for cash. See "Description of the Preferred
Securities--Redemption or Exchange" and "--Liquidation Distribution Upon
Termination."
DISPOSITION OF PREFERRED SECURITIES
A holder of Preferred Securities that sells Preferred Securities will
recognize gain or loss equal to the difference between its adjusted tax basis
for the Preferred Securities and the amount realized on the sale of such
Preferred Securities. Assuming that the Company's position that there is no
OID initially is upheld, and the Company does not exercise its option to defer
payment of interest on the Subordinated Debentures, a Preferred Security
holder's adjusted tax basis for the Preferred Securities generally will be its
initial purchase price. If the Subordinated Debentures are deemed to have been
issued initially with OID, or OID results due to the Company's deferral of any
interest payment, a Preferred Security holder's adjusted tax basis for the
Preferred Securities generally will be its initial purchase price, increased
by OID previously included in such holder's gross income to the date of
disposition and decreased by distributions and other payments received on the
Preferred Securities since the date the Subordinated Debentures are deemed to
have OID. Such gain or loss generally will be a capital gain or loss (except
to the extent any amount realized is treated as a payment of accrued interest
with respect to such holder's pro rata share of the Subordinated Debentures)
and will be a short-term, mid-term or long-term capital gain or loss depending
on the length of time the Preferred Securities have been held.
The Preferred Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the
underlying Subordinated Debentures. A holder that disposes of its Preferred
Securities between record dates for payments of distributions thereon will be
required to include accrued but unpaid interest on the Subordinated Debentures
through the date of disposition in income as ordinary income, and to add such
amount to its adjusted tax basis in its pro rata share of the underlying
Subordinated Debentures deemed disposed of. To the extent the selling price is
less than the holder's adjusted tax basis (which basis will include, in the
form of OID, all accrued but unpaid interest), a holder will recognize a
capital loss. Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for United States federal income tax
purposes.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Interest paid on the Subordinated Debentures, or the amount of OID on the
Subordinated Debentures, if applicable, deemed held of record by individual
citizens or residents of the United States, or certain trusts,
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estates, and partnerships, will be reported to the Internal Revenue Service
("IRS") on Forms 1099, which forms should be mailed to such holders of
Preferred Securities by January 31 following each calendar year. Payments made
on, and proceeds from the sale of, the Preferred Securities may be subject to
a "backup" withholding tax (currently at 31%) unless the holder complies with
certain identification and other requirements. Any amounts withheld under the
backup withholding rules will be allowed as a credit against the holder's U.S.
federal income tax liability provided the required information is provided to
the IRS.
THE U.S. FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR
GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON THE
PARTICULAR SITUATION OF A HOLDER OF PREFERRED SECURITIES. HOLDERS OF PREFERRED
SECURITIES SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN U.S. FEDERAL
OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
Employee benefit plans that are subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
("Plans"), generally may purchase Preferred Securities, subject to the
investing fiduciary's determination that the investment in Preferred
Securities satisfies ERISA's fiduciary standards and other requirements
applicable to investments by the Plan.
In any case, the Company and/or any of its affiliates may be considered a
"party in interest" (within the meaning of ERISA) or a "disqualified person"
(within the meaning of Section 4975 of the Code) with respect to certain plans
(generally, Plans maintained or sponsored by, or contributed to by, any such
persons with respect to which the Company or an affiliate is a fiduciary or
Plans for which the Company or an affiliate provides services). The
acquisition and ownership of Preferred Securities by a Plan (or by an
individual retirement arrangement or other Plans described in Section
4975(e)(1) of the Code) with respect to which the Company or any of its
affiliates is considered a party in interest or a disqualified person may
constitute or result in a prohibited transaction under ERISA or Section 4975
of the Code, unless such Preferred Securities are acquired pursuant to and in
accordance with an applicable exemption.
As a result, Plans with respect to which the Company or any of its
affiliates is a party in interest or a disqualified person should not acquire
Preferred Securities unless such Preferred Securities are acquired pursuant to
and in accordance with an applicable exemption such as Prohibited Transaction
Class Exemption ("PTCE") 84-14 (an exemption for certain transactions
determined by an independent qualified professional asset manager), PTCE 91-38
(an exemption for certain transactions involving bank collective investment
funds), PTCE 90-1 (an exemption for certain transactions involving insurance
company pooled separate accounts), PTCE 95-60 (an exemption for transactions
involving certain insurance company general accounts) or PTCE 96-23 (an
exemption for certain transactions determined by an in-house asset manager.
Plans or other entities whose assets include Plan assets subject to ERISA or
Section 4975 of the Code proposing to acquire Preferred Securities should
consult with their own counsel.
In addition, a Plan fiduciary considering the purchase of Preferred
Securities should be aware that the assets of Premier Capital Trust may be
considered "plan assets" for ERISA purposes. Therefore, to avoid certain
prohibited transactions under ERISA and the Code that could thereby result,
each investing Plan, by purchasing the Preferred Securities, will be deemed to
have directed Premier Capital Trust to invest in the Subordinated Debentures
and to have appointed the Property Trustee.
51
<PAGE>
UNDERWRITING
Pursuant to the Underwriting Agreement, the form of which is filed as an
exhibit to the Registration Statement of which this Prospectus forms a part,
and subject to the terms and conditions thereof, the Underwriters named below,
acting through J.C. Bradford & Co., Interstate/Johnson Lane Corporation and
Sterne Agee & Leach, Inc., as representatives of the several Underwriters (the
"Representatives"), have severally agreed to purchase from Premier Capital
Trust the number of Preferred Securities set forth below opposite their
respective names.
<TABLE>
<CAPTION>
NUMBER OF
NAME OF UNDERWRITER SHARES
- ------------------- ---------
<S> <C>
J.C. Bradford & Co....................................................
Interstate/Johnson Lane Corporation...................................
Sterne Agee & Leach, Inc..............................................
----
Total................................................................
====
</TABLE>
The several Underwriters have agreed in the Underwriting Agreement, subject
to the terms and conditions set forth therein, to purchase all the Preferred
Securities offered hereby if any of the Preferred Securities are purchased. In
the event of default by an Underwriter, the Underwriting Agreement provides
that, in certain circumstances, purchase commitments of the nondefaulting
Underwriters may be increased or the Underwriting Agreement may be terminated.
The Representatives have advised Premier Capital Trust that they propose
initially to offer the Preferred Securities to the public at the public
offering price set forth on the cover page of this Prospectus. After the
initial public offering, the public offering price may be changed.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Debentures of the
Company, the Underwriting Agreement provides that the Company will pay as
compensation to the Underwriters arranging the investment therein of such
proceeds, an amount in immediately available funds of $1.00 per Preferred
Security (or $1,000,000 in the aggregate or $1,150,000 if the Underwriters'
over-allotment option is exercised) for the accounts of the several
Underwriters.
The offering of the Preferred Securities is made for delivery when, as and
if accepted by the Underwriters and subject to prior sale and to withdrawal,
cancellation or modification of the offer without notice. The Underwriters
reserve the right to reject any order for the purchase of the shares.
Premier Capital Trust has granted the Underwriters an option to purchase up
to an additional 150,000 Preferred Securities at the initial public offering
price. Such option, which expires 30 days from the date of this Prospectus,
may be exercised solely to cover over-allotments. To the extent that the
Underwriters exercise such option, each of the Underwriters will have a firm
commitment to purchase approximately the same percentage thereof which the
number of shares of Preferred Securities to be purchased by it shown in the
table above bears to the total and Premier Capital Trust and will be obligated
pursuant to the option, to sell such shares to the Underwriters. The
Underwriters may exercise such options only to cover over-allotments made in
connection with the sale of shares of Preferred Securities offered hereby. If
purchased, the Underwriters will sell such additional shares on the same terms
as those on which the shares are being offered.
To the extent that the Underwriters exercise their option to purchase
additional Preferred Securities, Premier Capital Trust will issue and sell to
the Company additional Common Securities and the Company will issue and sell
Subordinated Debentures to Premier Capital Trust in an aggregate principal
amount equal to the total aggregate Liquidation Amount of the additional
Common Securities being purchased and the additional Preferred Securities
being purchased pursuant to the option.
During a period of 120 days from the date of this Prospectus, neither
Premier Capital Trust nor the Company will, subject to certain exceptions,
without the prior written consent of the Representatives, directly or
indirectly, sell, offer to sell, grant any option for sale of, or otherwise
dispose of, any Preferred Securities, any security
52
<PAGE>
convertible into or exchangeable into or exercisable for Preferred Securities
or Subordinated Debentures or any debt securities substantially similar to the
Subordinated Debentures or equity securities substantially similar to the
Preferred Securities (except for the Subordinated Debentures and the Preferred
Securities offered hereby).
Application has been made to have the Preferred Securities approved for
quotation on the American Stock Exchange, Inc. The offering price and
distribution rate have been determined by negotiations among representatives
of the Company and the Underwriters, and the offering price of the Preferred
Securities may not be indicative of the market price following the offering.
The Representatives will have no obligation to make a market in the Preferred
Securities, however, and may cease market-making activities, if commenced, at
any time.
Premier Capital Trust and the Company have agreed to indemnify the
Underwriters and controlling persons, if any, against certain liabilities,
including liabilities under the Securities Act, or will contribute to payments
that the Underwriters or any such controlling persons may be required to make
in respect thereof.
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Preferred
Securities, the enforceability of the Trust Agreement and the formation of
Premier Capital Trust will be passed upon by Richards, Layton & Finger P.A.,
special Delaware counsel. Certain legal matters for the Company and Premier
Capital Trust, including the validity of the Guarantee and the Subordinated
Debentures will be passed upon for the Company and Premier Capital Trust by
Womble Carlyle Sandridge & Rice, PLLC, Atlanta, Georgia, counsel to the
Company and Premier Capital Trust. Certain legal matters will be passed upon
for the Underwriters by Alston & Bird, LLP, Washington, D.C. Womble Carlyle
Sandridge & Rice, PLLC and Alston & Bird, LLP, will rely on the opinion of
Richards, Layton & Finger P.A. with regard to matters pertaining to Delaware
law. Certain matters relating to United States federal income tax
considerations will be passed upon for the Company by Womble Carlyle Sandridge
& Rice, PLLC.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
for the years ended December 31, 1994, 1995 and 1996 incorporated herein by
reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 and the consolidated financial statements of the Company and
its subsidiaries for the years ended December 31, 1994, 1995 and 1996 restated
to give effect to the combination of Central and Southern with the Company,
accounted for as a pooling of interests, incorporated herein by reference to
the Company's Current Report on Form 8-K/A dated November 4, 1997, have been
audited by Mauldin & Jenkins, LLC, independent certified public accountants,
as stated in their reports, which reports are incorporated herein by
reference, and have been so incorporated in reliance upon the authority of
said firm as experts in accounting and auditing.
53
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRE-
SENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, PREMIER CAP-
ITAL TRUST I OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR PREMIER CAPITAL
TRUST I SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS COR-
RECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT CONSTI-
TUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES IN
ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 1
Incorporation of Certain Documents by Reference............................ 2
Prospectus Summary......................................................... 4
Risk Factors............................................................... 12
The Company................................................................ 18
Accounting Treatment....................................................... 20
Use of Proceeds............................................................ 20
Ratios of Earnings to Fixed Charges........................................ 20
Capitalization............................................................. 21
Selected Consolidated Financial Data....................................... 22
Premier Capital Trust...................................................... 23
Description of the Preferred Securities.................................... 24
Description of the Subordinated Debentures................................. 36
Description of the Guarantee............................................... 44
Relationship among the Preferred Securities,
the Subordinated Debentures and the Guarantee............................. 47
Material Federal Income Tax Consequences................................... 48
ERISA Considerations....................................................... 51
Underwriting............................................................... 52
Validity of Securities..................................................... 53
Experts.................................................................... 53
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
1,000,000 PREFERRED SECURITIES
PREMIER CAPITAL TRUST I
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25.00 PER PREFERRED SECURITY) FULLY AND UNCONDITIONALLY
GUARANTEED, AS
DESCRIBED HEREIN, BY
LOGO
PREMIER BANCSHARES, INC.
---------------
PROSPECTUS
---------------
J.C.Bradford&Co.
Interstate/Johnson Lane
Corporation
SterneAgee&Leach,Inc.
, 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II--INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with this offering are as set forth in
the following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............... $ 8,712
National Association of Securities Dealers, Inc. Filing Fee....... $ 3,200
---------
American Stock Exchange, Inc. Listing Fee......................... $ 10,000
Blue Sky Qualification Fees and Expenses.......................... $ 500
Accounting Fees and Expenses...................................... $ 20,000
---------
Legal Fees and Expenses........................................... $ 75,000
---------
Trustees' Fees and Expenses....................................... $ 12,500
---------
Printing and Engraving Expenses................................... $ 65,000
---------
Transfer and Registrar Fees....................................... $ 5,000
---------
Miscellaneous..................................................... $ 15,088
---------
Total............................................................ $ 215,000
=========
</TABLE>
- --------
* To be provided by amendment. All amounts other than the Securities and
Exchange Commission registration fee, the American Stock Exchange, Inc.
listing fee and the National Association of Securities Dealers, Inc. filing
fee are estimated.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The provisions of the Georgia Business Corporation Code (the "Georgia Code")
and the Registrant's Bylaws set forth the extent to which the Registrant's
directors and officers may be indemnified against liabilities they may incur
while serving in such capacities. Under the Registrant's Bylaws, the
Registrant is required to indemnify its officers and directors against
reasonable expenses (including attorneys' fees) incurred by them in the
defense of any action, suit or proceeding to which they were made a party, or
in defense of any claim, issue or matter therein, by reason of the fact that
they are or were officers, directors, employees or agents of the Registrant,
to the extent that they have been successful, on the merits or otherwise, in
such defense. The Registrant's Bylaws also permit indemnification of its
directors and officers against any liability incurred in connection with any
threatened, pending or completed action, suit or proceeding by reason of the
fact that they are or were directors or officers of the Registrant or who,
while directors or officers of the Registrant, are or were serving at the
Registrant's request as directors, officers, partners, trustees, employees or
agents of another entity, if they acted in a manner they believed in good
faith to be in, or not opposed to, the best interests of the Registrant, or,
with respect to any criminal proceeding, had no reasonable cause to believe
their conduct was unlawful, if a determination has been made that they have
met these standards of conduct. Such indemnification in connection with a
proceeding by or in the right of the Registrant, however, is limited to
reasonable expenses, including attorneys' fees, incurred in connection with
the proceeding. The Registrant must also provide advancement of expenses
incurred by any director or officer in defending any such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such officer or
director to repay such advances unless it is ultimately determined that he or
she is not entitled to indemnification by the Registrant.
The Registrant may not indemnify a director or officer in connection with a
proceeding by or in the right of the Registrant in which the director or
officer was adjudged liable to the Registrant for appropriation of a business
opportunity or payment of unlawful dividends, in connection with a proceeding
in which he or she was adjudged liable on the basis that he or she improperly
received a personal benefit or for intentional misconduct or a knowing
violation of law.
The indemnification provisions of the Georgia Code are essentially identical
to those set forth above, except that the Georgia Code permits, but does not
require, a corporation to advance expenses under the circumstances for such
payments described above.
II-1
<PAGE>
The Registrant maintains an insurance policy insuring the Registrant and its
directors and officers against certain liabilities, including liabilities
under the Securities Act.
The Registrant's Articles of Incorporation provide that no director of the
Company shall be personally liable to the Registrant or its shareholders for
monetary damages for a breach of the duty of care or of any other duty as a
director, except in the case of: (i) wrongful appropriation of any business
opportunity of the Registrant; (ii) acts or omissions not in good faith or
involving intentional misconduct or a knowing violation or law;
(iii) liability for unlawful distributions; or (iv) any transaction from which
the director derived an improper personal benefit.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBITS
--------
<C> <S>
1.1* Form of Underwriting Agreement.
4.1* Articles of Incorporation of the Company (Incorporated by reference as
Exhibit 3.1 to the Company's Form 10-K for the fiscal year ended
December 31, 1996).
4.2* Bylaws of the Company (Incorporated by reference as Exhibit 3.2 to the
Company's Form 10-QSB for the quarter ended September 30, 1996).
4.3 Form of Indenture.
4.4 Form of Subordinated Debenture.
Certificate of Trust of Premier Capital Trust I dated as of October 21,
4.5* 1997.
4.6* Trust Agreement of Premier Capital Trust I dated as of October 21, 1997.
4.7 Form of Amended and Restated Trust Agreement of Premier Capital Trust.
Form of Common Stock Securities Certificate (included as an exhibit to
4.8 Exchibit 4.7).
4.9 Form of Global Preferred Security Certificate of Premier Capital Trust.
Form of Preferred Securities Guarantee Agreement for Premier Capital
4.10 Trust.
Form of Agreement as to Expenses and Liabilities (included as an exhibit
4.11 to Exhibit 4.7).
5.1 Opinion of Womble Carlyle Sandridge & Rice, PLLC as to the validity of
the issuance of the Subordinated Debentures.
5.2 Opinion of Richards Layton & Finger P.A., special Delaware counsel, as
to the legality of the Preferred Securities to be issued by Premier
Capital Trust.
Opinion of Womble Carlyle Sandridge & Rice, PLLC as to material federal
8.1 income tax matters.
12.1* Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Mauldin & Jenkins, LLC, Independent Auditors.
23.2 Consent of Womble Carlyle Sandridge & Rice, PLLC (to be included in
their opinions filed herewith as Exhibits 5.1 and 8.1).
23.3 Consent of Richards, Layton & Finger P.A. (to be included in their
opinion filed herewith as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page).
25.1* Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under the Indenture.
25.2* Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under Amended and Restated Trust Agreement.
25.3* Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under the Preferred Securities Guarantee Agreement.
</TABLE>
- --------
* Previously filed.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described under "Item 15--Indemnification of
Directors and Officers" above, or otherwise, the Company has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed
II-2
<PAGE>
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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.
The Company hereby undertakes that: (i) for purposes of determining any
liability under the Act, 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 Company pursuant to Rule
424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; (ii) for the
purpose of determining any liability under the Act, 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; and (iii) for the purpose of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the
requirements for filing this first amendment to Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Atlanta, Georgia, on November 6, 1997.
PREMIER BANCSHARES, INC.
/s/ Robert C. Oliver
By: _________________________________
ROBERT C. OLIVER, PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Darrell D. Pittard and Robert C. Oliver and
each of them (with full power to each of them to act alone), his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and any subsequent registration
statements pursuant to Rule 462 under the Securities Act, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the Requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ N. Michael Anderson* Director November 6, 1997
_________________________________
N. MICHAEL ANDERSON
/s/ George S. Carpenter* Director November 6, 1997
_________________________________
GEORGE S. CARPENTER
/s/ James L. Coxwell* Director November 6, 1997
_________________________________
JAMES L. COXWELL
/s/ Donald N. Ellis* Director November 6, 1997
_________________________________
DONALD N. ELLIS
/s/ William M. Evans, Jr.* Director November 6, 1997
_________________________________
WILLIAM M. EVANS, Jr.
/s/ John H. Ferguson* Director November 6, 1997
_________________________________
JOHN H. FERGUSON
/s/ James E. Freeman* Director November 6, 1997
_________________________________
JAMES E. FREEMAN
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Albert F. Gandy* Director November 6, 1997
_________________________________
ALBERT F. GANDY
/s/ Robin R. Howell* Director November 6, 1997
_________________________________
ROBIN R. HOWELL
/s/ Billy H. Martin* Director November 6, 1997
_________________________________
BILLY H. MARTIN
/s/ Steve McQuaig* Director November 6, 1997
_________________________________
STEVE MCQUAIG
/s/ Robert C. Oliver Director, President and November 6, 1997
_________________________________ Chief Operating Officer
ROBERT C. OLIVER
/s/ Thomas E. Owen, Jr.* Director November 6, 1997
_________________________________
THOMAS E. OWEN, JR.
/s/ Darrell D. Pittard* Chairman and Chief Executive November 6, 1997
_________________________________ Officer (principal
DARRELL D. PITTARD executive officer)
/s/ Michael E. Ricketson* Chief Financial Officer and November 6, 1997
_________________________________ Executive Vice President
MICHAEL E. RICKETSON (principal financial and
accounting officer)
* By: ___________________________
ROBERT C. OLIVER
AS ATTORNEY-IN-FACT
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Premier Capital Trust I
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing this first amendment to Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Atlanta, Georgia on November 6, 1997.
PREMIER CAPITAL TRUST I
/s/ Robert C. Oliver
By: _________________________________
ROBERT C. OLIVER, TRUSTEE
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
4.1* Articles of Incorporation of the Company (Incorporated by reference as
Exhibit 3.1 to the Company's Form 10-K for the fiscal year ended
December 31, 1996).
4.2* Bylaws of the Company (Incorporated by reference as Exhibit 3.2 to the
Company's Form 10-QSB for the nine months ended September 30, 1996).
4.3 Form of Indenture.
4.4 Form of Subordinated Debenture.
4.5* Certificate of Trust of Premier Capital Trust I dated as of October 21,
1997.
4.6* Trust Agreement of Premier Capital Trust I dated as of October 21, 1997.
4.7 Form of Amended and Restated Trust Agreement of Premier Capital Trust.
4.8 Form of Common Securities Certificate (included as an exhibit to Exhibit
4.7)
4.9 Form of Global Preferred Security Certificate of Premier Capital Trust.
4.10 Form of Preferred Securities Guarantee Agreement for Premier Capital
Trust.
4.11 Form of Agreement as to Expenses and Liabilities (included as an exhibit
to Exhibit 4.7).
5.1 Opinion of Womble Carlyle Sandridge & Rice, PLLC as to the validity of
the issuance of the Subordinated Debentures.
5.2 Opinion of Richards Layton & Finger P.A., special Delaware counsel, as
to the legality of the Preferred Securities to be issued by Premier
Capital Trust.
8.1 Opinion of Womble Carlyle Sandridge & Rice, PLLC as to material federal
income tax matters.
12.1* Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Mauldin & Jenkins, LLC, Independent Auditors.
23.2 Consent of Womble Carlyle Sandridge & Rice, PLLC (to be included in
their opinions filed herewith as Exhibits 5.1 and 8.1).
23.3 Consent of Richards, Layton & Finger P.A. (to be included in their
opinion filed herewith as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page).
25.1 Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under the Indenture.
25.2* Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under Amended and Restated Trust Agreement.
25.3* Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under the Preferred Securities Guarantee Agreement.
</TABLE>
- --------
* Previously filed.
II-6
<PAGE>
EXHIBIT 4.3
PREMIER BANCSHARES, INC.
AND
STATE STREET BANK AND TRUST COMPANY,
AS INDENTURE TRUSTEE
INDENTURE
___% SUBORDINATED DEBENTURES DUE DECEMBER 31, 2027
DATED AS OF NOVEMBER _____, 1997.
====================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE I.DEFINITIONS.................................................................... 2
SECTION 1.1. Definitions of Terms................................................... 2
ARTICLE II
ISSUE, DESCRIPTION, TERMS,
CONDITIONSREGISTRATION AND EXCHANGE OF THE
DEBENTURES............................................................................. 9
SECTION 2.1. Designation and Principal Amount....................................... 9
SECTION 2.2. Maturity............................................................... 9
SECTION 2.3. Form and Payment....................................................... 9
SECTION 2.4. Interest............................................................... 10
SECTION 2.5. Execution and Authentications.......................................... 11
SECTION 2.6. Registration of Transfer and Exchange.................................. 12
SECTION 2.7. Temporary Debentures................................................... 13
SECTION 2.8. Mutilated, Destroyed, Lost or Stolen Debentures........................ 13
SECTION 2.9. Cancellation........................................................... 14
SECTION 2.10. Benefit of Indenture................................................... 14
SECTION 2.11. Authentication Agent................................................... 15
ARTICLE III.REDEMPTION OF DEBENTURES..................................................... 15
SECTION 3.1. Redemption............................................................. 15
SECTION 3.2. Special Event Redemption............................................... 16
SECTION 3.3. Optional Redemption by Company......................................... 16
SECTION 3.4. Notice of Redemption................................................... 17
SECTION 3.5. Payment upon Redemption................................................ 18
SECTION 3.6. No Sinking Fund........................................................ 18
ARTICLE IV.EXTENSION OF INTEREST PAYMENT PERIOD.......................................... 18
SECTION 4.1. Extension of Interest Payment Period................................... 18
SECTION 4.2. Notice of Extension.................................................... 19
SECTION 4.3. Limitation on Transactions............................................. 20
ARTICLE V.PARTICULAR COVENANTS OF THE COMPANY............................................ 20
SECTION 5.1. Payment of Principal and Interest...................................... 20
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 5.2. Maintenance of Agency.................................................. 20
SECTION 5.3. Paying Agents.......................................................... 21
SECTION 5.4. Appointment to Fill Vacancy in Office of Trustee....................... 22
SECTION 5.5. Compliance with Consolidation Provisions............................... 22
SECTION 5.6. Limitation on Transactions............................................. 22
SECTION 5.7. Covenants as to the Trust.............................................. 23
SECTION 5.8. Covenants as to Purchases.............................................. 23
ARTICLE VI.DEBENTUREHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE............................................................ 23
SECTION 6.1. Company to Furnish Trustee Names and Addresses of
Debentureholders..................................................... 23
SECTION 6.2. Preservation of Information Communications with
Debentureholders..................................................... 24
SECTION 6.3. Reports by the Company................................................. 24
SECTION 6.4. Reports by the Trustee................................................. 25
ARTICLE VII.REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERSON EVENT OF DEFAULT.................................................... 25
SECTION 7.1. Events of Default...................................................... 25
SECTION 7.2. Collection of Indebtedness and Suits for Enforcement by Trustee........ 27
SECTION 7.3. Application of Moneys Collected........................................ 29
SECTION 7.4. Limitation on Suits.................................................... 29
SECTION 7.5. Rights and Remedies Cumulative; Delay or Omission Not Waiver........... 30
SECTION 7.6. Control by Debentureholders............................................ 30
SECTION 7.7. Undertaking to Pay Costs............................................... 31
ARTICLE VIII.FORM OF DEBENTURE AND ORIGINAL ISSUE........................................ 31
SECTION 8.1. Form of Debenture...................................................... 31
SECTION 8.2. Original Issue of Debentures........................................... 32
ARTICLE IX.CONCERNING THE TRUSTEE........................................................ 32
SECTION 9.1. Certain Duties and Responsibilities of the Trustee..................... 32
SECTION 9.2. Notice of Defaults..................................................... 33
SECTION 9.3. Certain Rights of Trustee.............................................. 34
SECTION 9.4. Trustee Not Responsible for Recitals, Etc.............................. 35
SECTION 9.5. May Hold Debentures.................................................... 35
SECTION 9.6. Moneys Held in Trust................................................... 35
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 9.7. Compensation and Reimbursement......................................... 36
SECTION 9.8. Reliance on Officers' Certificate...................................... 36
SECTION 9.9. Disqualification: Conflicting Interests............................... 37
SECTION 9.10. Corporate Trustee Required; Eligibility................................ 37
SECTION 9.11. Resignation and Removal; Appointment of Successor...................... 37
SECTION 9.12. Acceptance of Appointment by Successor................................. 39
SECTION 9.13. Merger, Conversion, Consolidation or Succession to Business............ 39
SECTION 9.14. Preferential Collection of Claims Against the Company.................. 40
ARTICLE X.CONCERNING THE DEBENTUREHOLDERS................................................ 40
SECTION 10.1. Evidence of Action by Holders.......................................... 40
SECTION 10.2. Proof of Execution by Debentureholders................................. 41
SECTION 10.3. Who May Be Deemed Owners............................................... 41
SECTION 10.4. Certain Debentures Owned by Company Disregarded........................ 41
SECTION 10.5. Actions Binding on Future Debentureholders............................. 42
ARTICLE XI.SUPPLEMENTAL INDENTURES....................................................... 42
SECTION 11.1. Supplemental Indentures Without the Consent of
Debentureholders..................................................... 42
SECTION 11.2. Supplemental Indentures with Consent of Debentureholders............... 43
SECTION 11.3. Effect of Supplemental Indentures...................................... 44
SECTION 11.4. Debentures Affected by Supplemental Indentures......................... 44
SECTION 11.5. Execution of Supplemental Indentures................................... 44
ARTICLE XII.SUCCESSOR CORPORATION........................................................ 45
SECTION 12.1. Company May Consolidate, Etc........................................... 45
SECTION 12.2. Successor Corporation Substituted...................................... 45
SECTION 12.3. Evidence of Consolidation, Etc. to Trustee............................. 46
ARTICLE XIII.SATISFACTION AND DISCHARGE.................................................. 46
SECTION 13.1. Satisfaction and Discharge of Indenture................................ 46
SECTION 13.2. Discharge of Obligations............................................... 47
SECTION 13.3. Deposited Moneys to Be Held in Trust................................... 47
SECTION 13.4. Payment of Monies Held by Paying Agents................................ 47
SECTION 13.5. Repayment to Company................................................... 47
ARTICLE XIV.IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERSAND DIRECTORS.................................................... 48
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 14.1. No Recourse............................................................ 48
ARTICLE XV.MISCELLANEOUS PROVISIONS...................................................... 48
SECTION 15.1. Effect on Successors and Assigns....................................... 48
SECTION 15.2. Actions by Successor................................................... 48
SECTION 15.3. Surrender of Company Powers............................................ 49
SECTION 15.4. Notices................................................................ 49
SECTION 15.5. Governing Law.......................................................... 49
SECTION 15.6. Treatment of Debentures as Debt........................................ 49
SECTION 15.7. Compliance Certificates and Opinions................................... 49
SECTION 15.8. Payments on Business Days.............................................. 50
SECTION 15.9. Conflict with Trust Indenture Act...................................... 50
SECTION 15.10. Counterparts........................................................... 50
SECTION 15.11. Separability........................................................... 50
SECTION 15.12. Assignment............................................................. 50
SECTION 15.13. Acknowledgment of Rights............................................... 51
ARTICLE XVI.SUBORDINATION OF DEBENTURES.................................................. 51
SECTION 16.1. Agreement to Subordinate............................................... 51
SECTION 16.2. Default on Senior Debt, Subordinated Debt or Additional
Senior Obligations................................................... 51
SECTION 16.3. Liquidation; Dissolution; Bankruptcy................................... 52
SECTION 16.4. Subrogation............................................................ 53
SECTION 16.5. Trustee to Effectuate Subordination.................................... 54
SECTION 16.6. Notice by the Company.................................................. 55
SECTION 16.7. Rights of the Trustee; Holders of Senior Indebtedness.................. 55
SECTION 16.8. Subordination May Not Be Impaired...................................... 56
</TABLE>
iv
<PAGE>
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED INDENTURE
- ------------------ -----------------
<S> <C>
310(a).......................................................... 9.10
310(b)..................................................... 9.9, 9.11
310(c)................................................ Not Applicable
311(a).......................................................... 9.14
311(b).......................................................... 9.14
311(c)................................................ Not Applicable
312(a)................................................... 6.1, 6.2(a)
312(b)........................................................ 6.2(c)
312(c)........................................................ 6.2(c)
313(a)........................................................ 6.4(a)
313(b)........................................................ 6.4(b)
313(c)................................................ 6.4(a), 6.4(b)
313(d)........................................................ 6.4(c)
314(a)........................................................ 6.3(a)
314(b)................................................ Not Applicable
314(c).......................................................... 15.7
314(d)................................................ Not Applicable
314(e).......................................................... 15.7
314(f)................................................ Not Applicable
315(a)................................................... 9.1(a), 9.3
315(b)........................................................... 9.2
315(c)........................................................ 9.1(a)
315(d)........................................................ 9.1(b)
315(e)........................................................... 7.7
316(a)...................................................... 1.1, 7.6
316(b)........................................................ 7.4(b)
316(c)....................................................... 10.1(b)
317(a)........................................................... 7.2
317(b)........................................................... 5.3
318(a).......................................................... 15.9
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Indenture.
v
<PAGE>
INDENTURE
INDENTURE, dated as of November 13, 1997, between PREMIER BANCSHARES,
INC., a corporation organized and existing under the laws of the State of
Georgia (the "Company") and STATE STREET BANK AND TRUST COMPANY, a banking
corporation duly organized and existing under the laws of the Commonwealth of
Massachusetts, as trustee (the "Trustee").
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of securities to be known as its ____% Subordinated Debentures due
December 31, 2027 (hereinafter referred to as the "Debentures"), the form and
substance of such Debentures and the terms, provisions and conditions thereof to
be set forth as provided in this Indenture;
WHEREAS, Premier Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the public $25 million (or $28,750,000 if the
underwriters' over-allotment option is exercised) aggregate liquidation amount
of its Preferred Securities (as defined herein) and proposes to invest the
proceeds from such offering, together with the proceeds of the issuance and sale
by the Trust to the Company of $773,196 (or $889,175 if the underwriters' over-
allotment option is exercised) aggregate liquidation amount of its Common
Securities (as defined herein), in $25,773,196 (or $29,639,175 if the
underwriters' over-allotment is exercised) aggregate principal amount of the
Debentures;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture;
WHEREAS, all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this Indenture have been duly authorized in all respects;
WHEREAS, to provide the terms and conditions upon which the Debentures
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Debentures by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of the Debentures:
<PAGE>
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS OF TERMS.
The terms defined in this Section 1.1 (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.1 and shall include the
plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act, or that are by reference in the Trust
Indenture Act defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in the Trust Indenture Act and in the Securities
Act as in force at the date of the execution of this instrument. All accounting
terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with Generally Accepted Accounting Principles.
"Additional Interest" shall have the meaning set forth in Section 2.4.
"Additional Senior Obligations" means all indebtedness of the Company
whether incurred on or prior to the date of this Indenture or thereafter
incurred, for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations does not include claims in
respect of Senior Debt or Subordinated Debt or obligations which, by their
terms, are expressly stated to be not superior in right of payment to the
Debentures or to rank pari passu in right of payment with the Debentures. For
purposes of this definition, "claim" shall have the meaning assigned thereto in
Section 101(4) of the United States Bankruptcy Code of 1978, as amended.
"Administrative Trustees" shall have the meaning set forth in the Trust
Agreement.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person; (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; (d) a partnership in which the specified Person is a
general partner; (e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to the
Debentures appointed by the Trustee pursuant to Section 2.11.
2
<PAGE>
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law enacted for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board or any other duly designated officers of
the Company.
"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.
"Business Day" means, with respect to the Debentures, any day other than
a Saturday or a Sunday or a day on which federal or state banking institutions
in Atlanta, Georgia, are authorized or required by law, executive order or
regulation to close, or a day on which the Corporate Trust Office of the Trustee
or the Property Trustee is closed for business.
"Capital Event" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters (which may be counsel to the Company) that the
Company cannot, or within 90 days after the date of the Opinion of such Counsel
will not, be permitted by the applicable regulatory authorities, due to a change
in law, regulation, policy or guideline or interpretation or application of law
or regulation, policy or guideline, to account for the Preferred Securities as
Tier 1 capital under the capital guidelines or policies of the Federal Reserve.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer, the principal accounting officer, the
treasurer or any vice president of the Company. The Certificate need not comply
with the provisions of Section 15.7.
"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
"Commission" means the Securities and Exchange Commission.
"Common Securities" means undivided beneficial interests in the assets of
the Trust which rank pari passu with the Preferred Securities; provided,
however, that upon the occurrence of an Event of Default, the rights of holders
of Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of Preferred Securities.
"Company" means Premier Bancshares, Inc., a corporation duly organized
and existing under the laws of the State of Georgia, and, subject to the
provisions of Article XII, shall also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
3
<PAGE>
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at Two International Place, Boston,
Massachusetts 02110-2804.
"Coupon Rate" shall have the meaning set forth in Section 2.4.
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals hereto.
"Debentureholder," "holder of Debentures," "registered holder," or other
similar term, means the Person or Persons in whose name or names a particular
Debenture shall be registered on the books of the Company or the Trustee kept
for that purpose in accordance with the terms of this Indenture.
"Debenture Register" shall have the meaning set forth in Section 2.6(b).
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Trust Agreement and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Trust Agreement.
4
<PAGE>
"Event of Default" means, with respect to the Debentures, any event
specified in Section 7.1, which has continued for the period of time, if any,
and after the giving of the notice, if any, therein designated.
"Exchange Act," means the Securities Exchange Act of 1934, as amended, as
in effect at the date of execution of this instrument.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Generally Accepted Accounting Principles" means such accounting
principles as are generally accepted at the time of any computation required
hereunder.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"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 in accordance with the terms hereof.
"Interest Payment Date," when used with respect to any installment of
interest on the Debentures, means the date specified in the Debenture or in a
Board Resolution or in an indenture supplemental hereto with respect to the
Debentures as the fixed date on which an installment of interest with respect to
the Debentures is due and payable.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
5
<PAGE>
"Investment Company Event" means the receipt by the Trust of an Opinion
of Counsel, rendered by a law firm experienced in such matters (which may be
counsel to the Company), to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or shall be considered an
"investment company" that is required to be registered under the Investment
Company Act, which Change in 1940 Act Law becomes effective on or after the date
of original issuance of the Preferred Securities under the Trust Agreement.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Interest,
if any.
"Ministerial Action" shall have the meaning set forth in Section 3.2.
"Officers' Certificate" means a certificate signed by the President or a
Vice President and by the Treasurer or an Assistant Treasurer or the Controller
or an Assistant Controller or the Secretary or an Assistant Secretary of the
Company that is delivered to the Trustee in accordance with the terms hereof.
Each such certificate shall include the statements provided for in Section 15.7,
if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 15.7, if and to the extent required by the
provisions thereof.
"Outstanding," when used with reference to the Debentures, means, subject
to the provisions of Section 10.4, as of any particular time, all Debentures
theretofore authenticated and delivered by the Trustee under this Indenture,
except (a) Debentures theretofore canceled by the Trustee or any paying agent,
or delivered to the Trustee or any paying agent for cancellation or that have
previously been canceled; (b) Debentures or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust by
the Company (if the Company shall act as its own paying agent); provided,
however, that if such Debentures or portions of such Debentures are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article III provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and (c) Debentures in lieu of or in
substitution for which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.6.
"Person" means any individual, corporation, partnership, joint-venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.
6
<PAGE>
"Predecessor Debenture" means every previous Debenture evidencing all or
a portion of the same debt as that evidenced by such particular Debenture; and,
for the purposes of this definition, any Debenture authenticated and delivered
under Section 2.8 in lieu of a lost, destroyed or stolen Debenture shall be
deemed to evidence the same debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" means undivided beneficial interests in the assets
of the Trust which rank pari passu with Common Securities issued by the Trust;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the Company may
enter into with the Trustee or other Persons that operate directly or indirectly
for the benefit of holders of Preferred Securities.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Responsible Officer" when used with respect to the Trustee means the
Chairman of the Board of Directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Scheduled Maturity Date" means December 31, 2027.
"Securities Act," means the Securities Act of 1933, as amended, as in
effect at the date of execution of this instrument.
"Senior Debt" means the principal of (and premium, if any) and interest,
if any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which is pari
passu with, or subordinated to, the Debentures; provided, however, that Senior
Debt shall not be deemed to include (i) any Debt of the Company which when
incurred and without respect to any election under section 1111(b) of the United
States Bankruptcy Code of 1978, as amended, was without recourse to the Company;
(ii) any Debt of the Company to any of its subsidiaries; (iii) any Debt to any
employee of the Company; (iv) any Debt which by its terms is subordinated to
trade accounts payable or accrued liabilities arising in the ordinary course of
business to the extent that payments made to the holders of such Debt by the
holders of the Debentures as a result of the subordination provisions of this
Indenture would be greater than they
7
<PAGE>
otherwise would have been as a result of any obligation of such holders to pay
amounts over to the obligees on such trade accounts payable or accrued
liabilities arising in the ordinary course of business as a result of
subordination provisions to which such Debt is subject; and (v) any Debt which
constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in Section 16.1.
"Special Event" means a Tax Event, a Capital Event or an Investment
Company Event.
"Subordinated Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, which is by its terms expressly provided to be junior and subordinate
to other Debt of the Company (other than the Debentures).
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries; (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries; and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel,
rendered by a law firm experienced in such matters (which may be counsel to the
Company), to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
that (i) the Trust is, or shall be within 90 days after the date of such Opinion
of Counsel, subject to United States federal income tax with respect to income
received or accrued on the Debentures; (ii) interest payable by the Company on
the Debentures is not, or within 90 days after the date of such Opinion of
Counsel, shall not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes; or (iii) the Trust is, or shall be
within 90 days after the date of such Opinion of Counsel, subject to more than a
de minimis amount of other taxes, duties, assessments or other governmental
charges. The Trust or the Company shall request and receive an Opinion of
Counsel with regard to such matters within a reasonable period of time after the
Trust or the Company shall have become aware of the possible occurrence of any
of the events described in clauses (i) through (iii) above.
"Trust" means Premier Capital Trust I, a Delaware statutory business
trust.
8
<PAGE>
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
November __, 1997, of the Trust.
"Trustee" means State Street Bank and Trust Company and, subject to the
provisions of Article IX, shall also include its successors and assigns, and, if
at any time there is more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939, as amended,
subject to the provisions of Sections 11.1, 11.2, and 12.1, as in effect at the
date of execution of this Indenture.
"Trust Securities" means the Common Securities and Preferred Securities,
collectively.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized Debentures designated the "___% Subordinated
Debentures due December 31, 2027," limited in aggregate principal amount to
$25,773,196 (or $29,639,175 if the underwriters' over-allotment option is
exercised), which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Debentures pursuant to Section
2.5.
SECTION 2.2. MATURITY.
The Maturity Date shall be the Scheduled Maturity Date.
SECTION 2.3. FORM AND PAYMENT.
The Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Debentures issued in
certificated form shall be payable, the transfer of such Debentures shall be
registrable and such Debentures shall be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the holder at such address as shall appear in the Debenture
Register or by wire transfer to an account maintained by the holder as specified
in the Debenture Register, provided that the holder provides proper transfer
instructions by the regular record date. Notwithstanding the foregoing, so long
as the holder of any
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Debentures is the Property Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any) on such
Debentures held by the Property Trustee shall be made at such place and to such
account as may be designated by the Property Trustee.
SECTION 2.4. INTEREST.
(a) Each Debenture shall bear interest at the rate of ___% per annum (the
"Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date") commencing on December 31, 1997, to the
Person in whose name such Debenture or any Predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the last month
of the calendar quarter.
(b) The amount of interest payable for any period shall be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed, shall be
computed on the basis of the actual number of days elapsed in such period.
In the event that any date on which interest is payable on the Debentures
is not a Business Day, then payment of interest payable on such date shall
be made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay), except that,
if such Business Day is in the next succeeding calendar year, such payment
shall be made on the next succeeding day which is a Business Day, in each
case with the same force and effect as if made on the date such payment
was originally payable.
(c) If, at any time while the Property Trustee is the holder of any
Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other
taxing authority, then, in any case, the Company shall pay as additional
interest ("Additional Interest") on the Debentures held by the Property
Trustee, such additional amounts as shall be required so that the net
amounts received and retained by the Trust and the Property Trustee after
paying such taxes, duties, assessments or other governmental charges shall
be equal to the amounts the Trust and the Property Trustee would have
received had no such taxes, duties, assessments or other government
charges been imposed.
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SECTION 2.5. EXECUTION AND AUTHENTICATIONS.
(a) The Debentures shall be signed on behalf of the Company by its Chairman,
President or one of its Vice Presidents, under its corporate seal attested
by its Secretary or one of its Assistant Secretaries. Signatures may be in
the form of a manual or facsimile signature. The Company may use the
facsimile signature of any Person who shall have been a Chairman,
President or Vice President thereof, or of any Person who shall have been
a Secretary or Assistant Secretary thereof, notwithstanding the fact that
at the time the Debentures shall be authenticated and delivered or
disposed of such Person shall have ceased to be the Chairman, President or
a Vice President, or the Secretary or an Assistant Secretary, of the
Company. The seal of the Company may be in the form of a facsimile of such
seal and may be impressed, affixed, imprinted or otherwise reproduced on
the Debentures. The Debentures may contain such notations, legends or
endorsements required by law, stock exchange rule or usage. Each Debenture
shall be dated the date of its authentication by the Trustee.
(b) A Debenture shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debenture so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
(c) At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debentures executed by the Company to
the Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Debentures signed by
its Chairman, President or any Vice President and its Treasurer or any
Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and deliver such Debentures.
(d) In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 9.1) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
form and terms thereof have been established in conformity with the
provisions of this Indenture.
(e) The Trustee shall not be required to authenticate such Debentures if the
issue of such Debentures pursuant to this Indenture shall affect the
Trustee's own rights, duties or immunities under the Debentures and this
Indenture or otherwise in a manner that is not reasonably acceptable to
the Trustee.
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SECTION 2.6. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) Debentures may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in Atlanta, Georgia, for
other Debentures and for a like aggregate principal amount, upon payment
of a sum sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section 2.6. In respect of any
Debentures so surrendered for exchange, the Company shall execute, the
Trustee shall authenticate and such office or agency shall deliver in
exchange therefor the Debenture or Debentures that the Debentureholder
making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in Atlanta, Georgia, or such other location
designated by the Company, a register or registers (herein referred to as
the "Debenture Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall register the Debentures and the
transfers of Debentures as in this Article II provided and which at all
reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfer of
Debentures as herein provided initially will be the Trustee. The registrar
thereafter may be appointed as authorized by Board Resolution (the
"Debenture Registrar"). Upon surrender for transfer of any Debenture at
the office or agency of the Company designated for such purpose, the
Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new
Debenture or Debentures for a like aggregate principal amount. All
Debentures presented or surrendered for exchange or registration of
transfer, as provided in this Section 2.6, shall be accompanied (if so
required by the Company or the Debenture Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company
or the Debenture Registrar, duly executed by the registered holder or by
such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Debentures, or issue of new Debentures in case of partial
redemption, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.7, Section 3.5(b) and Section 11.4 not
involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or register the
transfer of any Debentures during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption
of less than all the Outstanding Debentures and ending at the close of
business on the day of such mailing; nor (ii) to register the transfer of
or exchange any Debentures or portions thereof called for redemption.
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SECTION 2.7. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may
execute, and the Trustee shall authenticate and deliver, temporary Debentures
(printed, lithographed, or typewritten). Such temporary Debentures shall be
substantially in the form of the definitive Debentures in lieu of which they are
issued, but with such omissions, insertions and variations as may be appropriate
for temporary Debentures, all as may be determined by the Company. Every
temporary Debenture shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Debentures. Without unnecessary delay the
Company shall execute and shall furnish definitive Debentures and thereupon any
or all temporary Debentures may be surrendered in exchange therefor (without
charge to the holders), at the office or agency of the Company designated for
the purpose in Atlanta, Georgia, and the Trustee shall authenticate and such
office or agency shall deliver in exchange for such temporary Debentures an
equal aggregate principal amount of definitive Debentures, unless the Company
advises the Trustee to the effect that definitive Debentures need not be
executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debentures shall be entitled to the same benefits under
this Indenture as definitive Debentures authenticated and delivered hereunder.
SECTION 2.8. MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES.
(a) In case any temporary or definitive Debenture shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company's request the Trustee
(subject as aforesaid) shall authenticate and deliver, a new Debenture
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debenture, or in lieu of and in
substitution for the Debenture so destroyed, lost or stolen. In every case
the applicant for a substituted Debenture shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save
each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of the applicant's
Debenture and of the ownership thereof. The Trustee may authenticate any
such substituted Debenture and deliver the same upon the written request
or authorization of any officer of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any Debenture that
has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute
Debenture, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Debenture) if the applicant for
such payment shall furnish to the Company and the Trustee such
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security or indemnity as they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the satisfaction of the
Company and the Trustee of the destruction, loss or theft of such
Debenture and of the ownership thereof.
(b) Every replacement Debenture issued pursuant to the provisions of this
Section 2.8 shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Debenture
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debentures duly issued hereunder. All Debentures
shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures, and shall preclude (to
the extent lawful) any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.9. CANCELLATION.
All Debentures surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any
paying agent, be delivered to the Trustee for cancellation, or, if surrendered
to the Trustee, shall be canceled by it, and no Debentures shall be issued in
lieu thereof except as expressly required or permitted by any of the provisions
of this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Debentures held by the Trustee. In
the absence of such request the Trustee may dispose of canceled Debentures in
accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.10. BENEFIT OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or implied, shall
give or be construed to give to any Person, other than the parties hereto and
the holders of the Debentures (and, with respect to the provisions of Article
XVI, the holders of Senior Indebtedness) any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant, condition or
provision herein contained; all such covenants, conditions and provisions being
for the sole benefit of the parties hereto and of the holders of the Debentures
(and, with respect to the provisions of Article XVI, the holders of Senior
Indebtedness).
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SECTION 2.11. AUTHENTICATION AGENT.
(a) So long as any of the Debentures remain Outstanding there may be an
Authenticating Agent for any or all such Debentures, which the Trustee
shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Debentures
issued upon exchange, transfer or partial redemption thereof, and
Debentures 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. All references in this Indenture
to the authentication of Debentures by the Trustee shall be deemed to
include authentication by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction under
which it is organized or in which it is doing business to conduct a trust
business, and that is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
ARTICLE III.
REDEMPTION OF DEBENTURES
SECTION 3.1. REDEMPTION.
Subject to the Company's having received prior approval of the Federal
Reserve, if then required under the applicable capital guidelines or policies of
the Federal Reserve, the Company may redeem the Debentures issued hereunder on
and after the dates set forth in and in accordance with the terms of this
Article III.
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SECTION 3.2. SPECIAL EVENT REDEMPTION.
Subject to the Company's having received the prior approval of the
Federal Reserve, if then required under the applicable capital guidelines or
policies of the Federal Reserve, if a Special Event has occurred and is
continuing, then, notwithstanding Section 3.3(a) but subject to Section 3.3(b),
the Company shall have the right upon not less than 30 days' nor more than 60
days' notice to the holders of the Debentures to redeem the Debentures, in whole
but not in part, for cash within 180 days following the occurrence of such
Special Event (the "180-Day Period") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon to
the date of such redemption (the "Redemption Price"), provided that if at the
time there is available to the Company the opportunity to eliminate, within the
180-Day Period, a Tax Event by taking some ministerial action (a "Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on the Company, the Trust
or the holders of the Trust Securities issued by the Trust, the Company shall
pursue such Ministerial Action in lieu of redemption. The Redemption Price
shall be paid prior to 12:00 noon, Atlanta, Georgia time, on the date of such
redemption or such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., Atlanta, Georgia time, on the date such
Redemption Price is to be paid.
SECTION 3.3. OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.3(b), except as otherwise may be
specified in this Indenture, the Company shall have the right to redeem
the Debentures, in whole or in part, from time to time, on or after
December 31, 2007, at a Redemption Price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon to the
date of such redemption. Any redemption pursuant to this Section 3.3(a)
shall be made upon not less than 30 days' nor more than 60 days' notice to
the holder of the Debentures, at the Redemption Price. If the Debentures
are only partially redeemed pursuant to this Section 3.3, the Debentures
shall be redeemed pro rata or by lot or in such other manner as the
Trustee shall deem appropriate and fair in its discretion. The Redemption
Price shall be paid prior to 12:00 noon, Atlanta, Georgia time, on the
date of such redemption or at such earlier time as the Company determines
provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m., Atlanta, Georgia
time, on the date such Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in the delisting of
the Preferred Securities issued by the Trust from the American Stock
Exchange (AMEX) or any national securities exchange or other organization
on which the Preferred Securities are then listed, the Company shall not
be permitted to effect such partial redemption and may only redeem the
Debentures in whole.
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SECTION 3.4. NOTICE OF REDEMPTION.
(a) In case the Company shall desire to exercise such right to redeem all or,
as the case may be, a portion of the Debentures in accordance with the
right reserved so to do, the Company shall, or shall cause the Trustee to
upon receipt of 45 days' written notice from the Company, give notice of
such redemption to holders of the Debentures to be redeemed by mailing,
first class postage prepaid, a notice of such redemption not less than 30
days and not more than 60 days before the date fixed for redemption to
such holders at their last addresses as they shall appear upon the
Debenture Register unless a shorter period is specified in the Debentures
to be redeemed. Any notice that is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture designated for redemption in
whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Debentures. In
the case of any redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such Debentures or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the Redemption Price and shall state that payment of the Redemption
Price shall be made at the office or agency of the Company in Atlanta,
Georgia or at the Corporate Trust Office, upon presentation and surrender
of such Debentures, that interest accrued to the date fixed for redemption
shall be paid as specified in said notice and that from and after said
date interest shall cease to accrue. If less than all the Debentures are
to be redeemed, the notice to the holders of the Debentures shall specify
the particular Debentures to be redeemed. If the Debentures are to be
redeemed in part only, the notice shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the
redemption date, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof
shall be issued.
(b) If less than all the Debentures are to be redeemed, the Company shall give
the Trustee at least 45 days' notice in advance of the date fixed for
redemption as to the aggregate principal amount of Debentures to be
redeemed, and thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion, the
portion or portions (equal to $25.00 or any integral multiple thereof) of
the Debentures to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Debentures to be redeemed, in
whole or in part. The Company may, if and whenever it shall so elect
pursuant to the terms hereof, by delivery of instructions signed on its
behalf by its Chairman, its President or any Vice President, instruct the
Trustee or any paying agent to call all or any part of the Debentures for
redemption and to give notice of redemption in the manner set forth
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in this Section 3.4, such notice to be in the name of the Company or its
own name as the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the Trustee or any
such paying agent, the Company shall deliver or cause to be delivered to,
or permit to remain with, the Trustee or such paying agent, as the case
may be, such Debenture Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under
the provisions of this Section 3.4.
SECTION 3.5. PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been completed as above
provided, the Debentures or portions of Debentures to be redeemed
specified in such notice shall become due and payable on the date and at
the place stated in such notice at the applicable Redemption Price, and
interest on such Debentures or portions of Debentures shall cease to
accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such Redemption Price with respect to any
such Debenture or portion thereof. On presentation and surrender of such
Debentures on or after the date fixed for redemption at the place of
payment specified in the notice, said Debentures shall be paid and
redeemed at the Redemption Price (but if the date fixed for redemption is
an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the
applicable interest payment date).
(b) Upon presentation of any Debenture that is to be redeemed in part only,
the Company shall execute and the Trustee shall authenticate and the
office or agency where the Debenture is presented shall deliver to the
holder thereof, at the expense of the Company, a new Debenture of
authorized denomination in principal amount equal to the unredeemed
portion of the Debenture so presented.
SECTION 3.6. NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest by extending
the interest payment period of such Debentures for a period not exceeding 20
consecutive quarters (the "Extended Interest Payment
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Period"), during which Extended Interest Payment Period no interest shall be due
and payable; provided that no Extended Interest Payment Period may extend beyond
the Maturity Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, shall bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall calculate (and deliver such calculation to the
Trustee) and pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together, "Deferred Interest")
that shall be payable to the holders of the Debentures in whose names the
Debentures are registered in the Debenture Register on the first record date
after the end of the Extended Interest Payment Period. Before the termination
of any Extended Interest Payment Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters, or extend beyond the Maturity
Date of the Debentures. Upon the termination of any Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof, but the Company may prepay at any
time all or any portion of the interest accrued during an Extended Interest
Payment Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of the Debentures at
the time the Company selects an Extended Interest Payment Period, the
Company shall give written notice to the Administrative Trustees, the
Property Trustee and the Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (i) the
next succeeding date on which Distributions on the Trust Securities issued
by the Trust are payable; or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are payable, to
the American Stock Exchange Inc. (AMEX) or other applicable self-
regulatory organization or to holders of the Preferred Securities issued
by the Trust, but in any event at least one Business Day before such
record date.
(b) If the Property Trustee is not the only holder of the Debentures at the
time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Debentures and the Trustee written notice of
its selection of such Extended Interest Payment Period at least one
Business Day before the earlier of (i) the next succeeding Interest
Payment Date; or (ii) the date the Company is required to give notice of
the record or payment date of such interest payment to the American Stock
Exchange (AMEX) or other applicable self-regulatory organization or to
holders of the Debentures.
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(c) The quarter in which any notice is given pursuant to paragraphs (a) or (b)
of this Section 4.2 shall be counted as one of the 20 quarters permitted
in the maximum Extended Interest Payment Period permitted under Section
4.1.
SECTION 4.3. LIMITATION ON TRANSACTIONS.
If (i) the Company shall exercise its right to defer payment of interest
as provided in Section 4.1; or (ii) there shall have occurred any Event of
Default, then (a) the Company shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than as a
result of a reclassification of its capital stock for another class of its
capital stock) and (b) the Company shall not make any payment of interest,
principal or premium, if any, or repay, repurchase or redeem any debt securities
issued by the Company which rank pari passu with or junior to the Debentures;
provided, however, that notwithstanding the foregoing the Company may make
payments pursuant to its obligations under the Preferred Securities Guarantee;
and (c) the Company shall not redeem, purchase or acquire less than all of the
outstanding Debentures or any of the Preferred Securities.
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company shall duly and punctually pay or cause to be paid the
principal of and interest on the Debentures at the time and place and in the
manner provided herein.
SECTION 5.2. MAINTENANCE OF AGENCY.
So long as any of the Debentures remain Outstanding, the Company shall
maintain, or shall cause to be maintained, an office or agency in Atlanta,
Georgia, and at such other location or locations as may be designated as
provided in this Section 5.2, where (i) Debentures may be presented for payment;
(ii) Debentures may be presented as hereinabove authorized for registration of
transfer and exchange; and (iii) notices and demands to or upon the Company in
respect of the Debentures and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its Chairman, its President or a Vice
President and delivered to the Trustee, designate some other office or agency
for such purposes or any of them. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, notices and
demands. In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside of Atlanta, Georgia,
where the Debentures may be presented for registration or transfer and for
exchange in the manner provided herein, and the Company may from time to time
rescind such designation as the Company may deem desirable or expedient;
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provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office or agency in
Atlanta, Georgia, for the purposes above mentioned. The Company shall give the
Trustee prompt written notice of any such designation or rescission thereof.
SECTION 5.3. PAYING AGENTS.
(a) The Trustee shall be the initial paying agent. If the Company shall
appoint one or more paying agents for the Debentures, other than the
Trustee, the Company shall cause each such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section 5.3:
(i) that it shall hold all sums held by it as such agent for the payment
of the principal of or interest on the Debentures (whether such sums
have been paid to it by the Company or by any other obligor of such
Debentures) in trust for the benefit of the Persons entitled
thereto;
(ii) that it shall give the Trustee notice of any failure by the Company
(or by any other obligor of such Debentures) to make any payment of
the principal of or interest on the Debentures when the same shall
be due and payable;
(iii) that it shall, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(ii) above, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying agent; and
(iv) that it shall perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Company shall act as its own paying agent with respect to the
Debentures, it shall on or before each due date of the principal of or
interest on such Debentures, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such
principal or interest so becoming due on Debentures until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and
shall promptly notify the Trustee of such action, or any failure (by it or
any other obligor on such Debentures) to take such action. Whenever the
Company shall have one or more paying agents for the Debentures, it shall,
prior to each due date of the principal of or interest on any Debentures,
deposit with the paying agent a sum sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal or interest, and (unless
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such paying agent is the Trustee) the Company shall promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section 5.3 to the contrary, (i) the
agreement to hold sums in trust as provided in this Section 5.3 is subject
to the provisions of Section 13.3 and 13.4; and (ii) 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 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 terms and
conditions 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.
SECTION 5.4. APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, shall appoint, in the manner provided in Section 9.11, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 5.5. COMPLIANCE WITH CONSOLIDATION PROVISIONS.
The Company shall not, while any of the Debentures remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article XII hereof are complied with.
SECTION 5.6. LIMITATION ON TRANSACTIONS.
If Debentures are issued to the Trust or a trustee of the Trust in
connection with the issuance of Trust Securities by the Trust and (i) there
shall have occurred any event that would constitute an Event of Default; (ii)
the Company shall be in default with respect to its payment of any obligations
under the Preferred Securities Guarantee relating to the Trust; or (iii) the
Company shall have given notice of its election to defer payments of interest on
such Debentures by extending the interest payment period as provided in this
Indenture and such period, or any extension thereof, shall be continuing, then
(a) the Company shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than as a result of a
reclassification of its capital stock) and (b) the Company shall not make any
payment of interest, principal or premium, if any, or repay, repurchase or
redeem any debt securities issued by the Company which rank pari passu with or
junior to the Debentures; provided, however, that the Company may make payments
pursuant to its obligations under the Preferred Securities Guarantee; and (c)
the Company shall not redeem, purchase or acquire less than all of the
outstanding Debentures or any of the Preferred Securities.
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SECTION 5.7. COVENANTS AS TO THE TRUST.
For so long as such Trust Securities of the Trust remain outstanding, the
Company shall (i) maintain 100% direct or indirect ownership of the Common
Securities of the Trust; provided, however, that any permitted successor of the
Company under this Indenture may succeed to the Company's ownership of the
Common Securities; (ii) not voluntarily terminate, wind up or liquidate the
Trust, except upon prior approval of the Federal Reserve if then so required
under applicable capital guidelines or policies of the Federal Reserve and use
its reasonable efforts to cause the Trust (a) to remain a business trust, except
in connection with a distribution of Debentures, the redemption of all of the
Trust Securities of the Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement; and (b) to otherwise
continue not to be treated as an association taxable as a corporation or
partnership for United States federal income tax purposes; and (iii) use its
reasonable efforts to cause each holder of Trust Securities to be treated as
owning an individual beneficial interest in the Debentures. In connection with
the distribution of the Debentures to the holders of the Preferred Securities
issued by the Trust upon a Dissolution Event, the Company shall use its best
efforts to list such Debentures on the American Stock Exchange (AMEX) or on such
other exchange as the Preferred Securities are then listed.
SECTION 5.8. COVENANTS AS TO PURCHASES.
Prior to December 31, 2007 the Company shall not purchase any Debentures,
in whole or in part, from the Trust, except if a Capital Event, a Tax Event or
Investment Company Event has occurred.
ARTICLE VI.
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS.
The Company shall furnish or cause to be furnished to the Trustee (a) on
a monthly basis on each regular record date a list, in such form as the Trustee
may reasonably require, of the names and addresses of the holders of the
Debentures as of such regular record date, provided that the Company shall not
be obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the
Trustee by the Company; 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; provided, however, that, in either case, no
such list need be furnished if the Trustee shall be the Debenture Registrar.
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SECTION 6.2. PRESERVATION OF INFORMATION COMMUNICATIONS WITH
DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders
of Debentures contained in the most recent list furnished to it as
provided in Section 6.1 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as registrar for the
Debentures (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in Section
6.1 upon receipt of a new list so furnished.
(c) Debentureholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Debentureholders with respect to their
rights under this Indenture or under the Debentures.
SECTION 6.3. REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the Trustee, within 15 days
after the Company 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) that the Company may
be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections,
then to file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Exchange Act 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) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from
to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first class postage
prepaid, or reputable over-night delivery service that provides for
evidence of receipt, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
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subsections (a) and (b) of this Section 6.3 as may be required by rules
and regulations prescribed from time to time by the Commission.
SECTION 6.4. REPORTS BY THE TRUSTEE.
(a) On or before July 15 in each year in which any of the Debentures are
Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses appear upon
the Debenture Register, a brief report dated as of the preceding May 15,
if and to the extent required under Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Debentureholders, be filed by the Trustee with the Company, with each
stock exchange upon which any Debentures are listed (if so listed) and
also with the Commission. The Company agrees to notify the Trustee when
any Debentures become listed on any stock exchange.
ARTICLE VII.
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT.
(a) Whenever used herein with respect to the Debentures, "Event of Default"
means any one or more of the following events that has occurred and is
continuing:
(i) the Company defaults in the payment of any installment of interest
upon any of the Debentures, as and when the same shall become due
and payable, and continuance of such default for a period of 30
days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of this
Indenture shall not constitute a default in the payment of interest
for this purpose;
(ii) the Company defaults in the payment of the principal on the
Debentures as and when the same shall become due and payable whether
at maturity, upon redemption, by declaration or otherwise; provided,
however, that a valid extension of the maturity of such Debentures
in accordance with the terms of this Indenture shall not constitute
a default in the payment of principal;
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(iii) the Company fails to observe or perform any other of its covenants
or agreements with respect to the Debentures for a period of 90 days
after the date on which written notice of such failure, requiring
the same to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least 25% in principal amount of the
Debentures at the time Outstanding;
(iv) the Company pursuant to or within the meaning of any Bankruptcy Law
(i) commences a voluntary case; (ii) consents to the entry of an
order for relief against it in an involuntary case; (iii) consents
to the appointment of a Custodian of it or for all or substantially
all of its property; or (iv) makes a general assignment for the
benefit of its creditors;
(v) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case; (ii) appoints a Custodian of the Company for all
or substantially all of its property; or (iii) orders the
liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days; or
(vi) the Trust shall have voluntarily or involuntarily dissolved, wound-
up its business or otherwise terminated its existence except in
connection with (i) the distribution of Debentures to holders of
Trust Securities in liquidation of their interests in the Trust;
(ii) the redemption of all of the outstanding Trust Securities of
the Trust; or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement.
(b) In each and every such case, unless the principal of all the Debentures
shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the
Debentures then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Debentureholders) may declare the
principal of all the Debentures to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately
due and payable, notwithstanding anything contained in this Indenture or
in the Debentures.
(c) At any time after the principal of the Debentures shall have been so
declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal
amount of the Debentures then Outstanding hereunder, by written notice to
the Company and the Trustee, may rescind and annul such declaration and
its consequences if: (i) the Company has paid or deposited with the
Trustee a sum
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sufficient to pay all matured installments of interest upon all the
Debentures and the principal of any and all Debentures that shall have
become due otherwise than by acceleration (with interest upon such
principal, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per
annum expressed in the Debentures to the date of such payment or deposit)
and the amount payable to the Trustee under Section 9.7; and (ii) any and
all Events of Default under this Indenture, other than the nonpayment of
principal on Debentures that shall not have become due by their terms,
shall have been remedied or waived as provided in Section 7.6. No such
rescission and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with respect
to Debentures under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for
any other reason or shall have been determined adversely to the Trustee,
then and in every such case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceedings had been taken.
SECTION 7.2. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) The Company covenants that (i) in case it shall default in the payment of
any installment of interest on any of the Debentures, and such default
shall have continued for a period of 90 Business Days; or (ii) in case it
shall default in the payment of the principal of any of the Debentures
when the same shall have become due and payable, whether upon maturity of
the Debentures or upon redemption or upon declaration or otherwise, then,
upon demand of the Trustee, the Company shall pay to the Trustee, for the
benefit of the holders of the Debentures, the whole amount that then shall
have become due and payable on all such Debentures for principal or
interest, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is enforceable
under applicable law and, if the Debentures are held by the Trust or a
trustee of the Trust, without duplication of any other amounts paid by the
Trust or trustee in respect thereof) upon overdue installments of interest
at the rate per annum expressed in the Debentures; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee under
Section 9.7.
(b) If the Company shall fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce
any such judgment or final decree against the Company or other obligor
upon the Debentures and collect the moneys adjudged
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or decreed to be payable in the manner provided by law out of the property
of the Company or other obligor upon the Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company or the creditors or property of either,
the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may
be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of the Debentures
allowed for the entire amount due and payable by the Company under this
Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 9.7; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of the Debentures to make such payments
to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Debentureholders, to pay to the
Trustee any amount due it under Section 9.7.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Debentures, may be
enforced by the Trustee without the possession of any of such Debentures,
or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the Trustee of
any amounts due under Section 9.7, be for the ratable benefit of the
holders of the Debentures. In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law. Nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Debentureholder any plan of reorganization,
arrangement, adjustment or composition affecting the Debentures or the
rights of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Debentureholder in any such proceeding.
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SECTION 7.3. APPLICATION OF MONEYS COLLECTED.
Any moneys collected by the Trustee pursuant to this Article VII with
respect to the Debentures shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the Debentures, and
notation thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 9.7;
SECOND: To the payment of all Senior Indebtedness of the Company if and to
the extent required by Article XVI; and
THIRD: To the payment of the amounts then due and unpaid upon the
Debentures for principal and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Debentures for principal and interest, respectively.
SECTION 7.4. LIMITATION ON SUITS.
(a) No holder of any Debenture shall have any right by virtue or by availing
of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (i) such holder previously shall have given
to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debentures specifying such Event
of Default, as hereinbefore provided; (ii) the holders of not less than
25% in aggregate principal amount of the Debentures then Outstanding shall
have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as trustee hereunder; (iii) such holder or
holders shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred
therein or thereby; and (iv) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have failed to
institute any such action, suit or proceeding; and (v) during such 60 day
period, the holders of a majority in principal amount of the Debentures do
not give the Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or any other
provisions of this Indenture, the right of any holder of the Debentures to
receive payment of the principal of and interest on the Debentures, as
therein provided, on or after the respective due dates expressed in such
Debenture (or in the case of redemption, on
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the redemption date), or to institute suit for the enforcement of any such
payment on or after such respective dates or redemption date, shall not be
impaired or affected without the consent of such holder and by accepting a
Debenture hereunder it is expressly understood, intended and covenanted by
the taker and holder of every Debenture with every other such taker and
holder and the Trustee, that no one or more holders of Debentures shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of
the holders of any other of such Debentures, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Debentures.
For the protection and enforcement of the provisions of this Section 7.4,
each and every Debentureholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 7.5. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER.
(a) Except as otherwise provided in Article XI, all powers and remedies given
by this Article VII to the Trustee or to the Debentureholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the
Debentures, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any of the
Debentures to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 7.4, every
power and remedy given by this Article VII or by law to the Trustee or the
Debentureholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Debentureholders.
SECTION 7.6. CONTROL BY DEBENTUREHOLDERS.
The holders of a majority in aggregate principal amount of the Debentures
at the time Outstanding, determined in accordance with Section 10.4, shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the provisions of
Section 9.1, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Debentures at the time Outstanding affected thereby,
determined in accordance with Section 10.4, may on behalf of the holders of all
of the Debentures waive any past
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default in the performance of any of the covenants contained herein and its
consequences, except (i) a default in the payment of the principal of or
interest on, any of the Debentures as and when the same shall become due by the
terms of such Debentures otherwise than by acceleration (unless such default has
been cured and a sum sufficient to pay all matured installments of interest and
principal has been deposited with the Trustee (in accordance with Section
7.1(c)); (ii) a default in the covenants contained in Section 5.6; or (iii) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the holder of each Outstanding Debenture affected;
provided, however, that if the Debentures are held by the Trust or a trustee of
the Trust, such waiver or modification to such waiver shall not be effective
until the holders of a majority in liquidation preference of Trust Securities of
the Trust shall have consented to such waiver or modification to such waiver;
provided further, that if the consent of the holder of each Outstanding
Debenture is required, such waiver shall not be effective until each holder of
the Trust Securities of the Trust shall have consented to such waiver. Upon any
such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Debentures shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 7.7. UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any Debentures by
such holder's 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 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 7.7 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders holding more than 10% in aggregate principal amount of the
Outstanding Debentures, or to any suit instituted by any Debentureholder for the
enforcement of the payment of the principal of or interest on the Debentures, on
or after the respective due dates expressed in such Debenture or established
pursuant to this Indenture.
ARTICLE VIII.
FORM OF DEBENTURE AND ORIGINAL ISSUE
SECTION 8.1. FORM OF DEBENTURE.
The Debenture and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the forms contained as Exhibit A to
this Indenture, attached hereto and incorporated herein by reference.
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SECTION 8.2. ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of $25,773,196 (or
$29,639,175 if the underwriters' over-allotment option is exercised) may, upon
execution of this Indenture or following the exercise of underwriters' over-
allotment option, be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by its Chairman,
its Vice Chairman, its President, or any Vice President and its Treasurer or an
Assistant Treasurer, without any further action by the Company.
ARTICLE IX.
CONCERNING THE TRUSTEE
SECTION 9.1. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform with respect to the Debentures such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of
Default has occurred that has not been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) 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 willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
(1) the duties and obligations of the Trustee shall with respect to
the Debentures be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable with respect
to the Debentures except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Debentures conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and
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conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions that 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;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal
amount of the Debentures at the time Outstanding 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 with respect to the
Debentures; and
(iv) none of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if there is reasonable
ground for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to
it.
SECTION 9.2. NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities, the Trustee shall transmit by mail to all holders of the Debentures,
as their names and addresses appear in the Debenture Register, notice of such
default, unless such default shall have been cured or waived; provided, however,
that, except in the case of default in the payment of the principal or interest
(including any Additional Interest) on any Debenture, 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 the directors and/or Responsible
Officers of the Trustee determines in good faith that the withholding of such
notice is in the interests of the holders of such Debentures; and provided,
further, that in the case of any default of the character specified in section
7.1(a)(iii), no such notice to holders of Debentures need be sent until at least
30 days after the occurrence thereof. For the purposes of this Section 9.2, 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 the Debentures.
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SECTION 9.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 9.1:
(a) The Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by its Chairman, its President or any
Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer thereof (unless other evidence in
respect thereof is specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a default or an Event
of Default, other than an Event of Default specified in Section 7.1(a)(i);
or (ii), unless and until it receives notification of such Event of
Default from the Company or by holders of at least 25% of the aggregate
principal amount of the Debentures at the time Outstanding;
(d) 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 or suffered or omitted
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, order or direction
of any of the Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (that has not been cured or waived) to
exercise with respect to the Debentures such of the rights and powers
vested in it by this Indenture, and to 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;
(f) The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(g) 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,
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request, consent, order, approval, bond, security, or other papers or
documents, unless requested in writing so to do by the holders of not less
than a majority in principal amount of the Outstanding Debentures
(determined as provided in Section 10.4); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable expense of
every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 9.4. TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.
(a) The Recitals contained herein and in the Debentures shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Debentures or of the proceeds of such Debentures, or
for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture, or for the use or
application of any moneys received by any paying agent other than the
Trustee.
SECTION 9.5. MAY HOLD DEBENTURES.
The Trustee or any paying agent or registrar for the Debentures, in its
individual or any other capacity, may become the owner or pledgee of Debentures
with the same rights it would have if it were not Trustee, paying agent or
Debenture Registrar.
SECTION 9.6. MONEYS HELD IN TRUST.
Subject to the provisions of Section 13.5, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be
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under no liability for interest on any moneys received by it hereunder except
such as it may agree with the Company to pay thereon.
SECTION 9.7. COMPENSATION AND REIMBURSEMENT.
(a) The Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust), as the Company and the Trustee may from time to time
agree in writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company shall pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim of
liability in the premises.
(b) The obligations of the Company under this Section 9.7 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior
to that of the Debentures 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 Debentures.
SECTION 9.8. RELIANCE ON OFFICERS' CERTIFICATE.
Except as otherwise provided in Section 9.1, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
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SECTION 9.9. DISQUALIFICATION: CONFLICTING INTERESTS.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 9.10. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee with respect to the Debentures
issued hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.10, 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. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 9.10, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.11.
SECTION 9.11. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee or any successor hereafter appointed, may at any time resign
by giving written notice thereof to the Company and by transmitting notice
of resignation by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Debentures by written
instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been
so appointed and have accepted appointment within 30 days after the
mailing 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 Debentures, or any Debentureholder who has been a
bona fide holder of a Debenture or Debentures for at least six months may,
subject to the provisions of Section 9.9, on behalf of himself and all
others similarly situated, petition any such court for the appointment of
a successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any one of the following shall occur
(i) the Trustee shall fail to comply with the provisions of Section 9.9
after written request therefor by the Company or by any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 9.10 and shall fail to resign after written
request therefor by the Company or by any such Debentureholder; or
(iii) The Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to
all Debentures and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 9.9,
unless the Trustee's duty to resign is stayed as provided herein, any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months may, on behalf of that holder and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the Debentures
at the time Outstanding may at any time remove the Trustee by so notifying
the Trustee and the Company and may appoint a successor Trustee with the
consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a successor
trustee with respect to the Debentures pursuant to any of the provisions
of this Section 9.11 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 9.12.
(e) Any successor trustee appointed pursuant to this Section 9.11 may be
appointed with respect to the Debentures, and at any time there shall be
only one Trustee with respect to the Debentures.
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SECTION 9.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor trustee with respect
to the Debentures, every successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor trustee all property and money held by such
retiring Trustee hereunder.
(b) Upon request of any 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) of this Section 9.12.
(c) 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 IX.
(d) Upon acceptance of appointment by a successor trustee as provided in this
Section 9.12, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within ten days
after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be transmitted at the expense of the
Company.
SECTION 9.13. 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 the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 9.9 and eligible under the provisions
of Section 9.10, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debentures 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 Debentures so authenticated with the same effect as if such
successor Trustee had itself authenticated such Debentures.
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SECTION 9.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE X.
CONCERNING THE DEBENTUREHOLDERS
SECTION 10.1. EVIDENCE OF ACTION BY HOLDERS.
(a) Whenever in this Indenture it is provided that the holders of a majority
or specified percentage in aggregate principal amount of the Debentures
may take any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders
of such majority or specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Debentures in Person or by agent or proxy
appointed in writing.
(b) If the Company shall solicit from the Debentureholders any request,
demand, authorization, direction, notice, consent, waiver or other action,
the Company may, at its option, as evidenced by an Officers' Certificate,
fix in advance a record date for the determination of Debentureholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no obligation
to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be
given before or after the record date, but only the Debentureholders of
record at the close of business on the record date shall be deemed to be
Debentureholders for the purposes of determining whether Debentureholders
of the requisite proportion of Outstanding Debentures have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Debentures shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such
Debentureholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
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SECTION 10.2. PROOF OF EXECUTION BY DEBENTUREHOLDERS.
Subject to the provisions of Section 9.1, proof of the execution of any
instrument by a Debentureholder (such proof shall not require notarization) or
his agent or proxy and proof of the holding by any Person of any of the
Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument
may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by the Debenture Register of
such Debentures or by a certificate of the Debenture Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred to in
this Section 10.2 as it shall deem necessary.
SECTION 10.3. WHO MAY BE DEEMED OWNERS.
Prior to the due presentment for registration of transfer of any
Debenture, the Company, the Trustee, any paying agent, any Authenticating Agent
and any Debenture Registrar may deem and treat the Person in whose name such
Debenture shall be registered upon the books of the Company as the absolute
owner of such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal of and interest on such Debenture (subject to Section
2.3) and for all other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Authenticating Agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
SECTION 10.4. CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED.
In determining whether the holders of the requisite aggregate principal
amount of Debentures have concurred in any direction, consent or waiver under
this Indenture, the Debentures that are owned by the Company or any other
obligor on the Debentures or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor on
the Debentures shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Debentures that the Trustee actually knows are so owned shall be
so disregarded. The Debentures so owned that have been pledged in good faith
may be regarded as Outstanding for the purposes of this Section 10.4, if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debentures and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
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SECTION 10.5. ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 10.1, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Debentures specified
in this Indenture in connection with such action, any holder of a Debenture that
is shown by the evidence to be included in the Debentures the holders of which
have consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 10.2, revoke such action so far
as concerns such Debenture. Except as aforesaid any such action taken by the
holder of any Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Debentures.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
DEBENTUREHOLDERS.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Debentureholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, in the Debentures;
(b) to comply with Article X;
(c) to provide for uncertificated Debentures in addition to or in place of
certificated Debentures;
(d) to add to the covenants of the Company for the benefit of the holders of
all or any of the Debentures or to surrender any right or power herein
conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Debentures, as herein set forth;
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(f) to make any change that does not adversely affect the rights of any
Debentureholder in any material respect;
(g) to provide for the issuance of and establish the form and terms and
conditions of the Debentures, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or of the
Debentures, or to add to the rights of the holders of the Debentures; or
(h) qualify or maintain the qualification of this Indenture under the Trust
Indenture Act. The Trustee is hereby authorized to join with the Company
in the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any such
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise. Any supplemental indenture
authorized by the provisions of this Section 11.1 may be executed by the
Company and the Trustee without the consent of the holders of any of the
Debentures at the time Outstanding, notwithstanding any of the provisions
of Section 11.2.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF DEBENTUREHOLDERS.
With the consent (evidenced as provided in Section 10.1) of the holders
of not less than a majority in aggregate principal amount of the Debentures at
the time Outstanding, the Company, when authorized by Board Resolutions, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 11.1 the rights of the holders of the Debentures under this
Indenture; provided, however, that no such supplemental indenture shall without
the consent of the holders of each Debenture then Outstanding and affected
thereby, (i) extend the fixed maturity of any Debentures, reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, without the consent of the holder of each Debenture so affected; or
(ii) reduce the aforesaid percentage of principal amount of Debentures, the
holders of which are required to consent to any such supplemental indenture;
provided further, that if the Debentures are held by the Trust or a trustee of
the Trust, such supplemental indenture shall not be effective until the holders
of a majority in liquidation preference of Trust Securities of the Trust shall
have consented to such supplemental indenture; provided further, that if the
consent of the holder of each Outstanding Debenture is required, such
supplemental indenture shall not be effective until each holder of the Trust
Securities of the Trust shall have consented to such supplemental indenture. It
shall not be necessary for the consent of the Debentureholders affected thereby
under this Section 11.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
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SECTION 11.3. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article XI, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Debentures shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 11.4. DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES.
Debentures affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture pursuant to the
provisions of this Article XI, may bear a notation in form approved by the
Company, provided such form meets the requirements of any exchange upon which
the Debentures may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures so modified as to
conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Debentures then Outstanding.
SECTION 11.5. EXECUTION OF SUPPLEMENTAL INDENTURES.
(a) Upon the request of the Company, accompanied by their Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Debentureholders
required to consent thereto as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section
9.1, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article XI is authorized
or permitted by, and conforms to, the terms of this Article XI and that it
is proper for the Trustee under the provisions of this Article XI to join
in the execution thereof.
(b) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 11.5,
the Trustee shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Debentureholders as their names and addresses appear
upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
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ARTICLE XII.
SUCCESSOR CORPORATION
SECTION 12.1. COMPANY MAY CONSOLIDATE, ETC.
Nothing contained in this Indenture or in any of the Debentures shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company, as the
case may be), or successive consolidations or mergers in which the Company, as
the case may be, or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company, as the case may be, or its successor or successors as
an entirety, or substantially as an entirety, to any other corporation (whether
or not affiliated with the Company, as the case may be, or its successor or
successors) authorized to acquire and operate the same; provided, however, the
Company hereby covenants and agrees that, (i) upon any such consolidation,
merger, sale, conveyance, transfer or other disposition, the due and punctual
payment, in the case of the Company, of the principal of and interest on all of
the Debentures, according to their tenor and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be kept
or performed by the Company as the case may be, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or into
which the Company, as the case may be, shall have been merged, or by the entity
which shall have acquired such property; (ii) in case the Company consolidates
with or merges into another Person or conveys or transfers its properties and
assets substantially then as an entirety to any Person, the successor Person is
organized under the laws of the United States or any state or the District of
Columbia; and (iii) immediately after giving effect thereto, an Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing.
SECTION 12.2. SUCCESSOR CORPORATION SUBSTITUTED.
(a) In case of any such consolidation, merger, sale, conveyance, transfer or
other disposition and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of, in the case of the Company, the
due and punctual payment of the principal of and interest on all of the
Debentures Outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Company,
as the case may be, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named
as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Debentures.
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(b) In case of any such consolidation, merger, sale, conveyance, transfer or
other disposition such changes in phraseology and form (but not in
substance) may be made in the Debentures thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the Debentures shall
prevent the Company from merging into itself or acquiring by purchase or
otherwise all or any part of the property of any other Person (whether or
not affiliated with the Company).
SECTION 12.3. EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.
The Trustee, subject to the provisions of Section 9.1, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article XII.
ARTICLE XIII.
SATISFACTION AND DISCHARGE
SECTION 13.1. SATISFACTION AND DISCHARGE OF INDENTURE.
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Debentures theretofore authenticated (other than any Debentures
that shall have been destroyed, lost or stolen and that shall have been replaced
or paid as provided in Section 2.8) and Debentures for whose payment money or
Governmental Obligations have theretofore been deposited in trust or segregated
and held in trust by the Company (and thereupon repaid to the Company or
discharged from such trust, as provided in Section 13.5); or (b) all such
Debentures not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit or cause to be deposited with the Trustee as trust funds
the entire amount in moneys or Governmental Obligations sufficient or 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 at maturity or upon redemption all Debentures
not theretofore delivered to the Trustee for cancellation, including principal
and interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company; then this Indenture shall
thereupon cease to be of further effect except for the provisions of Sections
2.3, 2.6, 2.8, 5.1, 5.2, 5.3 and 9.10, that shall survive until the date of
maturity or redemption date, as the case may be, and Sections 9.6 and 13.5, that
shall survive to such date and thereafter, and the Trustee, on demand of the
Company and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture.
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SECTION 13.2. DISCHARGE OF OBLIGATIONS.
If at any time all Debentures not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
13.1 shall have been paid by the Company by depositing irrevocably with the
Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all Debentures not theretofore
delivered to the Trustee for cancellation, including principal and interest due
or to become due to such date of maturity or date fixed for redemption, as the
case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with the Trustee,
the obligations of the Company under this Indenture shall cease to be of further
effect except for the provisions of Sections 2.3, 2.6, 2.8, 5.1, 5.2, 5.3, 9.6,
9.10 and 13.5 hereof that shall survive until such Debentures shall mature and
be paid. Thereafter, Sections 9.6 and 13.5 shall survive.
SECTION 13.3. DEPOSITED MONEYS TO BE HELD IN TRUST.
All monies or Governmental Obligations deposited with the Trustee
pursuant to Sections 13.1 or 13.2 shall be held in trust and shall be available
for payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the Debentures for
the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
SECTION 13.4. PAYMENT OF MONIES HELD BY PAYING AGENTS.
In connection with the satisfaction and discharge of this Indenture, all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
SECTION 13.5. REPAYMENT TO COMPANY.
Any monies or Governmental Obligations deposited with any paying agent or
the Trustee, or then held by the Company in trust, for payment of principal of
or interest on the Debentures that are not applied but remain unclaimed by the
holders of such Debentures for at least two years after the date upon which the
principal of or interest on such Debentures shall have respectively become due
and payable, shall be repaid to the Company, as the case may be, on December 31
of each year or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be released from all
further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.
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ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.1. NO RECOURSE.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of the Debentures, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that 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 predecessor or successor corporation, 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 Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, 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 Debentures 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 issuance of such Debentures.
ARTICLE XV.
MISCELLANEOUS PROVISIONS
SECTION 15.1. EFFECT ON SUCCESSORS AND ASSIGNS.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 15.2. ACTIONS BY SUCCESSOR.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
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SECTION 15.3. SURRENDER OF COMPANY POWERS.
The Company by instrument in writing executed by appropriate authority of
its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
corporation.
SECTION 15.4. NOTICES.
Except as otherwise expressly provided herein any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Debentures to or on the Company may
be given or served by being deposited first class postage prepaid in a post-
office letterbox addressed (until another address is filed in writing by the
Company with the Trustee), as follows: Premier Bancshares, Inc., 2180 Atlanta
Plaza, 950 East Paces Ferry Road, Atlanta, Georgia 30326, Attn: Darrell D.
Pittard. Any notice, election, request or demand by the Company or any
Debentureholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Corporate
Trust Office of the Trustee.
SECTION 15.5. GOVERNING LAW.
This Indenture and each Debenture shall be deemed to be a contract made
under the internal laws of the State of Georgia and for all purposes shall be
construed in accordance with the laws of said State.
SECTION 15.6. TREATMENT OF DEBENTURES AS DEBT.
It is intended that the Debentures shall be treated as indebtedness and
not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
SECTION 15.7. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
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(b) Each certificate or opinion of the Company provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture shall include (1) a statement that the
Person making such certificate or opinion has read such covenant or
condition; (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 such Person, he has made such examination or
investigation as, in the opinion of such Person, 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 or
not, in the opinion of such Person, such condition or covenant has been
complied with.
SECTION 15.8. PAYMENTS ON BUSINESS DAYS.
In any case where the date of maturity of interest or principal of any
Debenture or the date of redemption of any Debenture shall not be a Business
Day, then payment of interest or principal may (subject to Section 2.4) be made
on the next succeeding Business Day with the same force and effect as if made on
the nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 15.9. CONFLICT WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 15.10. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 15.11. SEPARABILITY.
In case any one or more of the provisions contained in this Indenture or
in the Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of the Debentures,
but this Indenture and the Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 15.12. ASSIGNMENT.
The Company shall have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company,
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provided that, in the event of any such assignment, the Company shall remain
liable for all such obligations. Subject to the foregoing, this Indenture is
binding upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise be assigned
by the parties thereto.
SECTION 15.13. ACKNOWLEDGMENT OF RIGHTS.
The Company acknowledges that, with respect to any Debentures held by the
Trust or a trustee of the Trust, if the Property Trustee fails to enforce its
rights under this Indenture as the holder of the Debentures held as the assets
of the Trust, any holder of Preferred Securities may institute legal proceedings
directly against the Company to enforce such Property Trustee's rights under
this Indenture without first instituting any legal proceedings against such
Property Trustee or any other person or entity. Notwithstanding the foregoing,
if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), the Company acknowledges that a
holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Debentures.
ARTICLE XVI.
SUBORDINATION OF DEBENTURES
SECTION 16.1. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each holder of Debentures issued
hereunder by such holder's acceptance thereof likewise covenants and agrees,
that all Debentures shall be issued subject to the provisions of this Article
XVI; and each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and interest on all
Debentures issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and junior in right of payment to the prior payment
in full of all Senior Debt, Subordinated Debt and Additional Senior Obligations
(collectively, "Senior Indebtedness") to the extent provided herein, whether
outstanding at the date of this Indenture or thereafter incurred. No provision
of this Article XVI shall prevent the occurrence of any default or Event of
Default hereunder.
SECTION 16.2. DEFAULT ON SENIOR DEBT, SUBORDINATED DEBT OR ADDITIONAL
SENIOR OBLIGATIONS.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company, or in the event that the maturity of any
Senior Indebtedness of the Company has been accelerated
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because of a default, then, in either case, no payment shall be made by the
Company with respect to the principal (including redemption payments) of or
interest on the Debentures. In the event that, notwithstanding the foregoing,
any payment shall be received by the Trustee when such payment is prohibited by
the preceding sentence of this Section 16.2, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 16.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment by the Company or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness of the Company shall first be paid in full,
or payment thereof provided for in money in accordance with its terms,
before any payment is made by the Company on account of the principal or
interest on the Debentures; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash,
property or securities, to which the holders of the Debentures or the
Trustee would be entitled to receive from the Company, except for the
provisions of this Article XVI, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the holders of the
Debentures or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Indebtedness of the Company (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full,
in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before
any payment or distribution is made to the holders of Debentures or to the
Trustee.
(b) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee before all Senior Indebtedness of the Company is
paid in full, or provision is made for such payment
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in money in accordance with its terms, such payment or distribution shall
be held in trust for the benefit of and shall be paid over or delivered to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness may
have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness
of the Company, as the case may be, remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
(c) For purposes of this Article XVI, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XVI with respect to the Debentures to the payment of all Senior
Indebtedness of the Company, as the case may be, that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the
new corporation, if any, resulting from any such reorganization or
readjustment; and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article XII
shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 16.3 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article XII. Nothing in
Section 16.2 or in this Section 16.3 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 9.7.
SECTION 16.4. SUBROGATION.
(a) Subject to the payment in full of all Senior Indebtedness of the Company,
the rights of the holders of the Debentures shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case
may be, applicable to such Senior Indebtedness until the principal of and
interest on the Debentures shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of such
Senior Indebtedness of any cash, property or securities to which the
holders of the Debentures or the Trustee would be entitled except for the
provisions of this Article XVI, and no payment over pursuant to the
provisions of this Article XVI to or for the benefit of the holders of
such Senior Indebtedness by holders of the
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Debentures or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders
of the Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions
of this Article XVI are and are intended solely for the purposes of
defining the relative rights of the holders of the Debentures, on the one
hand, and the holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere in this Indenture or in
the Debentures is intended to or shall impair, as between the Company, its
creditors (other than the holders of Senior Indebtedness of the Company),
and the holders of the Debentures, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the Debentures the
principal of and interest on the Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the holders of the Debentures and
creditors of the Company, as the case may be, other than the holders of
Senior Indebtedness of the Company, as the case may be, nor shall anything
herein or therein prevent the Trustee or the holder of any Debenture from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article
XVI of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, as the case may be, received upon
the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company referred to in
this Article XVI, the Trustee, subject to the provisions of Article IX,
and the holders of the Debentures shall be entitled to conclusively rely
upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidation trustee, agent or other Person making such payment
or distribution, delivered to the Trustee or to the holders of the
Debentures, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, as the case may be, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article XVI.
SECTION 16.5. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of Debentures by such holder's acceptance thereof authorizes
and directs the Trustee on such holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XVI and appoints the Trustee such holder's attorney-in-fact for any and
all such purposes.
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SECTION 16.6. NOTICE BY THE COMPANY.
(a) The Company shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Company that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XVI. Notwithstanding
the provisions of this Article XVI or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article XVI, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof from the Company or
a holder or holders of Senior Indebtedness or from any trustee therefor;
and before the receipt of any such written notice, the Trustee, subject to
the provisions of Section 9.1, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not
have received the notice provided for in this Section 16.6 at least two
Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Debenture), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such money and to apply the same to
the purposes for which they were received, and shall not be affected by
any notice to the contrary that may be received by it within two Business
Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1, shall be entitled
to conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness of the Company
(or a trustee on behalf of such holder) to establish that such notice has
been given by a holder of such Senior Indebtedness or a trustee on behalf
of any such holder or holders. 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 such Senior Indebtedness to participate in any
payment or distribution pursuant to this Article XVI, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of such Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of
such Person under this Article XVI, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
SECTION 16.7. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
(a) The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XVI in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall
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deprive the Trustee of any of its rights as such holder. The Trustee's
right to compensation and reimbursement of expenses as set forth in
Section 9.7 shall not be subject to the subordination provisions of the
Article XVI.
(b) With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XVI, and no
implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of such Senior Indebtedness and, subject to the provisions of Section 9.1,
the Trustee shall not be liable to any holder of such Senior Indebtedness
if it shall pay over or deliver to holders of Debentures, the Company or
any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XVI or otherwise.
SECTION 16.8. SUBORDINATION MAY NOT BE IMPAIRED.
(a) 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 that
any such holder may have or otherwise be charged with.
(b) Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness of the Company may, at any time and from
time to time, without the consent of or notice to the Trustee or the
holders of the Debentures, without incurring responsibility to the holders
of the Debentures and without impairing or releasing the subordination
provided in this Article XVI or the obligations hereunder of the holders
of the Debentures to the holders of such Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, such Senior
Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under
which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of such Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the Company
and any other Person.
56
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
PREMIER BANCSHARES, INC.
By:___________________________________________
Darrell D. Pittard, Chief Executive Officer
Attest: [CORPORATE SEAL]
___________________________
Barbara S. Burtt, Secretary
STATE STREET BANK AND TRUST
COMPANY, AS TRUSTEE
By:___________________________________________
Name:__________________________________
Title:_________________________________
[BANK SEAL]
57
<PAGE>
STATE OF ______________)
) ss:
COUNTY OF _____________)
On the _______ day of _______________________________, 199___, before me
personally came ______________________________to me known, who, being by me duly
sworn, did depose and say that he is the ____________________________ of
Company, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the said instrument is such corporation seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
_________________________________________
Notary Public,___________________________,
[SEAL] My Commission expires:___________________
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this _____ day of November 1997, before me appeared
____________________, to me personally known, who, being by me duly sworn (or
affirmed), did say that he is the _____________________ of State Street Bank and
Trust Company and that the seal affixed to said instrument is the corporate seal
of said corporation, and that said instrument was signed and sealed on behalf of
said corporation by authority of its board of directors, and said
_______________________ acknowledged said instrument to be the free act and deed
of said corporation.
_________________________________________
Notary Public,___________________________,
[SEAL] My Commission expires:___________________
58
<PAGE>
EXHIBIT 4.4
R-__
CUSIP No.
PREMIER BANCSHARES, INC.
___% SUBORDINATED DEBENTURE
DUE December 31, 2027
Premier Bancshares, Inc., a Georgia corporation (the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to, State Street Bank and Trust Company
or registered assigns, the principal sum of
_____________________________________ ($__________) on December 31, 2027 (the
"Stated Maturity"), or such other principal amount represented hereby as may be
set forth in the records of the Securities Registrar hereinafter referred to in
accordance with the Indenture. The Company further promises to pay interest on
said principal sum from November ____, 1997, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March, June, September and December of each year
commencing December 31, 1997, at the rate of ___% per annum together with
Additional Sums, if any, as provided in Section 10.6 of the Indenture, until the
principal hereof is paid or duly provided for or made available for payment,
provided that any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded quarterly.
The amount of interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on this Debenture is not a business day, then
payment of interest payable on such date shall be made on the next succeeding
day that is a business day (and without any interest or other payment in respect
of any such delay), except that, if such business day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding business
day, in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date shall, as provided in the Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures, as
defined in said Indenture) is registered at the close of business on the regular
record date for such interest installment, which shall be the close of business
on the business day next preceding such Interest Payment Date unless otherwise
provided in the Indenture. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
regular record date and may either be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered holders
of the Debentures not less than 10 days prior to such special record date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
<PAGE>
The principal of and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
Holder at such address as shall appear in the Debenture Register.
Notwithstanding the foregoing, so long as the Holder of this Debenture is the
Property Trustee, the payment of the principal of and interest on this Debenture
shall be made at such place and to such account as may be designated by the
Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions; (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided; and (c) appoints the Trustee his or her attorney-in-
fact for any and all such purposes. Each holder hereof, by his or her
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
under its corporate seal.
Dated November __, 1997 PREMIER BANCSHARES, INC.
By:
------------------------------------
Darrell D. Pittard
Attest: Chairman and Chief Executive Officer
By:
---------------------------
Barbara J. Burtt, Secretary
[SEAL]
2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned Indenture.
Dated:
- -------------------------------
State Street Bank and Trust Company, as
Trustee or Authentication Agent
By: By:
---------------------------- -----------------------------------
Authorized Signatory
Name:
---------------------------------
Title:
--------------------------------
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
___% SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the Company (herein
sometimes referred to as the "Debentures"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture dated as of November
___, 1997 (the "Indenture") duly executed and delivered between the Company and
State Street Bank and Trust Company, as Trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the holders of the Debentures and of the terms upon
which the Debentures are, and are to be, authenticated and delivered. This
Debenture is one of the ____% subordinated debentures (the "Subordinated
Debentures") series designated herein limited in aggregate principal amount to
$______________.
Because of the occurrence and continuation of a Special Event, in certain
circumstances, this Debenture may become due and payable at the principal amount
together with any interest accrued thereon (the "Redemption Price"). The
Redemption Price shall be paid prior to 12:00 noon, Eastern Standard Time, on
the date of such redemption or at such earlier time as the Company determines.
The Company shall have the right to redeem this Debenture at the option of the
Company, without premium or penalty, in whole or in part at any time on or after
December 31, 2007 (an "Optional Redemption"), or at any time in certain
circumstances upon the occurrence of a Special Event, at a Redemption Price
equal to 100% of the principal amount plus any accrued but unpaid interest, to
the date of such redemption. Any redemption pursuant to this paragraph shall be
made upon not less than 30 days nor more than 60 days notice, at the Redemption
Price. If the Debentures are only partially redeemed by the Company pursuant to
an Optional Redemption, the Debentures shall be redeemed pro rata or by lot or
by any other method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof shall be issued in the name of
the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debentures at the time outstanding, as defined in the
Indenture, to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the
<PAGE>
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debentures; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of the Debentures
except as provided in the Indenture, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, without the
consent of the holder of each Debenture so affected; or (ii) reduce the
aforesaid percentage of Debentures, the holders of which are required to consent
to any such supplemental indenture, without the consent of the holders of each
Debenture then outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Debentures at the time outstanding, on behalf of all of the holders of the
Debentures, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any of the Debentures. Any such consent or waiver by the registered holder of
this Debenture (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such holder and upon all future holders and owners of this
Debenture and of any Debenture issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal and interest on this Debenture
(including Additional Interest) at the time and place and at the rate and in the
money herein prescribed.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right at any time during the term of the Debentures and from time
to time to extend the interest payment period of such Debentures for up to 20
consecutive quarters (each, an "Extended Interest Payment Period"), at the end
of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Debentures to the
extent that payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period, the Company
may further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarters. At the termination of any
such Extended Interest Payment Period and upon the payment of all accrued and
unpaid interest and any additional amounts then due, the Company may commence a
new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount shall be
issued to the designated transferee or transferees.
2
<PAGE>
No service charge shall be made for any such transfer, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any agent of the Company or the Trustee may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Debenture Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
interest due hereon and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Debentures Registrar shall be affected by
any notice to the contrary.
The Company and, by its acceptance of this Debenture or a beneficial
interest therein, the Holder of, and any person that acquires a beneficial
interest in, this Debenture agrees that for United States Federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF GEORGIA.
THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF THE COMPANY, DOES NOT
EVIDENCE DEPOSITS AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
---
CORPORATION OR ANY OTHER INSURER OR GOVERNMENT AGENCY.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without coupons in
denominations of $25.00 and any integral multiple thereof.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture and in the Amended and
Restated Trust Agreement dated November __, 1997 (as modified, amended or
supplemented from time to time, the "Trust Agreement"), relating to Premier
Capital Trust (the "Trust") among the Company, as Depositor, the Trustees named
therein and to Holders from time to time of the Trust Securities issued pursuant
thereto, shall have the meanings assigned to them in the Indenture or the Trust
Agreement, as the case may be.
3
<PAGE>
EXHIBIT 4.7
================================================================================
PREMIER CAPITAL TRUST I
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
PREMIER BANCSHARES, INC., AS DEPOSITOR,
STATE STREET BANK AND TRUST COMPANY, AS PROPERTY TRUSTEE,
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF NOVEMBER 13, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINED TERMS
SECTION 1.1 Definitions.......................................................... 1
ARTICLE II ESTABLISHMENT OF THE TRUST
SECTION 2.1 Name................................................................. 10
SECTION 2.2 Office of the Delaware Trustee, Principal Place of Business.......... 11
SECTION 2.3 Initial Contribution of Trust Property; Organizational Expenses...... 11
SECTION 2.4 Issuance of the Preferred Securities................................. 11
SECTION 2.5 Issuance of the Common Securities; Subscription and
Purchase of Debentures............................................... 11
SECTION 2.6 Declaration of Trust................................................. 12
SECTION 2.7 Authorization to Enter Into Certain Transactions..................... 12
SECTION 2.8 Assets of Trust...................................................... 16
SECTION 2.9 Title to Trust Property.............................................. 16
ARTICLE III PAYMENT ACCOUNT
SECTION 3.1 Payment Account...................................................... 16
ARTICLE IV DISTRIBUTIONS; REDEMPTION
SECTION 4.1 Distributions........................................................ 17
SECTION 4.2 Redemption........................................................... 18
SECTION 4.3 Subordination of Common Securities................................... 19
SECTION 4.4 Payment Procedures................................................... 20
SECTION 4.5 Tax Returns and Reports.............................................. 20
SECTION 4.6 Payment of Taxes, Duties, Etc. of the Trust.......................... 21
SECTION 4.7 Payments Under Indenture............................................. 21
ARTICLE V TRUST SECURITIES CERTIFICATES
SECTION 5.1 Initial Ownership.................................................... 21
SECTION 5.2 The Trust Securities Certificates.................................... 21
SECTION 5.3 Execution and Delivery of Trust Securities Certificates.............. 22
SECTION 5.4 Global Preferred Security............................................ 22
SECTION 5.6 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates... 25
SECTION 5.7 Persons Deemed Security Holders...................................... 25
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Page
----
SECTION 5.8 Access to List of Securityholders' Names and Addresses............. 25
SECTION 5.9 Maintenance of Office or Agency.................................... 25
SECTION 5.10 Appointment of Paying Agent........................................ 26
SECTION 5.11 Ownership of Common Securities by Depositor........................ 26
SECTION 5.12 Notices to Clearing Agency......................................... 27
SECTION 5.13 Rights of Securityholders.......................................... 27
ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 Limitations on Voting Rights....................................... 28
SECTION 6.2 Notice of Meetings................................................. 29
SECTION 6.3 Meetings of Preferred Securityholders.............................. 29
SECTION 6.4 Voting Rights...................................................... 30
SECTION 6.5 Proxies, Etc....................................................... 30
SECTION 6.6 Securityholder Action by Written Consent........................... 30
SECTION 6.7 Record Date for Voting and Other Purposes.......................... 30
SECTION 6.8 Acts of Securityholders............................................ 30
SECTION 6.9 Inspection of Records.............................................. 31
ARTICLE VII REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Representations and Warranties of the Bank and the Property
Trustee............................................................ 32
SECTION 7.2 Representations and Warranties of the Delaware Bank and the
Delaware Trustee................................................... 33
SECTION 7.3 Representations and Warranties of Depositor........................ 34
ARTICLE VIII TRUSTEES
SECTION 8.1 Certain Duties and Responsibilities................................ 34
SECTION 8.2 Certain Notices.................................................... 36
SECTION 8.3 Certain Rights of Property Trustee................................. 36
SECTION 8.4 Not Responsible for Recitals or Issuance of Securities............. 38
SECTION 8.5 May Hold Securities................................................ 38
SECTION 8.6 Compensation; Indemnity; Fees...................................... 39
SECTION 8.7 Corporate Property Trustee Required; Eligibility of Trustees....... 39
SECTION 8.8 Conflicting Interests.............................................. 40
SECTION 8.9 Co-Trustees and Separate Trustee................................... 40
SECTION 8.10 Resignation and Removal; Appointment of Successor.................. 41
SECTION 8.11 Acceptance of Appointment by Successor............................. 43
SECTION 8.12 Merger, Conversion, Consolidation or Succession to Business........ 43
SECTION 8.13 Preferential Collection of Claims Against Depositor or Trust....... 44
SECTION 8.14 Reports by Property Trustee........................................ 44
</TABLE>
ii
<PAGE>
<TABLE>
Page
----
<S> <C>
SECTION 8.15 Reports to the Property Trustee.................................... 44
SECTION 8.16 Evidence of Compliance with Conditions Precedent................... 45
SECTION 8.17 Number of Trustees................................................. 45
SECTION 8.18 Delegation of Power................................................ 45
SECTION 8.19 Voting............................................................. 46
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1 Termination Upon Expiration Date................................... 46
SECTION 9.2 Early Termination.................................................. 46
SECTION 9.3 Termination........................................................ 46
SECTION 9.4 Liquidation........................................................ 47
SECTION 9.5 Mergers, Consolidations, Amalgamations or Replacements of
the Trust.......................................................... 48
ARTICLE X MISCELLANEOUS PROVISIONS
SECTION 10.1 Limitation of Rights of Securityholders............................ 49
SECTION 10.2 Amendment.......................................................... 49
SECTION 10.3 Separability....................................................... 50
SECTION 10.4 Governing Law...................................................... 51
SECTION 10.5 Payments Due on Non-Business Day................................... 51
SECTION 10.6 Successors......................................................... 51
SECTION 10.7 Headings........................................................... 51
SECTION 10.8 Reports, Notices and Demands....................................... 51
SECTION 10.9 Agreement Not to Petition.......................................... 52
SECTION 10.10 Trust Indenture Act; Conflict with Trust Indenture Act............. 52
SECTION 10.11 Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.......................................................... 53
EXHIBITS
- --------
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Expense Agreement
Exhibit D Form of Preferred Securities Certificate
</TABLE>
iii
<PAGE>
CROSS-REFERENCE TABLE
Section of Trust Indenture Act
of 1939, as amended Section of Trust Agreement
- ------------------- --------------------------
310(a)(1)...............................................................8.7
310(a)(2)...............................................................8.7
310(a)(3)...............................................................8.7
310(a)(4).........................................................2.7(a)(ii)
310(b)..................................................................8.8
311(a).................................................................8.13
311(b).................................................................8.13
312(a)..................................................................5.7
312(b)..................................................................5.7
312(c)..................................................................5.7
313(a)..............................................................8.14(a)
313(a)(4)...........................................................8.14(b)
313(b)..............................................................8.14(b)
313(c).................................................................10.8
313(d)..............................................................8.14(c)
314(a).................................................................8.15
314(b).......................................................Not Applicable
314(c).................................................................8.16
314(c)(2)..............................................................8.16
314(c)(3)....................................................Not Applicable
314(d).......................................................Not Applicable
314(e)............................................................1.1,.8.16
315(a).......................................................8.1(a),.8.3(a)
315(b)............................................................8.2,.10.8
315(c)...............................................................8.1(a)
315(d).............................................................8.1,.8.3
316(a)(2)....................................................Not Applicable
316(b).......................................................Not Applicable
316(c)..................................................................6.7
317(a)(1)....................................................Not Applicable
317(a)(2)....................................................Not Applicable
317(b)..................................................................5.9
318(a)................................................................10.10
Note: This Cross-Reference Table does not constitute part of this Agreement and
shall not affect the interpretation of any of its terms or provisions.
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 13, 1997,
among (i) PREMIER BANCSHARES, INC., a Georgia corporation (including any
successors or assigns, the "Depositor"), (ii) STATE STREET BANK AND TRUST
COMPANY, a Massachusetts banking corporation duly organized and existing under
the laws of the State of Massachusetts, as property trustee (the "Property
Trustee" and, in its separate corporate capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) WILMINGTON TRUST COMPANY, a Delaware
banking corporation duly organized and existing under the laws of the State of
Delaware, as Delaware trustee (the "Delaware Trustee," and, in its separate
corporate capacity and not in its capacity as Delaware Trustee, the "Delaware
Bank") (iv) DARRELL D. PITTARD, an individual, and ROBERT C. OLIVER, an
individual, each of whose address is c/o Company (each an "Administrative
Trustee" and collectively the "Administrative Trustees") (the Property Trustee,
the Delaware Trustee and the Administrative Trustees referred to collectively as
the "Trustees"), and (v) the several Holders (as hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee and
the Administrative Trustees desire to duly declare and establish a business
trust pursuant to the Delaware Business Trust Act to provide for, among other
things, (i) the issuance of the Common Securities (as defined herein) by the
Trust (as defined herein) to the Depositor; (ii) the issuance and sale of the
Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein); (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures (as
defined herein); and (iv) the appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders (as defined herein),
hereby agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1 DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
<PAGE>
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of additional interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of Darrell D. Pittard and Robert C.
Oliver individually in his capacity as Administrative Trustee of the Trust
formed and continued hereunder and not in his individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with the power to vote by the specified Person; (c) any
Person directly or indirectly controlling, controlled by, or under common
control with the specified Person; (d) a partnership in which the specified
Person is a general partner; (e) any officer or director of the specified
Person; and (f) if the specified Person is an individual, any entity of which
the specified Person is an officer, director or general partner.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security or beneficial interest
therein, the rules and procedures of the Depositary for such Preferred Security,
in each case to the extent applicable to such transaction and as in effect from
time to time.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking liquidation or reorganization of or in respect
of such Person under the United States Bankruptcy Code of 1978, as amended, or
any other similar applicable federal or state law, and the continuance of any
such decree or order unvacated and unstayed for a period of 90 days; or the
commencement
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of an involuntary case under the United States Bankruptcy Code of 1978, as
amended, in respect of such Person, which shall continue undismissed for a
period of 90 days or entry of an order for relief in such case; or the entry of
a decree or order of a court having jurisdiction in the premises for the
appointment on the ground of insolvency or bankruptcy of a receiver, custodian,
liquidator, trustee or assignee in bankruptcy or insolvency of such Person or of
its property, or for the winding up or liquidation of its affairs, and such
decree or order shall have remained in force unvacated and unstayed for a period
of 90 days; or
(b) the institution by such Person of proceedings to be adjudicated a
voluntary bankrupt, or the consent by such Person to the filing of a bankruptcy
proceeding against it, or the filing by such Person of a petition or answer or
consent seeking liquidation or reorganization under the United States Bankruptcy
Code of 1978, as amended, or other similar applicable Federal or State law, or
the consent by such Person to the filing of any such petition or to the
appointment on the ground of insolvency or bankruptcy of a receiver or custodian
or liquidator or trustee or assignee in bankruptcy or insolvency of such Person
or of its property, or if such Person shall make a general assignment for the
benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the
Secretary of the Depositor to have been duly adopted by the Depositor's Board of
Directors, or such committee of the Board of Directors or officers of the
Depositor to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day on
which banking institutions in Atlanta, Georgia are authorized or required by
law, executive order or regulation to remain closed, or a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Capital Event" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters (which may be counsel to the Company) that the
Company cannot, or within 90 days after the date of the Opinion of such Counsel,
will not be permitted by the applicable regulatory authorities, due to a change
in law, regulation, policy or guideline or interpretation or application of law
or regulation, policy or guideline, to account for the Preferred Securities as
Tier 1 capital under the capital guidelines or policies of the Federal Reserve.
"Certificate Depositary Agreement" means the agreement among the Trust,
the Depositor and the Depository Trust Company ("DTC"), as the initial Clearing
Agency, dated as of the Closing Date, as the same may be amended and
supplemented from time to time.
"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
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"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. DTC
shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute, in each case as amended from time to time.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, 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 Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached hereto as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $25.00 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Company" means Premier Bancshares, Inc.
"Corporate Trust Office" means the office at which, at any particular
time, the corporate trust business of the Property Trustee or the Debenture
Trustee, as the case may be, shall be principally administered, which office at
the date hereof, in each such case, is located at Two International Place,
Boston, Massachusetts 02110-2804.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in Section 1.1 of
the Indenture.
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"Debenture Trustee" means State Street Bank and Trust Company, a
Massachusetts banking corporation organized under the laws of the State of
Massachusetts and any successor thereto, as trustee under the Indenture.
"Debentures" means the $25,773,196 (or $29,639,175 if the underwriters
purchase the Option Securities), aggregate principal amount of the Depositor's
___% Subordinated Debentures due December 31, 2027, issued pursuant to the
Indenture.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code Sections 3801 et seq. as it may be amended from
time to time.
"Delaware Trustee" means the commercial bank or trust company identified
as the "Delaware Trustee" in the Preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositary" means the Depository Trust Company or any successor thereto.
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
"DTC" means the Depository Trust Company.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
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(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance of which or the breach of
which is dealt with in clause (b) or (c), above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or Trustees by the
Holders of at least 25% in aggregate liquidation preference of the Outstanding
Preferred Securities 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
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extended Interest Payment Period" has the meaning specified in Section
4.1 of the Indenture.
"Global Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4.
"Guarantee" means the Preferred Securities Guarantee Agreement executed
and delivered by the Depositor and State Street Bank and Trust Company, as
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Indenture, dated as of November 13, 1997, between
the Depositor and the Debenture Trustee, as trustee, as amended or supplemented
from time to time.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
"Investment Company Event" means the receipt by the Trust of an Opinion
of Counsel, by a law firm experienced in such matters, to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any
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legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), the Trust is or shall be considered an "investment company"
that is required to be registered under the Investment Company Act, which Change
in 1940 Act Law becomes effective on or after the date of original issuance of
the Preferred Securities under this Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture and
the proceeds of which shall be used to pay the Redemption Price of such Trust
Securities; and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a termination or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed. Each
Debenture distributed pursuant to clause (b) above shall carry with it
accumulated interest in an amount equal to the accumulated and unpaid interest
then due on such Debentures.
"Liquidation Amount" means the stated amount of $25.00 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Officers' Certificate" means a certificate signed by the President or a
Vice President and by the Treasurer or the Controller or the Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 8.16 shall be the
principal executive, financial or accounting officer of the Depositor. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
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(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of any thereof, and who shall be reasonably
acceptable to the Property Trustee.
"Option Closing Date" shall have the meaning provided in the Underwriting
Agreement.
"Option Securities" means an aggregate Liquidation Amount of $3,750,000
of the Trust's ____% preferred securities, issuable to the Underwriters, at its
option, exercisable within 30 days after the date of the Prospectus, solely to
cover over-allotments, if any.
"Outstanding", when used with respect to Preferred Securities, means, as
of the date of determination, all Preferred Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities; provided that, if
such Preferred Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 5.4 and 5.5; provided, however, that in determining whether
the Holders of the requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Preferred Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded; and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Global Preferred
Securities as reflected in the records of the Clearing Agency or, if a Clearing
Agency Participant is not the Owner, then as reflected in the records of a
Person maintaining an account with such Clearing Agency, directly or indirectly,
in accordance with the rules of such Clearing Agency.
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"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Debentures shall be held and from which the Property Trustee shall make
payments to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25.00 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company identified
as the "Property Trustee," in the Preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
shall be deemed to be a beneficial owner within the meaning of the Delaware
Business Trust Act.
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
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"Trust Agreement" means this Trust Agreement, as the same may be
modified, amended or supplemented in accordance with the applicable provisions
hereof, including all exhibits hereto, including, for all purposes of this Trust
Agreement and any such modification, amendment or supplement, the provisions of
the Trust Indenture Act that are deemed to be a part of and govern this Trust
Agreement and any such modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939, as amended, is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures; (b) the rights of the Property
Trustee under the Guarantee; (c) any cash on deposit in, or owing to, the
Payment Account; and (d) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificate or the Global Preferred Securities Certificate.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
November 10, 1997, among the Trust, the Depositor and the Underwriters named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SECTION 2.1 NAME.
The Trust created and continued hereby shall be known as "Premier Capital
Trust I," as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on behalf
of the Trust and sue and be sued.
SECTION 2.2 OFFICE OF THE DELAWARE TRUSTEE, PRINCIPAL PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is c/o
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attn: Corporate Trust Administration, or such
other address in the State of Delaware as the Delaware
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Trustee may designate by written notice to the Securityholders and the
Depositor. The principal executive office of the Trust is c/o Premier
Bancshares, Inc., 2180 Atlanta Plaza, 950 East Paces Ferry Road, Atlanta,
Georgia 30326.
SECTION 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES.
The Trustees acknowledge receipt in trust from the Depositor the sum of
$10.00, which constitutes the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4 ISSUANCE OF THE PREFERRED SECURITIES.
Contemporaneously with the execution and delivery of this Trust
Agreement, (a) the Depositor and an Administrative Trustee, on behalf of the
Trust shall execute and deliver the Underwriting Agreement, and (b) an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver in accordance with the Underwriting Agreement, the
Preferred Securities in registered global form (the "Global Preferred
Securities") in an aggregate amount of 1,000,000 Preferred Securities having an
aggregate Liquidation Amount of $25 million against receipt of the aggregate
purchase price of such Preferred Securities of $25,000,000, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee. If the
underwriters purchase the Option Securities and there is an Option Closing Date,
then an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver in accordance with the Underwriting
Agreement, the Global Preferred Securities in registered, global form in an
aggregate amount of up to 1,150,000 Preferred Securities having an aggregate
Liquidation Amount of up to $3,750,000 against receipt of the aggregate purchase
price of such Preferred Securities of $3,750,000, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF
DEBENTURES.
(a) Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
Common Securities having an aggregate Liquidation Amount of $773,196 against
payment by the Depositor of such amount. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Debentures, registered in the name of the Property Trustee on
behalf of the Trust and having an aggregate principal amount equal to
$25,773,196 and, in satisfaction of the purchase price for such Debentures, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum
of $25,773,196.
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(b) If the underwriters purchase the Option Securities and there is an
Option Closing Date, then an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 5.2 and deliver to the Depositor,
Common Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of Common Securities having an aggregate Liquidation Amount of
up to $889,175 against payment by the Depositor of such amount.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor, Debentures, registered in
the name of the Trust and having an aggregate principal amount of up to
$889,175, and, in satisfaction of the purchase price of such Debentures, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum
of $889,175.
SECTION 2.6 DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures; and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it shall hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Delaware Business Trust Act.
SECTION 2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section 2.7 and Article VIII, and in accordance with the
following provisions (i) and (ii), the Administrative Trustees shall have the
authority to enter into all transactions and agreements determined by the
Administrative Trustees to be appropriate in exercising the authority, express
or implied, otherwise granted to the Administrative Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
(i) As among the Trustees, each Administrative Trustee, acting singly
or jointly, shall have the power and authority to act on behalf of the Trust
with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and
such other
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agreements or documents as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this
Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred Securities upon the
American Stock Exchange, Inc. or such securities exchange or
exchanges as shall be determined by the Depositor and the
registration of the Preferred Securities under the Exchange
Act, and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this
Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(G) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(H) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory
business trust under the laws of the State of Delaware and of
each other jurisdiction in which such existence is necessary
to protect the limited liability of the Holders of the
Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created; and
(I) the taking of any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on
any particular Securityholder).
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(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, the taking of any action incidental
to the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any
particular Securityholder);
(J) registering transfers of the Trust Securities in accordance
with this Trust Agreement; and
(K) except as otherwise provided in this Section 2.7(a)(ii), the
Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set
forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transactions except as expressly
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provided herein or contemplated hereby. In particular, the Trustees shall not
(i) acquire any investments or engage in any activities not authorized by this
Trust Agreement; (ii) sell, assign, transfer, exchange, mortgage, pledge, set-
off or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein; (iii) take
any action that would cause the Trust to fail or cease to qualify as a "grantor
trust" for United States federal income tax purposes; (iv) incur any
indebtedness for borrowed money or issue any other debt; or (v) take or consent
to any action that would result in the placement of a Lien on any of the Trust
Property. The Administrative Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust Property adverse
to the interest of the Trust or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities and the Debentures,
including any amendments thereto;
(ii) the determination of the states in which to take appropriate
action to qualify or, register for sale all or part of the Preferred Securities
and to do any and all such acts, other than actions which must be taken by or on
behalf of the Trust, and advise the Trustees of actions they must take on behalf
of the Trust, and prepare for execution and filing any documents to be executed
and filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the American Stock Exchange, Inc. or
other organizations for listing upon notice of issuance of any Preferred
Securities and to file or cause an Administrative Trustee to file thereafter
with such exchange such notifications and documents as may be necessary from
time to time;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form 8-A
relating to the registration of the Preferred Securities under Section 12(b) or
12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
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(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust shall not be deemed to be an "investment
company" required to be registered under the Investment Company Act, shall be
classified as a "grantor trust" and not as an association taxable as a
corporation for United States federal income tax purposes and so that the
Debentures shall be treated as indebtedness of the Depositor for United States
federal income tax purposes. In this connection, subject to Section 10.2, the
Depositor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law or this Trust Agreement, that each of the
Depositor and the Administrative Trustees determines in their discretion to be
necessary or desirable for such purposes.
SECTION 2.8 ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9 TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders in accordance with
this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1 DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and shall
accumulate whether or not there are funds of the Trust available for the payment
of Distributions. Distributions shall accumulate from November ___, 1997, and,
except during any Extended Interest Payment Period with respect to the
Debentures, shall be payable quarterly in arrears on the last calendar day of
March, June, September and December of each year, commencing on December 31,
1997. If any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution shall be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), in each case with the same force
and effect as if made on such date (each date on which distributions are payable
in accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and, as a practical matter, the Distributions on the Trust
Securities shall be payable at a rate of __% per annum of the Liquidation Amount
of the Trust Securities. The amount of Distributions payable for any full
period shall be computed on the basis of a 360-day year of twelve 30-day months.
The amount of Distributions for any partial period shall be computed on the
basis of the number of days elapsed in a 360-day year of twelve 30 day months.
During any Extended Interest Payment Period with respect to the Debentures,
Distributions on the Preferred Securities shall be deferred for a period equal
to the Extended Interest Payment Period. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee solely from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
immediately available in the Payment Account for the payment of such
Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be the 15th day of the month in which the Distribution is payable.
SECTION 4.2 REDEMPTION.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust shall be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Securities Register. The Property
Trustee shall have no responsibility for the accuracy of any CUSIP number
contained in such notice. All notices of redemption shall state:
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(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Trust Security to be redeemed and
that Distributions thereon shall cease to accumulate on and
after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has immediately available funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, Atlanta, Georgia time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee, subject to
Section 4.2(c), shall deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and shall give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the record holders
thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Register for the
Trust Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption shall cease, except the right
of such Securityholders to receive the Redemption Price and any Distribution
payable on or prior to the Redemption Date, but without interest, and such
Securities shall cease to be Outstanding. In the event that any date on which
any Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day falls in the next calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date. In the event
that payment of the Redemption Price in respect of any Trust Securities called
for redemption is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities shall continue to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust
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Securities to the date such Redemption Price is actually paid, in which case the
actual payment date shall be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be made
to the record holders thereof as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be the date 15 days
prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the outstanding Preferred Securities not previously called
for redemption, by such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $25.00 or an integral multiple of
$25.00 in excess thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25.00. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
SECTION 4.3 SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(f), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities then called for redemption, shall have been made or
provided for, and all funds immediately available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due and payable.
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(b) In the case of the occurrence of any Event of Default resulting from
a Debenture Event of Default, the record holder of Common Securities shall be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities shall have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities shall have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
record holders of the Preferred Securities and not the record holder of the
Common Securities, and only the Holders of the Preferred Securities shall have
the right to direct the Property Trustee to act on their behalf.
SECTION 4.4 PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
SECTION 4.5 TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust; and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service form required to be
furnished to such Securityholder or the information required to be provided on
such form. The Administrative Trustees shall provide the Depositor with a copy
of all such returns and reports promptly after such filing or furnishing. The
Property Trustee shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Securityholders under the Trust Securities.
SECTION 4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Interest (as defined in
Section 1.1 of the Indenture), the Property Trustee, at the direction of an
Administrative Trustee or the Depositor, shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed
on the Trust by the United States or any other taxing authority.
SECTION 4.7 PAYMENTS UNDER INDENTURE.
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Any amount payable hereunder to any record holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received under the Indenture pursuant to Section ___ hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1 INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2 THE TRUST SECURITIES CERTIFICATES.
(a) The Trust Securities Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of at least one Administrator except as
provided in Section 5.3. Trust Securities Certificates bearing the signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be validly issued and
entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificates in such transferee's name
pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities Certificates shall
be issued in the form of one or more fully registered Global Preferred
Securities Certificates which will be deposited with or on behalf of the
Depositary and registered in the name of the Depositary's nominee. Unless and
until it is exchangeable in whole or in part for the Preferred Securities in
definitive form, a global security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by the Depositary or any such
nominee to a successor of such Depositary or a nominee of such successor.
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
On the Closing Date and on the Option Closing Date, the Administrative
Trustee shall cause Trust Securities Certificates, in an aggregate Liquidation
Amount as provided in Sections 2.4 and 2.5, to be executed on behalf of the
Trust by at least one of the Administrative Trustees and delivered to the
Property Trustee and upon such delivery the Property Trustee shall authenticate
such Trust
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Securities Certificates and deliver such Trust Securities Certificates upon the
written order of the Trust in authorized denominations.
SECTION 5.4 GLOBAL PREFERRED SECURITY.
(a) Any Global Preferred Security issued under this Trust Agreement shall
be registered in the name of the nominee of the Clearing Agency and delivered to
such custodian therefor, and such Global Preferred Security shall constitute a
single Preferred Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, a Global
Preferred Security may not be exchanged in whole or in part for Preferred
Securities registered, and no transfer of the Global Preferred Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Preferred Security, or its nominee thereof unless (i)
such Clearing Agency advises the Property Trustee in writing that such Clearing
Agency is no longer willing or able to properly discharge its responsibilities
as Clearing Agency with respect to such Global Preferred Security, and the
Depositor is unable to locate a qualified successor within ninety days of
receipt of such notice from the Depositary, (ii) the Trust at its option advises
the Depositary in writing that it elects to terminate the book-entry system
through the Clearing Agency, or (iii) there shall have occurred and be
continuing an Event of Default.
(c) If a Preferred Security is to be exchanged in whole or in part for a
beneficial interest in a Global Preferred Security, then either (i) such Global
Preferred Security shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the Liquidation Amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the Liquidation Amount of such other
Preferred Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the
Security Register, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Preferred Security by the Clearing Agency,
accompanied by registration instructions, the Property Trustee shall, subject to
Section 5.4(b) and as otherwise provided in this Article V, authenticate and
deliver any Preferred Securities issuable in exchange for such Global Preferred
Security (or any portion thereof) in accordance with the instructions of the
Clearing Agency. The Property Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Preferred Security or any portion thereof, whether pursuant to this Article V or
Article IV or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Preferred Security, unless such Global Preferred Security
is registered in the name of a Person other than the Clearing Agency for such
Global Preferred Security or a nominee thereof.
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(e) The Clearing Agency or its nominee, as the registered owner of the
Global Preferred Security, shall be considered the Holder of the Preferred
Security represented by such Global Preferred Security for all purposes under
this Trust Agreement and the Preferred Securities, and owners of beneficial
interests in such Global Preferred Security shall hold such interests pursuant
to the Applicable Procedures and, except as otherwise provided herein, shall not
be entitled to receive physical delivery of any such Preferred Securities in
definitive form and shall not be considered the Holders thereof under this Trust
Agreement. Accordingly, any such owner's beneficial interest in the Global
Preferred Security shall be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or its
nominee. Neither the Property Trustee, the Securities Registrar nor the
Depositor shall have any liability in respect of any transfers effected by the
Clearing Agency.
(f) The rights of owners of beneficial interests in a Global Preferred
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such owners and the
Clearing Agency.
SECTION 5.5 REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY; CERTAIN
TRANSFERS AND EXCHANGES; PREFERRED SECURITIES CERTIFICATES.
(a) The Property Trustee shall keep or cause to be kept at its Corporate
Trust Office a register or registers for the purpose of registering Preferred
Securities Certificates and transfers and exchanges of Preferred Securities
Certificates in which the registrar and transfer agent with respect to the
Preferred Securities (the "Securities Register"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided.
Such register is herein sometimes referred to as the "Securities Registrar."
The Property Trustee is hereby appointed "Securities Registrar" for the purpose
of registering Preferred Securities and transfers of Preferred Securities as
herein provided.
Upon surrender for registration of transfer of any Preferred Security at
the offices or agencies of the Property Trustee designated for that purpose, the
Depositor shall execute and authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities of
the same series of any authorized denominations of like tenor and aggregate
principal amount and bearing such legends as may be required by this Trust
Agreement.
At the option of the Holder, Preferred Securities may be exchanged for
other Preferred Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such legends as may be required by this
Trust Agreement, upon surrender of the Preferred Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Property Trustee shall execute and authenticate and deliver the Preferred
Securities that the Holder making the exchange is entitled to receive.
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All Preferred Securities issued upon any transfer or exchange of
Preferred Securities shall be the valid obligations of the Trust, evidencing the
same debt, and entitled to the same benefits under this Trust Agreement, as the
Preferred Securities surrendered upon such transfer or exchange.
Every Preferred Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange
of Preferred Securities, but the Property Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities.
Neither the Trust nor the Property Trustee shall be required, pursuant to
the provisions of this Section, (i) to issue, register the transfer of or
exchange any Preferred Security during a period beginning at the opening of
business 15 days before the day of selection for redemption of Preferred
Securities pursuant to Article IV and ending at the close of business on the day
of mailing of the notice of redemption, or (ii) to register the transfer of or
exchange any Preferred Security so selected for redemption in whole or in part,
except, in the case of any such Preferred Security to be redeemed in part, any
portion thereof not to be redeemed.
(b) Trust Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Trust Agreement. Any
transfer or purported transfer of any Trust Security not made in accordance with
this Trust Agreement shall be null and void.
(i) A Trust Security that is not a Global Preferred Security may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Trust Security that is not a Global Security as provided in
Section 5.5(a).
(ii) Subject to this Section 5.5, Preferred Securities shall be freely
transferable.
(iii) A beneficial interest in a Global Preferred Security may be
exchanged for a Preferred Security that is not a Global Preferred Security
as provided in Section 5.4.
SECTION 5.6 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES.
If (a) any mutilated Trust Securities certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate; and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them,
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on behalf of the Trust shall execute and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor
and denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, corresponding to that evidenced by the lost, stolen or destroyed Trust
Certificate, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.7 PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Securities Registrar or the Depositor shall treat the
Person in whose name any Trust Securities are issued as the owner of such Trust
Securities for the purpose of receiving Distributions and for all other purposes
whatsoever, and none of the Trustees, the Administrative Trustees, the
Securities Registrar nor the Depositor shall be bound by any notice to the
contrary.
SECTION 5.8 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, or the Administrative Trustees accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 5.9 MAINTENANCE OF OFFICE OR AGENCY.
The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates
__________________ ______________ Attention:__________________________________,
as its corporate trust office for such purposes. The Property Trustee shall give
prompt written notice to the Depositor, the Administrative Trustees and to the
Holders of any change in the location of the Securities Register or any such
office or agency.
SECTION 5.10 APPOINTMENT OF PAYING AGENT.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Property Trustee may
revoke such power and remove any Paying Agent in its sole discretion. The
Paying Agent shall
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initially be the Property Trustee. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the event
that the Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Property
Trustee shall appoint a successor (which shall be a bank or trust company) that
is reasonably acceptable to the Administrative Trustees to act as Paying Agent.
Such successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees shall execute and deliver to the Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the Holders
in trust for the benefit of the Holders entitled thereto until such sums shall
be paid to such Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 shall apply to the Property Trustee also in its
role as Paying Agent, for so long as the Property Trustee shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
SECTION 5.11 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
At each time of delivery, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities except (i) in
connection with a consolidation or merger of the Depositor into another
corporation or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.1 of the Indenture, or (ii) a transfer to an Affiliate of the
Depositor in compliance with applicable law (including the Securities Act and
applicable state securities and blue sky laws). To the fullest extent permitted
by law, any attempted transfer of the Common Securities shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO A SUCCESSOR IN INTEREST TO THE DEPOSITOR OR AN AFFILIATE OF THE
DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT."
SECTION 5.12 NOTICES TO CLEARING AGENCY.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Securities Certificate, the Trustees shall
give all such notices and communications specified herein to be given to the
Clearing Agency, and shall have no obligations to the Owners.
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SECTION 5.13 RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Holders of the Preferred Securities against payment of the purchase
price therefor, the Preferred Securities shall be fully paid and nonassessable
interests in the Trust. The Holders of the Preferred Securities, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon
a Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the Indenture.
(c) For so long as any Preferred Securities remain outstanding, if, upon
a Debenture Event of Default arising from the failure to pay interest or
principal on the Debentures, the Holders of any Preferred Securities then
Outstanding shall, to the fullest extent permitted by law, have the right to
directly institute proceedings for enforcement of payment to such Holders of
principal of or interest on the Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 6.1, in Sections 5.13, 8.10 and
10.2 and in the Indenture and as otherwise required by law, no record holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the
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Debenture Trustee, or executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures; (ii) waive any past default which is
waivable under Article VII of the Indenture; (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable; or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a majority in
Liquidation Amount of all Outstanding Preferred Securities; provided, however,
that where a consent under the Indenture would require the consent of each
Holder of Outstanding Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior written consent of each holder
of Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Outstanding Preferred
Securities, except by a subsequent vote of the Holders of the Outstanding
Preferred Securities. The Property Trustee shall notify each Holder of the
Outstanding Preferred Securities of any notice of default received from the
Debenture Trustee with respect to the Debentures. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities, prior to taking
any of the foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust shall continue to be classified as a grantor trust and not
as an association taxable as a corporation for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences, privileges or special rights of
the Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise; or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class shall be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least 66 2/3 in Liquidation Amount
of the Outstanding Preferred Securities. No amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would cease to be
classified as a grantor trust or would be classified as an association taxable
as a corporation for United States federal income tax purposes.
(d) If any Distributions payable on the Preferred Securities are in
arrears for six quarterly periods, the Holders of the Preferred Securities,
voting separately, as a class with any other Holders having similar voting
rights, will be entitled to elect two directors to the Board of Directors of the
Depositor at the next special or annual meeting of the shareholders of
Depositor.
SECTION 6.2 NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be
so considered
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whether or not stated in the notice of the meeting. Any adjourned meeting may
be held as adjourned without further notice.
SECTION 6.3 MEETINGS OF PREFERRED SECURITYHOLDERS.
(a) No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter in respect of which Preferred Securityholders are entitled to
vote upon the written request of the Preferred Securityholders of 25% of the
Outstanding Preferred Securities (based upon their aggregate Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which the Preferred Securityholders are entitled to vote.
(b) Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their aggregate Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Preferred Securityholders of record present,
either in person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 6.4 VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $25.00 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
SECTION 6.5 PROXIES, ETC.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy, shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
When Trust Securities are held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Trust Securities,
but if more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such Trust Securities.
A proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and, the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
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SECTION 6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon their aggregate Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their aggregate Liquidation
Amount).
SECTION 6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of Distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8 ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Securityholders or owners in person or by an agent duly appointed in writing;
and, except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Securityholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.1)
conclusive in favor of the Trustees, if made in the manner provided in this
Section 6.8.
(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 any Trustee receiving the same deems sufficient.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
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(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind every
future Securityholder of the same Trust Security and the Securityholder of every
Trust 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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
(f) A Securityholder may institute a legal proceeding directly against
the Depositor under the Guarantee to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Guarantee Trustee (as
defined in the Guarantee), the Trust or any Person.
SECTION 6.9 INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1 REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE PROPERTY
TRUSTEE.
The Bank and the Property Trustee, each severally on behalf of and as to
itself, as of the date hereof, and each Successor Property Trustee at the time
of the Successor Property Trustee's acceptance of its appointment as Property
Trustee hereunder (the term "Bank" being used to refer to such Successor
Property Trustee in its separate corporate capacity) hereby represents and
warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a banking corporation duly organized, validly existing
and in good standing under the laws of the State of Massachusetts;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and constitutes the valid and legally binding agreement
of the Property Trustee
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enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate or
other action on the part of the Property Trustee and does not require any
approval of stockholders of the Bank and such execution, delivery and
performance shall not (i) violate the Bank's charter or by-laws; (ii) violate
any provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Property Trustee or the Bank is a party or by which it is bound; or
(iii) violate any law, governmental rule or regulation of the United States or
the State of Massachusetts, as the case may be, governing the banking or trust
powers of the Bank or the Property Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing federal law governing the banking or trust powers of the Bank or the
Property Trustee, as the case may be, under the laws of the United States or the
State of Massachusetts; and
(f) there are no proceedings pending or, to the best of the Property
Trustee's knowledge, threatened against or affecting the Bank or the Property
Trustee in any court or before any governmental authority, agency or arbitration
board or tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and authority of
the Property Trustee to enter into or perform its obligations as one of the
Trustees under this Trust Agreement.
SECTION 7.2 REPRESENTATIONS AND WARRANTIES OF THE DELAWARE BANK AND THE
DELAWARE TRUSTEE.
The Delaware Bank and the Delaware Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each Successor Delaware Trustee at
the time of the Successor Delaware Trustee's acceptance of appointment as
Delaware Trustee hereunder (the term "Delaware Bank" being used to refer to such
Successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Bank is a Delaware banking corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
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(b) the Delaware Bank has full corporate power, authority and legal right
to execute, deliver and perform its obligations under this Trust Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and delivered
by the Delaware Trustee and constitutes the valid and legally binding agreement
of the Delaware Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement has been duly authorized by all necessary corporate or
other action on the part of the Delaware Trustee and does not require any
approval of stockholders of the Delaware Bank and such execution, delivery and
performance shall not (i) violate the Delaware Bank's charter or by-laws; (ii)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of, any Lien on
any properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Delaware Bank or the Delaware Trustee is a party or by which it is
bound; or (iii) violate any law, governmental rule or regulation of the United
States or the State of Massachusetts, as the case may be, governing the banking
or trust powers of the Delaware Bank or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Delaware Bank or the
Delaware Trustee;
(e) neither the authorization, execution or delivery by the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Delaware Trustee contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency governing the
banking or trust powers of the Delaware Bank or the Delaware Trustee, as the
case may be, under the federal laws of the United States or the laws of the
State of Delaware; and
(f) there are no proceedings pending or, to the best of the Delaware
Trustee's knowledge, threatened against or affecting the Delaware Bank or the
Delaware Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power and
authority of the Delaware Trustee to enter into or perform its obligations as
one of the Trustees under this Trust Agreement.
SECTION 7.3 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date or the
Option Closing Date, if applicable, on behalf of the Trust have been duly
authorized and, shall have been, duly and
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validly executed, issued and delivered by the Administrative Trustees pursuant
to the terms and provisions of, and in accordance with the requirements of, this
Trust Agreement and the Securityholders shall be, as of such date, entitled to
the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Bank, the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
TRUSTEES
SECTION 8.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as provided
by this Trust Agreement and, in the case of the Property Trustee, by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
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. No Administrative Trustee nor the Delaware Trustee shall be liable for its
act or omissions hereunder except as a result of its own gross negligence or
willful misconduct. The Property Trustee's liability shall be determined under
the Trust Indenture Act. Whether or not therein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 8.1. To the extent that, at law or in equity, the
Delaware Trustee or an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the Securityholders,
the Delaware Trustee or such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the Delaware Trustee
or the Administrative Trustees otherwise existing at law or in equity, are
agreed by the Depositor and the Securityholders to replace such other duties and
liabilities of the Delaware Trustee and the Administrative Trustees, as the case
may be.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it shall look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b)
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does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of judgment
made in good faith by an authorized officer of the Property Trustee, unless it
shall be proved that the Property Trustee was negligent in ascertaining the
pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in Liquidation Amount of
the Trust Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such Property in a similar manner as the
Property Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property Trustee under
this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor and
money held by the Property Trustee need not be segregated from other funds held
by it except in relation to the Payment Account maintained by the Property
Trustee pursuant to Section 3.1 and except to the extent otherwise required by
law; and
(d) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable for
the negligence, default or misconduct of the Administrative Trustees or the
Depositor.
SECTION 8.2 CERTAIN NOTICES.
(a) Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such Event of Default to the Securityholders, the Administrative Trustees and
the Depositor, unless such Event of Default shall have been cured or waived.
For purposes of this Section 8.2 the term "Event of Default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default.
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(b) The Administrative Trustees shall transmit, to the Securityholders in
the manner and to the extent provided in Section 10.8, notice of the Depositor's
election to begin or further extend an Extended Interest Payment Period on the
Debentures (unless such election shall have been revoked) within the time
specified for transmitting such notice to the holders of the Debentures pursuant
to the Indenture as originally executed.
SECTION 8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, 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) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action; or
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with other provisions contained
herein; or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within 10
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than 2 Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officer's Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
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(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement, any filing under tax or securities laws or any filing
under tax or securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel of its choice (which
counsel may be counsel to the Depositor or any of its Affiliates) and the advice
of such 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 and, in accordance with such advice, such counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall be responsible for
its own negligence or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action; (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received; and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement. No provision of
this Trust Agreement shall be deemed to impose any duty or obligation on the
Property Trustee to perform any act or acts or exercise any right, power, duty
or
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obligation conferred or imposed on it, in any jurisdiction in which it shall be
illegal, or in which the Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts, or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a duty.
SECTION 8.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The Recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
SECTION 8.5 MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6 COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation for
all services rendered by them hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (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 such Trustee's negligence, bad faith or
willful misconduct (or, in the case of the Administrative Trustees or the
Delaware Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct); and
(c) to indemnify each of the Trustees or any predecessor Trustee for, and
to hold the Trustees harmless against, any loss, damage, claims, liability,
penalty or expense, arising out of or in connection with the acceptance or
administration of this Trust Agreement, 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, except any such loss,
damage, claims, liability or penalty or expense, as may be attributable to such
Trustee's negligence, bad faith or willful misconduct for (or, in the case of
the Administrative Trustees or the Delaware Trustee, any such
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expense, disbursement or advance as may be attributable to its, his or her gross
negligence, bad faith or willful misconduct).
No Trustee may claim any Lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 8.6.
SECTION 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
8.7, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section 8.7, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware; or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.8 CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
SECTION 8.9 CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor shall have power to appoint,
and upon the written request of the Property Trustee, the Depositor shall for
such purpose join with the Property Trustee in the execution, delivery and
performance of all
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instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section 8.9. If the Depositor does not join in such appointment within 15
days after the receipt by it of a request so to do, or in case a Debenture Event
of Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section 8.9 shall either be (i) a natural person who is at
least 21 years of age and a resident of the United States; or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
(b) Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed and delivered and all
rights, powers, duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(ii) The rights, powers, duties and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such co-
trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee appointed
under this Section 8.9, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have the power to accept the
resignation of, or remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the Property Trustee,
the Depositor shall join with the Property Trustee in the execution, delivery
and performance of all instruments and agreements
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necessary or proper to effectuate such resignation or removal. A successor to
any co-trustee or separate trustee so resigned or removed may be appointed in
the manner provided in this Section 8.9.
(iv) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(v) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article VIII shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
(b) Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time with respect to the Trust Securities by giving written
notice thereof to the Securityholders. If the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the Relevant Trustee may petition, at the expense of the Depositor, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee with
respect to the Trust Securities.
(c) Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
(d) If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees with respect to the Trust Securities and the Trust, and the successor
Trustee shall comply with the applicable requirements of Section 8.11. If the
Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when a Debenture Event of Default shall have
occurred and is continuing, the Preferred Securityholders, by Act of the
Securityholders of a majority
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in Liquidation Amount of the Preferred Securities then Outstanding delivered to
the retiring Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees with respect to the Trust Securities and the Trust, and such
successor Trustee shall comply with the applicable requirements of Section 8.11.
If an Administrative Trustee shall resign, be removed or become incapable of
acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to an Administrative Trustee, shall promptly
appoint a successor Administrative Trustee or Administrative Trustees with
respect to the Trust Securities and the Trust, and such successor Administrative
Trustee or Administrative Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee with respect to the Trust
Securities shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities on behalf of himself and all others similarly situated may petition a
court of competent jurisdiction for the appointment of a Relevant Trustee with
respect to the Trust Securities.
(e) The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust office if it is the Property
Trustee.
(f) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
there are at least two of them; or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees set forth in Section 8.7).
SECTION 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Relevant Trustee
with respect to the Trust Securities and the Trust, the retiring Relevant
Trustee and each successor Relevant Trustee with respect to the Trust Securities
shall execute and deliver an instrument hereto wherein each successor Relevant
Trustee shall accept such appointment and which shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the Trust and
upon the execution and delivery of such instrument the resignation or removal of
the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust; but, on request of the Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor
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Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust Securities and the
Trust.
(b) Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the immediately preceding paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article VIII.
SECTION 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which any relevant Trustee may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
SECTION 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
SECTION 8.14 REPORTS BY PROPERTY TRUSTEE.
(a) Not later than July 15 of each year commencing with July 15, 1998,
the Property Trustee shall transmit to all Securityholders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of such December 31
with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by the
Property Trustee in the performance of its duties hereunder which it has not
previously reported and which in its opinion materially affects the Trust
Securities.
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(b) In addition the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with the American Stock Exchange, Inc.
and each national securities exchange or other organization upon which the Trust
Securities are listed, and also with the Commission and the Depositor.
SECTION 8.15 REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the Holder of all
of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the Delaware Trustee
may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this Trust
Agreement.
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SECTION 8.18 DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a); and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
SECTION 8.19 VOTING.
Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by not
less than a majority of the Administrative Trustees, unless there are only two,
in which case both must consent.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1 TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on,
December 31, 2028 (the "Expiration Date") subject to distribution of the Trust
Property in accordance with Section 9.4.
SECTION 9.2 EARLY TERMINATION.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is wholly optional and within the
discretion of the Depositor) to dissolve the Trust and distribute the Debentures
to Securityholders in exchange for the Preferred Securities in accordance with
Section 9.4;
(c) the redemption of all of the Preferred Securities in connection with
the redemption of all of the Debentures; and
(d) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction.
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SECTION 9.3 TERMINATION.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; (c) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders; and (d) the filing of a Certificate of Cancellation by the
Administrative Trustee under the Business Trust Act.
SECTION 9.4 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), or (d) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by
the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities shall no longer be deemed to be Outstanding and any Trust Securities
Certificates not surrendered for exchange shall be deemed to represent a Like
Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Debentures, or, if
Section 9.4(d) applies, receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities shall no longer be deemed to be outstanding; (ii)
certificates representing a Like Amount
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of Debentures shall be issued to holders of Trust Securities Certificates upon
surrender of such certificates to the Administrative Trustees or their agent for
exchange; (iii) the Depositor shall use its reasonable efforts to have the
Debentures listed on the American Stock Exchange or on such other securities
exchange or other organization as the Preferred Securities are then listed or
traded; (iv) any Trust Securities Certificates not so surrendered for exchange
shall be deemed to represent a Like Amount of Debentures, accruing interest at
the rate provided for in the Debentures from the last Distribution Date on which
a Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal shall be made to holders of Trust
Securities Certificates with respect to such Debentures); and (v) all rights of
Securityholders holding Trust Securities shall cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders shall be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding- up or termination, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The holder
of the Common Securities shall be entitled to receive Liquidation Distributions
upon any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred securities, except that, if a Debenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities.
SECTION 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
TRUST.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities; or (b) substitutes for the Preferred
Securities other securities having substantially the
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same terms as the Preferred Securities (the "Successor Securities) so long as
the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to distributions and payments upon liquidation, redemption
and otherwise; (ii) the Depositor expressly appoints a trustee of such successor
entity possessing substantially the same powers and duties as the Property
Trustee as the holder of the Debentures; (iii) the Successor Securities are
listed or traded, or any Successor Securities shall be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any; (iv)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect; (v) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect; and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor such successor entity shall be required
to register as an "investment company" under the Investment Company Act; and
(vi) the Depositor owns all of the Common Securities of such successor entity
and guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding
the foregoing, the Trust shall not, except with the consent of holders of 100%
in Liquidation Amount of the Preferred Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other Person or permit
any other Person to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger or replacement would cause the Trust
or the successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, (i) as provided
in Section 8.11 with respect to acceptance of appointment by a successor
Trustee; (ii) to cure any ambiguity, correct or
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supplement any provision herein or therein which may be inconsistent with any
other provision herein or therein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, that shall not be
inconsistent with the other provisions of this Trust Agreement; or (iii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust shall be classified for
United States federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust shall not be
required to register as an "investment company" under the Investment Company
Act; provided, however, that in the case of clause (ii), such action shall not
adversely affect in any material respect the interests of any Securityholder,
and any amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 6.1(c) or Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor (i) with the consent of Trust Securityholders representing not less
than a majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding; and (ii) upon receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment shall not affect the Trust's status
as a grantor trust for United States federal income tax purposes or the Trust's
exemption from status of an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date; or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an "investment company" under the Investment Company Act or to fail or
cease to be classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
49
<PAGE>
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
SECTION 10.3 SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates 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 10.4 GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF).
SECTION 10.5 PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day which is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no distribution
shall accumulate thereon for the period after such date.
SECTION 10.6 SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee(s),
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article XII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7 HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
50
<PAGE>
SECTION 10.8 REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served in writing by
deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Premier
Bancshares, Inc., 2180 Atlanta Plaza, 950 East Paces Ferry Road, Atlanta,
Georgia 30326, Attention: Darrell D. Pittard, Chairman and Chief Executive
Officer. Any notice to Preferred Securityholders shall also be given to such
owners as have, within two years preceding the giving of such notice, filed
their names and addresses with the Property Trustee for that purpose. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to State Street Bank and Trust Company,
Corporate Services Division, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Paul D. Allen, Vice President; (b) with respect
to the Delaware Trustee, to Wilmington Trust Company, Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration; and (c) with respect to the Administrative Trustees, to them at
the address above for notices to the Depositor, marked "Attention:
Administrative Trustees of Capital Trust." Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
SECTION 10.9 AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and 1 day after the Trust has been
terminated in accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code of 1978, as amended) (collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor takes action in violation of this
Section 10.9, the Property Trustee agrees, for the benefit of Securityholders,
that at the expense of the Depositor (which expense shall be paid prior to the
filing), it shall file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the Depositor has agreed
in writing not to take such action and should be stopped and precluded
therefrom. The provisions of this Section 10.9 shall survive the termination of
this Trust Agreement.
51
<PAGE>
SECTION 10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
52
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, as applicable, all as of the day and
year first above written.
PREMIER BANCSHARES, INC.
By:
---------------------------------------
Darrell D. Pittard, Chairman and Chief
Executive Officer
Attest:
- ---------------------------------
Barbara J. Burtt, Secretary
STATE STREET BANK AND TRUST
COMPANY, as Property Trustee
By:
-------------------------------------
Paul D. Allen, Vice President
Attest:
[BANK SEAL]
- ---------------------------------
Name:
----------------------------
Its:
----------------------------
WILMINGTON TRUST COMPANY, as Delaware
Trustee
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Attest:
[CORPORATE SEAL]
- ---------------------------------
Name:
----------------------------
Its:
----------------------------
53
<PAGE>
---------------------------------------------
Darrell D. Pittard, As Administrative Trustee
---------------------------------------------
Robert C. Oliver, As Administrative Trustee
54
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
PREMIER CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF PREMIER CAPITAL TRUST I (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware banking
corporation, and Darrell D. Pittard and Robert C. Oliver, each an individual, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
1. NAME. The name of the business trust formed hereby is Premier Capital
Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on October
21, 1997.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the effective date above
written.
WILMINGTON TRUST COMPANY, as Trustee
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
-------------------------------------------
Darrell D. Pittard, as Trustee
------------------------------------------
Robert C. Oliver, as Trustee
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFILIATE OF
THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT
CERTIFICATE NUMBER C-1 NUMBER OF COMMON SECURITIES ________
($_______ Aggregate Liquidation Amount)
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
PREMIER CAPITAL TRUST I
_____% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
PREMIER CAPITAL TRUST, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that PREMIER
BANCSHARES, INC. (the "Holder") is the registered owner of
_________________________ (_______) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust and designated the
Common Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). Except in accordance with Section 5.11 of the Trust Agreement (as
defined below), the Common Securities are not transferable and any attempted
transfer hereof other than in accordance thereof shall be void. The
designations, rights, privileges, restrictions, preferences, and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust dated as of November 13, 1997, as the same may be amended from time
to time (the "Trust Agreement") among Premier Bancshares, Inc., as Depositor,
State Street Bank and Trust company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee and the Holders of the Trust Securities, including
the designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder. Terms used but not
defined herein have the meaning set forth in the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 13th day of November, 1997.
PREMIER CAPITAL TRUST I
By:
---------------------------------------------
Darrell D. Pittard
Administrative Trustee
<PAGE>
COUNTERSIGNED AND REGISTERED:
STATE STREET BANK AND TRUST
COMPANY, as Securities Registrar
By:
-----------------------------
Authorized Signatory
2
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
November ___, 1997, between PREMIER BANCSHARES, INC., a Georgia corporation (the
"Company"), and PREMIER CAPITAL TRUST I, a Delaware business trust (the
"Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive Debentures from, the Company and to issue and sell
Premier Capital Trust I __% Cumulative Trust Preferred Securities (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of November __, 1997, as the same may be amended from time to
time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges shall be made in reliance
upon the execution and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
SECTION 1.1 GUARANTEE BY THE COMPANY.
Subject to the terms and conditions hereof, the Company, including in its
capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment when
and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
<PAGE>
SECTION 1.2 TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise); and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any obligation, under the
Preferred Securities Guarantee Agreement dated the date hereof by Company and
State Street Bank and Trust Company, as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 1.3 WAIVER OF NOTICE.
The Company hereby waives notice of acceptance of this Agreement and of
any obligation to which it applies or may apply, and Company hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 1.4 NO IMPAIRMENT.
The obligations, covenants, agreements and duties of the Company under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Company with respect to the happening of any of the
foregoing.
2
<PAGE>
SECTION 1.5 ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against the Company,
and the Company waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against the
Company.
ARTICLE II
SECTION 2.1 BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the Beneficiaries.
SECTION 2.2 AMENDMENT.
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3 NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answerback, if sent by telex):
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 East Paces Ferry Road
Atlanta, Georgia 30326
Facsimile No.: (404) 816-4314
Attention: Darrell D. Pittard
Premier Capital Trust I
2180 Atlanta Plaza
950 East Paces Ferry Road
Atlanta, Georgia 30326
Facsimile No.: (404) 816-4314
Attention: Darrell D. Pittard
SECTION 2.4 This agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Georgia (without regard
to conflict of laws principles).
3
<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
PREMIER BANCSHARES, INC.
By:
-----------------------------------------
Darrell D. Pittard, Chairman and
Chief Executive Officer
PREMIER CAPITAL TRUST
By:
------------------------------------------
Darrell D. Pittard, Administrative Trustee
4
<PAGE>
EXHIBIT 4.8
Certificate Number Aggregate Liquidation Amount
P-1 $25,000,000
(1,000,000 Preferred Securities)
CUSIP NO. 740469200
Certificate Evidencing Preferred Securities
of
Premier Capital Trust I
_______% Cumulative Preferred Securities
(liquidation amount $25.00 per Preferred Security)
Premier Capital Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Issuer Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of Twenty-Five Million Dollars
($25,000,000) aggregate liquidation amount of preferred securities of the Issuer
Trust representing a preferred undivided beneficial interest in the assets of
the Issuer Trust and designated the Premier Capital Trust I ______% Cumulative
Preferred Securities (liquidation amount $25.00 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Issuer Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.5 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Issuer Trust, dated as of November __, 1997, as the same
may be amended from time to time (the "Trust Agreement"), among Premier
Bancshares, Inc., as Depositor, State Street Bank and Trust Company, as Property
Trustee, Wilmington Trust Company, as Delaware Trustee, and the Holders of Trust
Securities, including the designation of the terms of the Preferred Securities
as set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Premier Bancshares, Inc., as Guarantor, and State
Street Bank and Trust Company, as Guarantee Trustee, dated as of November __,
1997 (the "Guarantee Agreement"), to the extent provided therein.
This Preferred Securities Certificate is a Global Preferred Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of a Depositary or a nominee of a Depositary.
This Preferred Securities Certificate is exchangeable for Preferred Securities
Certificates registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement and
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
<PAGE>
Unless this Preferred Securities Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to Premier Capital Trust I or its agent for registration of
transfer, exchange or payment, and any Preferred Securities Certificate issued
is registered in the name of Cede & Co. or such other name as it requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT ACCOUNT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD
THIS PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH
PURCHASE OR HOLDING IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-
60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH
PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS PREFERRED SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN THAT IS A PLAN OR A PLAN ASSET ENTITY OR IS
PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT (A) THE PURCHASE AND
HOLDING OF THE PREFERRED SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED
BY PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION, (B)
THE COMPANY AND THE ADMINISTRATIVE TRUSTEES ARE NOT "FIDUCIARIES" WITHIN THE
MEANING OF SECTION 3(21) OF ERISA AND THE REGULATIONS THEREUNDER, WITH RESPECT
TO SUCH PERSON'S INTEREST IN THE PREFERRED SECURITIES OR THE SUBORDINATED
DEBENTURES, AND (C) IN PURCHASING THE PREFERRED SECURITIES SUCH PERSON APPROVES
THE PURCHASE OF THE SUBORDINATED DEBENTURES AND THE APPOINTMENT OF THE TRUSTEES.
The Issuer Trust will furnish a copy of the Trust Agreement and
Guarantee Agreement to the Holder without charge upon written request to the
Issuer Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
2
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate this _____ day of November, 1997.
PREMIER CAPITAL TRUST I
By:
----------------------------------
Darrell D. Pittard
Administrative Trustee
COUNTERSIGNED AND REGISTERED:
STATE STREET BANK AND TRUST
COMPANY, as Securities Registrar
By:
-----------------------------
Authorized Signatory
3
<PAGE>
EXHIBIT 4.9
================================================================================
GUARANTEE AGREEMENT
PREFERRED SECURITIES GUARANTEE AGREEMENT
BY AND BETWEEN
PREMIER BANCSHARES, INC.
AND
STATE STREET BANK AND TRUST COMPANY
NOVEMBER 13, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
------
<S> <C>
ARTICLE I DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation................................ 1
ARTICLE II TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.............................. 4
SECTION 2.2. Lists of Holders of Securities................................ 5
SECTION 2.3. Reports by the Preferred Guarantee Trustee.................... 5
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee............... 5
SECTION 2.5. Evidence of Compliance with Conditions Precedent.............. 5
SECTION 2.6. Events of Default; Waiver..................................... 5
SECTION 2.7. Event of Default; Notice...................................... 6
SECTION 2.8. Conflicting Interests......................................... 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.......... 6
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee................. 8
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee......... 10
ARTICLE IV PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility...................... 10
SECTION 4.2. Appointment, Removal and Resignation of Preferred Guarantee
Trustees...................................................... 11
ARTICLE V GUARANTEE
SECTION 5.1. Guarantee..................................................... 12
SECTION 5.2. Waiver of Notice and Demand................................... 12
SECTION 5.3. Obligations Not Affected...................................... 12
SECTION 5.4. Rights of Holders............................................. 13
SECTION 5.5. Guarantee of Payment.......................................... 13
SECTION 5.6. Subrogation................................................... 13
SECTION 5.7. Independent Obligations....................................... 14
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions.................................... 14
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 6.2 Ranking........................................................ 14
ARTICLE VII TERMINATION
SECTION 7.1. Termination................................................... 15
ARTICLE VIII INDEMNIFICATION
SECTION 8.1. Exculpation................................................... 15
SECTION 8.2. Indemnification............................................... 15
ARTICLE IX MISCELLANEOUS
SECTION 9.1. Successors and Assigns........................................ 16
SECTION 9.2. Amendments.................................................... 16
SECTION 9.3. Notices....................................................... 16
SECTION 9.4. Benefit....................................................... 17
SECTION 9.5. Governing Law................................................. 17
</TABLE>
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GUARANTEE AGREEMENT
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (this "Preferred Securities
Guarantee"), dated as of November 13, 1997, is executed and delivered by PREMIER
BANCSHARES, INC., a Georgia corporation (the "Guarantor"), and STATE STREET BANK
AND TRUST COMPANY, a banking corporation organized under the laws of the state
of Massachusetts, as trustee (the "Preferred Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Preferred
Securities (as defined herein) of Premier Capital Trust I, a Delaware statutory
business trust (the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of November 13, 1997, among the trustees of the Trust
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
on the date hereof preferred securities, having an aggregate liquidation amount
of $25.0 million, designated the ___% Cumulative Trust Preferred Securities (the
"Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Preferred Securities Guarantee, to pay to the Holders of the
Preferred Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND INTERPRETATION.
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) terms defined in the Trust Agreement as at the date of execution of
this Preferred Securities Guarantee have the same meaning when used in this
Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee has the
same meaning throughout;
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(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee to Articles and
Sections are to Articles and Sections of this Preferred Securities Guarantee,
unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee, unless otherwise defined in this
Preferred Securities Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which federal or state
banking institutions in Atlanta, Georgia are authorized or required by law,
executive order or regulation to close or a day on which the Corporate Trust
Office of the Preferred Guarantee Trustee is closed for business.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Two International Place,
Boston, Massachusetts 02110, Attention: Paul D. Allen, Vice President.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the ___% Subordinated Debentures due December 31, 2027,
of the Debenture Issuer held by the Property Trustee of the Trust.
"Debenture Issuer" means the Guarantor.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Preferred Securities Guarantee.
"Guarantor" means Premier Bancshares, Inc., a Georgia corporation.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by the Trust: (i) any accrued and unpaid Distributions (as defined in the
Trust Agreement) that are required to be paid on such Preferred Securities, to
the extent the Trust shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price"), to the extent the Trust has funds available therefor,
with respect to any Preferred Securities
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called for redemption by the Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Debentures to the Holders in exchange for Preferred
Securities as provided in the Trust Agreement), the lesser of (a) the aggregate
of the liquidation amount and all accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Trust shall have
funds available therefor (the "Liquidation Distribution"), and (b) the amount of
assets of the Trust remaining available for distribution to Holders in
liquidation of the Trust.
"Holder" shall mean any holder, as registered on the books and records of
the Trust, of any Preferred Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of November 13, 1997, among the
Debenture Issuer and State Street Bank and Trust Company, as trustee, and any
indenture supplemental thereto pursuant to which certain subordinated debt
securities of the Debenture Issuer are to be issued to the Property Trustee of
the Trust.
"Liquidation Distribution" has the meaning provided therefor in the
definition of Guarantee Payments.
"Majority in liquidation amount of the Preferred Securities" means the
holders of more than 50% of the liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all of the Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two authorized officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
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(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means State Street Bank and Trust Company,
until a Successor Preferred Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Preferred Securities
Guarantee and thereafter means each such Successor Preferred Guarantee Trustee.
"Redemption Price" has the meaning provided therefor in the definition of
Guarantee Payments.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice-president, any assistant vice-president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Securities Guarantee is subject to the provisions of the
Trust Indenture Act that are required to be part of this Preferred Securities
Guarantee and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Preferred Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
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SECTION 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Preferred Securities ("List of
Holders") as of the date (i) within 1 Business Day after January 1 and June 30
of each year, and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
15 days before such List of Holders is given to the Preferred Guarantee Trustee;
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY THE PREFERRED GUARANTEE TRUSTEE.
On or before July 15 of each year, the Preferred Guarantee Trustee shall
provide to the Holders of the Preferred Securities such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Preferred Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default and its
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consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Preferred Securities Guarantee, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events of
Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such notice;
provided, that the Preferred Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Preferred Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Preferred Guarantee Trustee shall have
received written notice, or of which a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Trust Agreement shall
have obtained actual knowledge.
SECTION 2.8. CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE PREFERRED GUARANTEE TRUSTEE.
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee for the benefit of the Holders of the Preferred Securities,
and the Preferred Guarantee Trustee shall not transfer this Preferred Securities
Guarantee to any Person except a Holder of Preferred Securities exercising his
or her rights pursuant to Section 5.4(b) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
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(b) If an Event of Default actually known to a Responsible Officer of the
Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Preferred Securities Guarantee, and no implied covenants shall be read into
this Preferred Securities Guarantee against the Preferred Guarantee Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible Officer of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall exercise such
of the rights and powers vested in it by this Preferred Securities Guarantee,
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be construed
to relieve the Preferred Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee Trustee
shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Preferred Securities
Guarantee against the Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates
or opinions that by any provision hereof are specifically
required to be furnished to the Preferred Guarantee Trustee,
the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Preferred
Guarantee Trustee, unless it shall be
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proved that the Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in liquidation
amount of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall require
the Preferred Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Preferred Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Preferred
Securities Guarantee or indemnity, reasonably satisfactory to the Preferred
Guarantee Trustee, against such risk or liability is not reasonably assured to
it.
SECTION 3.2. CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting any action
hereunder, the Preferred Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request
and conclusively rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;
(iv) the Preferred Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof);
(v) the Preferred Guarantee Trustee may consult with counsel, and the
written advice or opinion of such counsel with respect to legal matters shall be
full and complete
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authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Preferred Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of this
Preferred Securities Guarantee from any court of competent jurisdiction;
(vi) the Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred Securities
Guarantee at the request or direction of any Holder, unless such Holder shall
have provided to the Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of the
Preferred Guarantee Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Preferred
Guarantee Trustee; provided that, nothing contained in this Section 3.2(a)(vi)
shall be taken to relieve the Preferred Guarantee Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Preferred Securities Guarantee;
(vii) the Preferred Guarantee 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 Preferred Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit;
(viii) the Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or
through agents, nominees, custodians or attorneys, and the Preferred Guarantee
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;
(ix) any action taken by the Preferred Guarantee Trustee or its agents
hereunder shall bind the Holders of the Preferred Securities, and the signature
of the Preferred Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall be required to
inquire as to the authority of the Preferred Guarantee Trustee to so act or as
to its compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by the
Preferred Guarantee Trustee's or its agent's taking such action;
(x) whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any other
action hereunder, the Preferred Guarantee Trustee (i) may request instructions
from the Holders of a Majority in liquidation amount of the Preferred
Securities, (ii) may refrain from enforcing such remedy or right or taking such
other action until such
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instructions are received, and (iii) shall be protected in conclusively relying
on or acting in accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be deemed to
impose any duty or obligation on the Preferred Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Preferred Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The Recitals contained in this Guarantee shall be taken as the statements
of the Guarantor, and the Preferred Guarantee Trustee does not assume any
responsibility for their correctness. The Preferred Guarantee Trustee makes no
representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Preferred Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, and subject to supervision
or examination by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), 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.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
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(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED GUARANTEE
TRUSTEES.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Preferred Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been appointed or until
its removal or resignation. The Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Preferred Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Preferred Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or removal or
resignation of the Preferred Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Preferred Guarantee Trustee all amounts accrued to
the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Trust), as and when due, regardless of any defense, right of set-off
or counterclaim that the Trust may have or assert. The Guarantor's obligation
to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Trust to pay such
amounts to the Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Trust granting indulgence or extension of any
kind;
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(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) any failure or omission to receive any regulatory approval or
consent required in connection with the Preferred Securities (or the common
equity securities issued by the Trust), including the failure to receive any
approval of the Board of Governors of the Federal Reserve System required for
the redemption of the Preferred Securities;
(g) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(h) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities shall have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Trust, the Preferred Guarantee Trustee or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.6. SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Trust in respect of any amounts paid
to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent
13
<PAGE>
required by mandatory provisions of law) be entitled to enforce or exercise any
right that it may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (h), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS.
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default under this Preferred Securities Guarantee, an
Event of Default under the Trust Agreement or during an Extended Interest
Payment Period (as defined in the Indenture), then (a) the Guarantor shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than as a result of a reclassification of its capital
stock for another class of its capital stock) and (b) the Guarantor shall not
make any payment of interest or principal on or repay, repurchase or redeem any
debt securities issued by the Guarantor which rank pari passu with or junior to
the Debentures.
SECTION 6.2 RANKING.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, (ii) pari passu with the most
senior preferred securities or preference stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by the Guarantor
in respect of any preferred securities or preference stock of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock.
14
<PAGE>
ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION.
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) upon full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust, or (iii) upon distribution of the Debentures to the
Holders of the Preferred Securities. Notwithstanding the foregoing, this
Preferred Securities Guarantee shall continue to be effective or shall be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Preferred Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.2. INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any loss, 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 (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or
15
<PAGE>
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount of
the Preferred Securities. The provisions of Article VI of the Trust Agreement
with respect to meetings of Holders of the Preferred Securities apply to the
giving of such approval.
SECTION 9.3. NOTICES.
All notices provided for in this Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
State Street Bank and Trust Company
Corporate Services Division
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Paul D. Allen, Vice President
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities):
16
<PAGE>
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 East Paces Ferry Road
Atlanta, Georgia 30326
Attention: Darrell D. Pittard, Chairman and
Chief Executive Officer
(c) If given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4. BENEFIT.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5. GOVERNING LAW.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
This Preferred Securities Guarantee is executed as of the day and year
first above written.
PREMIER BANCSHARES, INC.,
as Guarantor
By:
--------------------------------------
Darrell D. Pittard, Chairman and Chief
Executive
Officer
STATE STREET BANK AND TRUST COMPANY,
as Preferred Guarantee Trustee
By:
--------------------------------------
Paul D. Allen, Vice President
17
<PAGE>
EXHIBIT 5.1
November 6, 1997
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
Premier Capital Trust I
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
Ladies and Gentlemen:
We have acted as counsel to Premier Bancshares, Inc., a Georgia corporation
(the "Company"), and Premier Capital Trust I, a Delaware business trust (the
"Trust"), in connection with the preparation and filing with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), of a Registration Statement on Form S-3, Registration No.
333-38461 (the "Registration Statement"), for the purpose of registering the
Trust's offering of __% Cumulative Trust Preferred Securities (the "Preferred
Securities") to be guaranteed by the Company (the "Guarantee"), and the issuance
to the Trust of the ___% Subordinated Debentures (the "Subordinated Debentures")
of the Company. The Trust exists for the purpose of issuing the Preferred
Securities and investing the proceeds thereof in an equivalent amount of
Subordinated Debentures. In addition, we have reviewed: (i) the Amended and
Restated Trust Agreement to be entered into by and between the Company and the
Delaware Trustee, the Property Trustee and the Administrative Trustees (the
"Trust Agreement"), pursuant to which the Preferred Securities are to be issued;
(ii) the Indenture to be entered into by and between the Company and the
Indenture Trustee (the "Indenture") which will govern the Subordinated
Debentures to be issued by the Company; and (iii) the Preferred Securities
Guarantee Agreement to be entered into by and between the Company and the
Preferred Guarantee Trustee (the "Guarantee Agreement"), pursuant to which the
Company will guarantee certain obligations of the Trust with respect to the
Preferred Securities. All capitalized terms used herein and not otherwise
defined have the meanings specified in the Registration Statement.
In so acting, we have also examined and relied upon the originals, or
copies certified or otherwise identified to our satisfaction, of such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below.
<PAGE>
Based upon the foregoing, we are of the following opinions:
1. The execution and delivery by the Company of the Trust Agreement,
the Indenture and the Guarantee Agreement has been duly and validly
authorized.
2. The Subordinated Debentures to be issued by the Company to the
Trust will, when issued in accordance with the terms of the
Indenture as described in the Registration Statement at the time it
becomes effective, constitute valid and binding obligations of the
Company.
3. The Guarantee Agreement when provided by the Company in accordance
with the terms stated in the Registration Statement at the time it
becomes effective and upon issuance of the Preferred Securities in
accordance with the terms described in the Registration Statement,
will constitute a valid and binding obligation of the Company.
In rendering the foregoing opinion, we have relied to the extent we
deem appropriate on the opinion of Richards, Layton & Finger, special counsel to
the Trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the use of our name under the caption "Validity of
Securities" in the Prospectus. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
WOMBLE CARLYLE SANDRIDGE & RICE,
A PROFESSIONAL LIMITED LIABILITY COMPANY
<PAGE>
EXHIBIT 5.2
November 6, 1997
Premier Capital Trust I
c/o Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
RE: Premier Capital Trust I
-----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Premier Capital Trust I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust (the "Certificate"), as filed in
the office of the Secretary of State of the State of Delaware (the "Secretary of
State") on October 21, 1997;
(b) The Trust Agreement of the Trust, dated as of October 21, 1997, among
Premier Bancshares, Inc., a Georgia corporation ("Premier"), and the trustees of
the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form S-3,
including a prospectus (the "Prospectus") relating to the ____% Cumulative Trust
Preferred Securities of the Trust representing preferred undivided beneficial
interests in the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as filed by Premier and the Trust with the Securities
and Exchange Commission on October 22, 1997;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among Premier, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the Trust (the
"Trust Agreement"), to be attached as an exhibit to the Registration Statement;
and
<PAGE>
(e) A Certificate of Good Standing for the Trust, dated November 6, 1997,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed above, and we have assumed that there exists no provision
in any document that we have not reviewed that bears upon or is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Trust Agreement and the Certificate are
in full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation or due organization or due
formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv) that each
of the parties to the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under, such documents, (v)
the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the "Preferred Security
Holders") of a Preferred Security Certificate for such Preferred Security and
the payment for the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Prospectus, and (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance with the Trust
Agreement and the Prospectus. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder which are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
<PAGE>
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
-------
(S) 3801, et seq.
-- ---
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonaccessible
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and Exchange
Commission exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Validity of Securities" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder, except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
<PAGE>
November 6, 1997
EXHIBIT 8.1
Premier Bancshares, Inc.
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
Premier Capital Trust I
2180 Atlanta Plaza
950 E. Paces Ferry Road
Atlanta, Georgia 30326
Re: Registration Statement on Form S-3; Registration No. 333-38461
Dear Gentlemen:
We have acted as counsel for Premier Bancshares, Inc. a Georgia
corporation (the "Company"), and Premier Capital Trust I (" Premier Capital
Trust"), a statutory business trust created under the laws of Delaware, in
connection with the above-captioned Registration Statement on Form S-3, filed
with the Securities and Exchange Commission (the "Commission") on October 22,
1997, under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, being hereinafter referred to as the "Registration
Statement"), for the purpose of registering the Preferred Securities issued by
Capital Trust and the Subordinated Debentures issued by the Company to Capital
Trust in connection with such issuance of the Preferred Securities. All
capitalized terms not otherwise defined herein shall have the meaning set forth
in the Registration Statement.
In rendering this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Certificate of
Trust of Capital Trust dated as of October 21, 1997; (ii) the form of the Trust
Agreement of Premier Capital Trust; (iii) the form of the Preferred Security
Certificate of Premier Capital Trust; (iv) the form of the Preferred Securities
Guarantee Agreement for Premier Capital Trust; (v) the form of Subordinated
Debenture; and (vi) the form of Indenture, in each case in the form filed as an
exhibit to the Registration Statement. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of
<PAGE>
Premier Bancshares, Inc.
Premier Capital Trust
November , 1997
Page 2
such other documents, certificates, and records as we have deemed necessary or
appropriate for purposes of rendering the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed by parties other than the Company or Premier Capital Trust,
we have assumed that such parties had the power, corporate or other, to enter
into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and that such documents constitute
valid and binding obligations of such parties. In addition, we have assumed
that the Trust Agreement of Premier Capital Trust, the Preferred Securities of
Premier Capital Trust, the Guarantee, the Subordinated Debentures and the
Indenture when executed, will be executed in substantially the form reviewed by
us and that the terms of the Subordinated Debentures when established in
conformity with the Indenture will not violate any applicable law. As to any
facts material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers, trustees, and other representatives of the Company,
Premier Capital Trust, and others.
We hereby confirm that, although the discussion set forth under the
heading "MATERIAL FEDERAL INCOME TAX CONSEQUENCES" in the form of Prospectus for
the offering of Preferred Securities filed as part of the Registration Statement
("Prospectus") does not purport to discuss all possible United States federal
income tax consequences of the purchase, ownership and disposition of Preferred
Securities, in our opinion, such discussion constitutes, in all material
respects, a fair and accurate summary of the United States federal income tax
consequences of the purchase, ownership and disposition of Preferred Securities,
based upon current law as they relate to holders described therein. It is
possible that contrary positions with regard to the purchase, ownership and
disposition of the Preferred Securities may be taken by the Internal Revenue
Service and that a court may agree with such contrary positions.
Additionally, based upon the facts, assumptions and representations
set forth or referred to herein, and the accuracy of such facts, assumptions and
representations as of the date hereof, it is our opinion that Premier Capital
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation. Accordingly,
each holder of Preferred Securities will be treated as owning an undivided
beneficial interest in the Subordinated Debentures.
The opinions expressed in this letter are based on the Internal
Revenue Code of 1986, as amended, the Income Tax Regulations promulgated by the
Treasury Department thereunder and judicial authority reported as of the date
hereof. We have also considered the position of the Internal
<PAGE>
Premier Bancshares, Inc.
Premier Capital Trust
November , 1997
Page 3
Revenue Service (the "Service") reflected in published and private rulings.
Although we are not aware of any pending changes to these authorities that would
alter our opinions, there can be no assurances that future legislation or
administrative changes, court decisions or Service interpretations will not
significantly modify the statements or opinions expressed herein.
Our opinion is limited to those federal income tax issues specifically
considered herein and are addressed to and are only for the benefit of the
Company and Premier Capital Trust in connection with the filing of the
Registration Statement and, except as set forth below, is not to be used,
circulated, quoted or otherwise referred to for any other purpose or relied upon
by any other person for any purpose without our written consent. We do not
express any opinion as to any other United States federal income tax issues, or
any state or local tax issues. Although the opinions herein are based upon our
best interpretation of existing sources of law and expresses what we believe a
court would properly conclude if presented with these issues, no assurance can
be given that such interpretations would be followed if they were to become the
subject of judicial or administrative proceedings.
We hereby consent to the use of our name under the captions "MATERIAL
FEDERAL INCOME TAX CONSEQUENCES" and "VALIDITY OF SECURITIES" in the Prospectus
and the filing of this opinion with the Commission as Exhibit 8.1 to the
Registration Statement. In giving this consent, we do not thereby concede that
we are within the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission promulgated
thereunder. This opinion is expressed as of the date hereof and applies only to
the disclosures set forth in the Prospectus and Registration Statement. We
disclaim any undertaking to advise you of any subsequent changes of the facts
stated or assumed herein or any subsequent changes in applicable law.
Sincerely,
WOMBLE CARLYLE SANDRIDGE & RICE
A Professional Limited Liability Company
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the November 7, 1997
Amendment No. 1 to Registration Statement on Form S-3 of our report, dated
January 31, 1997, relating to the consolidated financial statements of Premier
Bancshares, Inc. and subsidiaries, contained in the Annual Report on Form 10-K
for the fiscal year ended December 31, 1996 and our report, dated January 31,
1997, except for Note 2 as to which the date is June 23, 1997, relating to the
consolidated financial statements of Premier Bancshares, Inc. and subsidiaries
restated for the combination of Central and Southern Holding Company accounted
for as a pooling of interests, contained in the Current Report on Form 8-K/A
dated November 4, 1997, and to the reference to our Firm under the caption
"Experts."
MAULDIN & JENKINS, LLC
/s/ Mauldin & Jenkins, LLC
Atlanta, Georgia
November 7, 1997
