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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION APRIL 18, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D. C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE COLONIAL BANCGROUP, INC.
(Exact name of Registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
DELAWARE 6711 63-0661573
(State of Incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification No.)
ONE COMMERCE STREET, SUITE 800 (334) 240-5000
MONTGOMERY, ALABAMA 36104 (Telephone No.)
(Address of principal executive offices)
</TABLE>
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W. FLAKE OAKLEY, IV
SECRETARY
POST OFFICE BOX 1108
MONTGOMERY, ALABAMA 36102
(334) 240-5000
(Name, address and telephone no. of agent for service)
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Copies to:
MICHAEL D. WATERS, ESQUIRE
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
ONE COMMERCE STREET, SUITE 802
MONTGOMERY, ALABAMA 36101-0019
FACSIMILE: (334) 265-4533
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date 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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities................... 100,000 $1,000(1) $100,000,000 $30,303.03
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</TABLE>
(1) Estimated
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON EACH SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
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<PAGE> 2
THE COLONIAL BANCGROUP, INC.
CROSS REFERENCE SHEET
TO ITEMS IN FORM S-3
<TABLE>
<CAPTION>
CAPTION IN PROSPECTUS OR OTHER
FORM S-3 ITEM NUMBER AND CAPTION LOCATION IN REGISTRATION STATEMENT
- -------------------------------- ----------------------------------
<C> <S> <C>
1. Forepart of the Registration Statement and
Outside Front Cover Page of Prospectus... Facing Page; Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages
of Prospectus............................ Inside Front and Outside Back Cover Pages
of Prospectus
3. Summary Information, Risk Factors and Ratio
of Earnings to Fixed Charges............. Ratios of Earnings to Fixed Charges
4. Use of Proceeds............................ Use of Proceeds
5. Determination of Offering Price............ Not Applicable
6. Dilution................................... Not Applicable
7. Selling Security Holders................... Not Applicable
8. Plan of Distribution....................... Outside Front and Inside Front Cover Pages
of Prospectus; Description of the
Securities; Plan of Distribution
9. Description of Securities to be
Registered............................... Outside Front Cover Page of Prospectus;
Description of the Securities
10. Interests of Named Experts and Counsel..... Legal Matters
11. Material Changes........................... Not Applicable
12. Incorporation of Certain Information by
Reference................................ Documents Incorporated by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities.............................. Not Applicable
</TABLE>
<PAGE> 3
PROSPECTUS
$100,000,000
THE COLONIAL BANCGROUP, INC.
SUBORDINATED DEBT SECURITIES
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The Colonial BancGroup, Inc. ("BancGroup") may offer from time to time up
to $100,000,000 aggregate principal amount of its subordinated debt securities
(the "Securities") at prices and on terms to be determined at the time of sale.
The specific designation, aggregate principal amount, maturity, authorized
denominations, any premium, any interest rate (which may be fixed or variable),
any interest payment dates, any optional or mandatory redemption terms, the
initial public offering price and other terms of the offering of the Securities
in respect of which this Prospectus is being delivered ("Offered Securities")
are set forth in the accompanying Prospectus Supplement (the "Prospectus
Supplement").
The Securities will be unsecured and will be subordinate in right of
payment to the proper payment in full of all existing and future Senior
Indebtedness of BancGroup, as described in "Description of Securities --
Subordination of Securities." Unless specified otherwise in a Prospectus
Supplement, the Securities will be subject to acceleration of maturity only in
the event of certain events of bankruptcy, insolvency or reorganization of
BancGroup. There is no right of acceleration in the case of a default in the
payment of principal of, premium, if any, or interest on, the Securities or in
the performance of any covenant or agreement of BancGroup. See "Description of
Securities -- Events of Default and Limited Rights of Acceleration."
The Securities may be sold (i) directly by BancGroup to the public or
through agents designated by it from time to time, (ii) through underwriting
syndicates led by one or more managing underwriters, or (iii) through one or
more underwriters acting alone. If any agent of BancGroup or any underwriter is
involved in the sale of the Securities offered hereby, the name of such agent or
underwriter and any applicable commissions or discounts are set forth in, or may
be calculated from, the Prospectus Supplement, and the net proceeds to BancGroup
from such sale will be the purchase price of such Securities less such
commissions or discounts and the other attributable issuance and distribution
expenses. See "Plan of Distribution" for possible indemnification arrangements
for agents or underwriters.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement or a term sheet setting forth the terms
of the Securities.
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THE SECURITIES WILL NOT BE SAVING ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF BANCGROUP AND WILL NOT BE INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND, THE SAVINGS ASSOCIATION
INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY.
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 date of this Prospectus is May 1, 1997.
<PAGE> 4
AVAILABLE INFORMATION
BancGroup is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and, in accordance therewith, files reports
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports and other information filed by BancGroup, including
proxy and information statements, can be inspected and copied at the public
reference facilities of the Commission, Judiciary Plaza, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, and at certain regional offices: 7 World
Trade Center, 13th Floor, New York, New York 10048; Citicorp Center, 500 West
Madison Street, suite 1400, Chicago, Illinois 60661-2511; 1401 Brickell Avenue,
Suite 200, Miami, Florida 33131; 1801 California Street, Suite 4800, Denver,
Colorado 80202-2648; 5670 Wilshire Boulevard, 11th Floor, Los Angeles,
California 90036-3648. Copies of such material can be obtained from the Public
Reference Section of the Commission at prescribed rates.
The Commission also maintains a Web site (http://www.sec.gov) that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission.
BancGroup's Common Stock is listed for trading on the NYSE. Reports,
including proxy and information statements, of BancGroup and other information
may be inspected at the NYSE, 20 Broad Street, New York, New York 10005.
BancGroup has filed with the Commission a Registration Statement under the
Securities Act of 1933, as amended, to register the Securities offered hereby.
This Prospectus omits certain information contained in the Registration
Statement and exhibits thereto. Such Registration Statement, including the
exhibits thereto, can be inspected at the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of such
Registration Statement can be obtained at prescribed rates from the Commission
at that address.
DOCUMENTS INCORPORATED BY REFERENCE
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
THE PERSON SPECIFIED BELOW.
The following documents filed by BancGroup with the Commission are hereby
incorporated by reference into this Prospectus:
(1) BancGroup's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(2) BancGroup's Report on Form 8-K dated January 20, 1997;
(3) BancGroup's Report on Form 8-K dated March 10, 1997; and
(4) BancGroup's Report on Form 8-K dated April 15, 1997.
All documents filed by BancGroup pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this Prospectus
and prior to the termination of this offering shall be deemed incorporated by
reference in this Prospectus and made a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed
incorporated herein by reference will be deemed to be modified or superseded for
the purpose of this Prospectus to the extent that a statement contained herein
or in the other subsequently filed document which also is, or is deemed to be,
incorporated herein by reference modifies or supersedes such statement. Any such
statement so modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
BancGroup will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the request of any
such person, a copy of any and all of the documents which have been incorporated
herein by reference but not delivered herewith (other than the exhibits to such
documents). Such request, in writing or by telephone, should be directed to W.
Flake Oakley, IV, Secretary, at
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BancGroup's principal offices, The Colonial BancGroup, Inc., One Commerce
Street, Post Office Box 1108, Montgomery, Alabama 36102 (telephone
334-240-5000).
BUSINESS OF BANCGROUP
GENERAL
BancGroup is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended, and incorporated under the laws of Delaware. It
was organized in 1974, but has operated under its current name and management
since 1981. BancGroup operates wholly owned commercial banking subsidiaries in
the states of Alabama, Florida, Georgia and Tennessee, each under the name
"Colonial Bank." Colonial Bank conducts a full service commercial banking
business in the state of Alabama through 110 branches. In Tennessee, Colonial
Bank conducts a general commercial banking business through three branches. In
Georgia, Colonial Bank operates eleven branches in the Atlanta area and three
branches in the Dalton area. In Florida, Colonial Bank operates eleven branches
in the Orlando and Ormond Beach areas, nine branches in Dade, Broward and Palm
Beach Counties, and six branches in Eustis and Lake County. Colonial Mortgage
Company, a subsidiary of Colonial Bank in Alabama, is a mortgage banking company
which services approximately $10.6 billion in residential loans and which
originates mortgages in 37 states through 6 regional offices. BancGroup's
commercial banking loan portfolio is comprised primarily of commercial real
estate loans (24%) and residential real estate loans (43%), a significant
portion of which is located within the State of Alabama. BancGroup's growth in
loans over the past several years has been concentrated in commercial and
residential real estate loans.
BancGroup plans to merge all of its existing subsidiary banks into its
Alabama bank, Colonial Bank, no later than July 1, 1997.
BancGroup is a legal entity separate and distinct from its subsidiaries,
including its bank subsidiaries. There are various legal limitations governing
the extent to which certain of BancGroup's subsidiaries may extend credit, pay
dividends or otherwise supply funds to, or engage in transactions with,
BancGroup or certain of its other subsidiaries. The rights of BancGroup to
participate in any distribution of assets of any subsidiary upon its
dissolution, winding-up, liquidation or reorganization or otherwise are subject
to the prior claims of creditors of that subsidiary, except to the extent that
BancGroup may itself be a creditor of that subsidiary and its claims are
recognized. Claims on BancGroup's subsidiaries by creditors other than BancGroup
include long-term debt and substantial obligations with respect to deposit
liabilities, trading liabilities, federal funds purchased, securities sold under
repurchase agreements, as well as short-term borrowings and accounts payable.
BancGroup's principal office is located at One Commerce Street, Montgomery,
Alabama 36104. Its telephone number is (334) 240-5000. Additional information
about BancGroup is included in documents incorporated herein by reference. See
"DOCUMENTS INCORPORATED BY REFERENCE."
RECENT AND PENDING BUSINESS COMBINATIONS
Since December 31, 1996, BancGroup has acquired three financial
institutions in Florida, one in Georgia and one in Alabama, with aggregate
assets of $896.9 million and aggregate stockholders equity of $66.6 million.
BancGroup has pending three acquisitions of financial institutions in Florida
which, when completed, will add in the aggregate $421.4 million in assets and
$25.8 million in stockholders' equity.
Acquisitions of other financial institutions have been, and are expected to
continue to be, an important part of the expansion of BancGroup's business.
BancGroup expects to continue to take advantage of the consolidation of the
financial services industry by further developing its franchise through the
acquisition of financial institutions. In effecting acquisitions, BancGroup's
management's fundamental objective is to enhance the value of BancGroup's
franchise on a going forward basis. Future acquisitions may at times require
BancGroup to pay consideration in excess of the current book or market value of
the net assets acquired, thereby resulting in dilution of the current book value
per share of the BancGroup common stock or resulting
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in the incurrence of additional indebtedness by BancGroup which may rank senior
to the Securities offered hereby.
USE OF PROCEEDS
The net proceeds from the sale of the Securities will be used for general
corporate purposes, including BancGroup's working capital needs, possible
additional contributions to the capital of BancGroup's subsidiaries, possible
acquisitions of other financial institutions or their assets, possible
acquisitions of, or investments in, other businesses of a type eligible for bank
holding companies and possible reduction of outstanding indebtedness of
BancGroup. See "Business of BancGroup -- Recent and Pending Business
Combinations." Pending such use, BancGroup may temporarily invest the net
proceeds in investment-grade securities. BancGroup, from time to time, may
engage in additional capital financing of a character and in amounts to be
determined by BancGroup in light of its needs at such time or times and in light
of prevailing market conditions. If BancGroup elects at the time of issuance of
the Securities to make a different or more specified use of the proceeds other
than that set forth herein, such use will be described in the applicable
Prospectus Supplement.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth BancGroup's consolidated ratios of earnings
to fixed charges. The following ratios should be read in conjunction with the
Consolidated Financial Statements, the notes thereto and other financial
information incorporated by reference herein. For the purpose of computing the
consolidated ratios of earnings to fixed charges, earnings represent
consolidated income before income taxes. Fixed charges consist of interest on
deposits, long-term debt and short-term borrowings and one-third of rental
expense (which is deemed representative of the interest factor).
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
EARNINGS TO FIXED CHARGES:
Excluding Interest on Deposits(1)......................... 1.38 1.41 1.49 1.45 1.31
</TABLE>
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(1) Restated to give retroactive effect to the mergers with Jefferson Bancorp,
Inc. on January 3, 1997 and D/W Bankshares, Inc. on January 31, 1997.
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DESCRIPTION OF SECURITIES
The following sets forth certain general terms and provisions of the
Securities to which any Prospectus Supplement may relate. The particular terms
of the Securities offered by the Prospectus Supplement will be described in the
Prospectus Supplement relating to such Offered Securities.
The Securities will be issued under a Subordinated Indenture dated as of
March 31, 1997 (the "Indenture"), between BancGroup and SunTrust Bank, Atlanta,
Atlanta, Georgia, as Trustee for the Securities (the "Trustee"). A copy of the
Indenture has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part. The following summaries of certain provisions of
the Indenture do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
Indenture, including definitions therein of certain terms. Whenever particular
Sections, Articles or defined terms of the Indenture are referred to, it is
intended that such Sections, Articles, or definitions of the defined terms be
incorporated herein by reference. The particular terms of the Offered Securities
and the extent, if any, to which the general provisions may apply to the Offered
Securities will be described in the Prospectus Supplement relating to such
Offered Securities. Unless otherwise indicated, Section references contained
herein refer to the Sections of the Indenture. As of the date hereof, BancGroup
had not issued any Securities pursuant to the Indenture.
Since BancGroup is a holding company, the right of BancGroup, and hence the
right of creditors and shareholders of BancGroup, including Holders of the
Securities, to participate in any distribution of assets of any subsidiary of
BancGroup upon its liquidation, reorganization or otherwise is necessarily
subject to the prior claims of creditors of the subsidiary, except to the extent
that the claims of BancGroup itself as a creditor of the subsidiary may be
recognized.
GENERAL
The Securities will be unsecured obligations of BancGroup. The Indenture
does not limit the amount of the Securities which may be issued thereunder and
provides that the Securities of any series may be issued thereunder up to the
aggregate principal amount which may be authorized from time to time by
BancGroup. All Securities issued under the Indenture will rank equally and
ratably with any additional Securities issued under the Indenture. The Indenture
does not contain covenants prohibiting BancGroup from disposing of voting stock
of its subsidiaries, including the stock of any of its banking subsidiaries.
Neither the Indenture nor the Securities will limit or otherwise restrict the
amount of other indebtedness which may be incurred or the other securities which
may be issued by BancGroup or any of its subsidiaries.
The Securities will be subordinated to all existing and future Senior
Indebtedness of BancGroup as described below under "Subordination of
Securities." THE SECURITIES WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF A BANK OR A SAVINGS ASSOCIATION AND WILL NOT BE INSURED BY THE
FDIC, THE BIF, THE SAIF OR ANY OTHER GOVERNMENT AGENCY.
Any Prospectus Supplement will, among other matters, set forth the
following specific terms relating to the Offered Securities as applicable: (i)
title; (ii) any limit on the aggregate principal amount or price; (iii) maturity
date or dates; (iv) interest rate or rates per annum or method of determining
the interest rate or rates per annum; (v) dates from and on which such interest
will accrue and be payable and designated record dates for such interest
payments; (vi) place or places, if any, in addition to or other than the City of
Atlanta, State of Georgia, where principal (and premium, if any) and interest
will be payable; (vii) any optional redemption terms; (viii) any mandatory or
optional sinking fund or analogous provisions; (ix) whether the Securities will
be issued in registered form, or be payable to bearer, with or without coupons,
and (x) any other terms of the Offered Securities not inconsistent with the
Indenture (Section 3.01).
Securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
any such Original Issue Discount Securities will be described in a Prospectus
Supplement. "Original Issue Discount Security" means any security which provides
for an amount less than the principal
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<PAGE> 8
amount thereof to be due and payable upon the declaration of acceleration of the
Maturity thereof upon the occurrences of an Event of Default and the
continuation thereof. (Section 1.01) Interest on the Securities of any series
will be payable to the persons in whose names the Securities are registered at
the close of business on the record date designated for an interest payment date
(Section 3.07). At the option of BancGroup, interest may be paid by mailing a
check to the addresses of the persons entitled thereto as they may appear on the
register for the Securities (Section 3.07). Unless otherwise indicated in the
Prospectus Supplement, the Securities will be issued only in fully registered
form without coupons in denominations of $1,000 and any integral multiple of
$1,000 (Section 3.02). No service charge will be made for any exchange,
registration of transfer or redemption of a Security, but BancGroup may require
payment of a sum sufficient to cover any tax or other governmental charge
thereon (Section 3.05) other than exchanges not involving any transfer (Sections
3.04, 8.06 and 12.07).
SUBORDINATION OF SECURITIES
The obligation of BancGroup to make payment on account of the principal of
(and premium, if any) and interest on the Securities of any series will be
subordinated and junior in right of payment to BancGroup's obligations to the
holders of Senior Indebtedness of BancGroup to the extent described in the
following paragraph. "Senior Indebtedness" means any indebtedness (including
principal, premium or interest) for money borrowed, or any indebtedness incurred
by BancGroup in connection with an acquisition by BancGroup or an Affiliate of
the stock or substantially all of the assets of another Person or a merger or
consolidation to which BancGroup or an Affiliate is a party, outstanding on the
date of execution of the Indenture as originally executed, or thereafter
created, incurred or assumed, for the payment of which BancGroup is at the time
of determination responsible or liable as obligor, guarantor or otherwise, and
all deferrals, renewals, extensions and refundings of any such indebtedness or
obligations; provided, however, that Senior Indebtedness shall not include (a)
indebtedness as to which, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such indebtedness
is subordinate in right of payment to any other indebtedness of BancGroup, (b)
indebtedness which by its terms refers explicitly to the Securities and states
that such indebtedness shall not be senior thereto and shall be either equally
subordinate and equally junior with such Securities, (c) indebtedness of
BancGroup in respect of the Securities, and (d) BancGroup's 7 1/2% Convertible
Subordinated Debentures due 2011, issued 1986, which shall rank in pari passu
with the Securities. (Section 1.01, 13.01)
In the event of any insolvency, bankruptcy, receivership, liquidation,
reorganization or other similar proceedings with respect to BancGroup or any
liquidation, dissolution or winding-up of the affairs of or relating to
BancGroup as a whole, whether voluntary or involuntary, all obligations of
BancGroup to the holders of Senior Indebtedness of BancGroup will be entitled to
be paid in full (or provisions will be made for such payment) before any payment
will be made on account of the principal of (and premium, if any) and interest
on the Securities. In the event of any such proceedings, after payment in full
(or provision has been made for such payment) of the principal of (and premium,
if any) and interest on Senior Indebtedness of BancGroup, the Holders of the
Securities, together with the holders of any obligations of BancGroup ranking on
a parity with the Securities, will be entitled to be paid from the remaining
assets of BancGroup the amounts at the time due and owing on account of unpaid
principal (and premium, if any) and interest on the Securities and such
obligations ranking on a parity therewith before any payment or other
distribution, whether in cash, property or otherwise, will be made on account of
any capital stock or any obligations of BancGroup ranking junior to the
Securities (Section 13.01 and 13.02). By reason of such subordination, in the
event of the insolvency of BancGroup, the holders of Senior Indebtedness of
BancGroup may receive more, ratably, and the Holders of the Securities having a
claim pursuant to the Securities may receive less, ratably, than other creditors
of BancGroup. As of the date hereof, BancGroup had approximately $936 million
principal amount of Senior Indebtedness outstanding, excluding trade payables
and guarantees and other contingent obligations of BancGroup.
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<PAGE> 9
GLOBAL SECURITIES
In order to facilitate the holding of the Securities in "book-entry" form,
the Securities of a series may be issued in whole or in part in the form of one
or more global securities (the "Global Securities") that will be deposited with,
or on behalf of, a depository identified in the Prospectus Supplement relating
to such series. Global Securities may be issued in either temporary or permanent
form. A Global Security may not be transferred except as a whole by the
depository for such Global Security to a nominee of such depository or by a
nominee of such depository to such depository or another nominee of such
depository or by such depository or any such nominee to a successor of such
depository or a nominee of such successor. Thus, the holder of a beneficial
interest in a Global Security will not have the right to convert such holder's
"book-entry" Securities into definitive Securities in certificated form.
The specific terms of the depository arrangement, if any, with respect to a
series of Securities issued in whole as "Global Securities" will be described in
the Prospectus Supplement relating to such series.
EVENTS OF DEFAULT AND LIMITED RIGHTS OF ACCELERATION
An Event of Default is defined under the Indenture with respect to the
Securities of any series issued thereunder only as certain events of bankruptcy,
insolvency or reorganization of BancGroup (Section 6.01).
Unless stated otherwise in a Prospectus Supplement, the Indenture does not
provide for any right of acceleration of the payment of the principal of a
series of the Securities upon a default in the payment of an installment of
principal or interest or a default in the performance of any covenant or
agreement in the Offered Securities of a particular series or in the Indenture.
In the event of a default in the payment of an installment of principal or
interest, the Holder of a security (or the Trustee under the Indenture on behalf
of the Holders of all of the series of the Securities so affected) may seek to
enforce payment of such installment of principal or interest.
The Indenture provides that if an Event of Default shall have occurred and
be continuing, either the Trustee or the Holders of not less that 25% in
principal amount of the then outstanding Securities of the series as to which
the Event of Default has occurred (or such lesser amount as may be provided for
in the Securities of such series) may declare the principal of all of the
Securities of such series to be then due and payable immediately by a notice in
writing to BancGroup (and to the Trustee if given by the Holders), and upon any
such declaration, all such principal or such lesser amount shall become
immediately due and payable. However, at any time after such a declaration of
acceleration with respect to the Securities of any series has been made and
before a judgment or decree based on such acceleration has been obtained by the
Trustee, the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series may, under certain circumstances, rescind
and annul such acceleration and its consequences, if, among other things, all
Events of Default have been cured or waived as provided in the Indenture
(Section 6.02).
MODIFICATION OF THE INDENTURE AND WAIVER
The Indenture provides that modification and amendment may be made by
BancGroup and the Trustee with the consent of the Holders of not less than 66
2/3% in principal amount of the Outstanding Securities of each series affected
thereby; provided, however, that no such modification or amendment may, without
the consent of the Holder of each Outstanding Security affected thereby: (i)
change the stated maturity date of the principal of, or any installment of
interest on, any Security; (ii) reduce the principal amount, or the rate of
interest on, or any premium payable upon, the redemption of any Security; (iii)
change the place of payment or the currency in which a Security is payable; (iv)
impair the right to institute suit for the enforcement of any payment on or
after the stated maturity date thereof, or, in the case of redemption, on or
after the redemption date; (v) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of the Holders of which is
required to modify or amend the Indenture; (vi) reduce the percentage in
principal amount of the Outstanding Security in any series, the consent of the
Holders of which is required for waiver of compliance with certain provisions of
the Indenture or for waiver of certain defaults; (vii) modify any provision of
the Indenture relating to modification and amendment of the Indenture or waiver
of compliance with conditions or defaults thereunder, except to increase the
percentage in principal amount of the
7
<PAGE> 10
Outstanding Securities of any series the consent of the Holders of which is
required for such modification or waiver or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the holder of each Security affected thereby; or (viii) alter in any respect the
provisions regarding subordination of the Securities issued thereunder in a
manner adverse to the Holders thereof (Section 8.02).
Modification and amendment of the Indenture may be made by BancGroup and
the Trustee without the consent of any Holder for any of the following purposes:
(i) to evidence the succession of another Person to BancGroup; (ii) to add to
the covenants of BancGroup for the benefit of the Holders of all or any series
of the Securities; (iii) to add Events of Default; (iv) 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 the Securities, as
set forth in the Indenture; (v) to establish the form or terms of the Securities
of any series; (vi) to provide for the acceptance of appointment by a successor
Trustee; (vii) to cure any ambiguity, defect or inconsistency in the Indenture,
provided such action is not inconsistent with the provisions of the Indenture
and does not adversely affect the interests of the Holders of the Securities of
any series in any material respect; (viii) to add to or change any of the
provisions to provide for or to permit or facilitate the issuance of Securities
in bearer form, and with or without interest coupons; (ix) to provide terms and
conditions upon which Securities which qualify as capital under applicable rules
and regulations of BancGroup's primary federal regulator may be issued provided
that no such supplemental indenture may make any change in Securities already
outstanding; and (x) to modify, eliminate or add to the provisions of the
Indenture to such extent as may be necessary to conform the obligations of
BancGroup and the Trustee under the Indenture to the Trust Indenture Act
(Section 8.01).
The Holders of a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all Securities of such series
waive, insofar as such series is concerned, compliance by BancGroup with certain
restrictive provisions of the Indenture (Section 4.08). The Holders of a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all Securities of any series waive any past default
under the Indenture with respect to such series, except a default in the payment
of principal of (and premium, if any) or interest on, any Security of such
series or in respect of a covenant or provision which under the terms of the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected (Section 6.13).
CONSOLIDATION, MERGER AND SALE OF ASSETS
BancGroup may not consolidate with or merge into any other corporation or
sell, lease or convey all or substantially all of its assets to any other
corporation, unless (i) either (a) BancGroup shall be the continuing corporation
or (b) any successor or purchaser is a corporation organized under the laws of
the United States or any State thereof and any such successor or purchaser
expressly assumes BancGroup's obligations on the Securities and under the
Indenture and certain other conditions are met; and (ii) immediately after
giving effect to such transaction, BancGroup or such successor corporation shall
not be in default in the performance of any covenant or condition of the
Indenture to be performed by BancGroup (Section 9.01).
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect with respect to any series
of Securities (except as to surviving rights of registration of transfer or
exchange of any series of Securities, as expressly provided for in the
Indenture) as to all outstanding Securities of such series when (i) either (a)
all the Securities of such series theretofore authenticated (except (1) lost,
stolen or destroyed Securities which have been replaced or paid, and (2)
Securities for such series for whose payment money has been deposited in trust
or segregated or held in trust by BancGroup and thereafter repaid to BancGroup
or discharged from such trust, as provided in the Indenture) have been delivered
to the Trustee for cancellation or (b) all Securities of such series and not
theretofore delivered to the Trustee for cancellation (1) have become due and
payable, (2) by their terms are to become due within one year, or (3) if
redeemable, are to be called for redemption within one year, and BancGroup in
the case of clauses (b)(1), (2) or (3) above has deposited or caused to be
deposited with the Trustee funds in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal of and interest to the date of maturity
or
8
<PAGE> 11
redemption; (ii) BancGroup has paid all other sums payable by BancGroup under
the Indenture; and (iii) BancGroup has delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent under the Indenture relating to the satisfaction and discharge of the
Indenture have been complied with (Section 10.01).
ADDITIONAL PROVISIONS
No Holder of any Security of any series will have the right to institute
any proceeding, judicial or otherwise, with respect to the Indenture for any
remedy thereunder unless (i) such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default with respect to the
Securities of such series; (ii) the Holders of not less that 25% in principal
amount of the Outstanding Securities of such series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceedings as Trustee; (iii) the Trustee shall not have received for 60 days
after its receipt of such request from the Holders of a majority in principal
amount of the Outstanding Securities of such series a direction inconsistent
with such request; and (iv) the Trustee shall have failed to institute such
proceeding within 60 days after its receipt of such notice, request and offer of
indemnity (Section 6.07). However, the Holder of any Security will have an
absolute and unconditional right to receive payment of the principal of (and
premium, if any) and interest, in respect of such Security on or after the due
dates expressed in such Security and to institute suit for the enforcement of
any such payment (Section 6.08).
CONCERNING THE TRUSTEE
SunTrust Bank, Atlanta, Atlanta, Georgia, is Trustee under the Indenture.
Notices by U.S. Mail or by hand delivery to the Trustee should be directed to
the Trustee at SunTrust Bank, Atlanta, Atlanta, Georgia, Mail Code 008, 58
Edgewood Avenue, Room 400-Annex, Atlanta, Georgia 30303, telephone
(404)588-7191.
Subject to the duty of the Trustee during default to act with the required
standard of care, the Indenture provides that the Trustee will be under no
obligation to exercise any right or power under the Indenture at the request of
the Holders of the Securities unless said Holders shall have offered the Trustee
reasonable indemnity (Section 7.03). The Indenture also provides that, subject
to the provisions for indemnification described above and subject to certain
other conditions, the Holders of a majority in principal amount of the
Outstanding Securities of any series may direct 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 with respect to the Securities of
such series (Section 6.12).
The Indenture contains a covenant requiring BancGroup to file annually with
the Trustee a certificate as to the absence of any default or specifying any
default that may exist (Section 4.04).
In addition to serving as Trustee under the Indenture, SunTrust Bank,
Atlanta, provides ordinary correspondent banking products and services to
BancGroup and certain of its subsidiaries, including deposit accounts, and
serves as transfer agent for BancGroup's outstanding common stock. The Trustee
is also currently serving as Trustee under an Indenture dated March 25, 1986
pursuant to which at December 31, 1996, $7,187,000 in aggregate principal amount
of BancGroup's 7 1/2% Convertible Subordinated Debentures is outstanding. Should
a conflict of interest arise by reason of such service, the trustee may be
required, or deem it necessary, to resign as Trustee under the Indenture and be
replaced by a successor Trustee.
PLAN OF DISTRIBUTION
BancGroup may offer and sell Securities to or through underwriters, acting
as principals for their own accounts or as agents, and also may offer and sell
Securities directly to other purchasers. Any underwriters or agents in
connection with Offered Securities will be named in the related Prospectus
Supplement and any underwriting compensation paid to such underwriters or agents
will be set forth therein. Such underwriters may include a single firm or may be
a group of underwriters represented by such firm, Unless otherwise indicated in
the Prospectus Settlement, any underwriters will be required to purchase all of
the Offered Securities if any are purchased.
9
<PAGE> 12
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from BancGroup and from purchasers of Securities for whom they may
act as agents, in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters and any discounts or commissions
received by them and any profit on the resale of Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Under agreements which may be entered into with BancGroup, underwriters,
dealers and agents who participate in the distribution of the Offered Securities
may be entitled to indemnification by BancGroup against certain liabilities,
including liabilities under the Securities Act, or contribution with respect to
payments which the underwriters, dealers or agents may be required to make in
respect thereof. Underwriters, dealers and agents may be customers of, engage in
transactions with, or perform services for BancGroup and its subsidiaries in the
ordinary course of business.
If so indicated in the Prospectus Supplement, BancGroup will authorize
dealers or other persons acting as BancGroup's agents to solicit offers by
certain institutions to purchase Offered Securities from BancGroup pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery on a
future date or dates stated in the Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate amount of Offered Securities sold
pursuant to Contracts shall not be less than nor more than, the respective
amounts stated in the Prospectus Supplement. Institutions with which Contracts
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and others,
but in all cases such institutions must be approved by BancGroup. The
obligations of any purchaser under any Contract will not be subject to any
conditions except that (a) the purchase of the Offered Securities shall not at
the time of delivery be prohibited under the laws of any jurisdiction to which
such purchaser is subject, and (b) if the Offered Securities are also being sold
to underwriters, BancGroup will have sold to such underwriters the Offered
Securities not sold for delayed delivery. The dealers and such other persons
acting as agents of BancGroup will not have any responsibility in respect of the
validity or performance of Contracts.
EXPERTS
Coopers & Lybrand L.L.P. serves as the independent accountants for
BancGroup. The consolidated financial statements of BancGroup as of December 31,
1996 and 1995 and for each of the three years ended December 31, 1996 are
incorporated by reference in this Prospectus in reliance upon the report of such
firm, given on the authority of that firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters regarding the Securities offered hereby are being
passed upon by the law firm of Miller, Hamilton, Snider & Odom, L.L.C., Mobile,
Alabama, of which John C. H. Miller, Jr., a director of BancGroup and of
Colonial Bank, is a partner. John C. H. Miller, Jr. beneficially owns 40,480
shares of BancGroup Common Stock. Mr. Miller also received employee-related
compensation from BancGroup in 1996 of $41,000. Miller, Hamilton, Snider & Odom,
L.L.C. received legal fees from BancGroup for services performed for BancGroup
in 1996 of $1,474,856.
10
<PAGE> 13
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE OR TO MAKE
ANY REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION
WITH THE OFFER CONTAINED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY BANCGROUP OR
BY THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OFFERED HEREIN IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF BANCGROUP SINCE THE DATE HEREOF
OR THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information....................................... 2
Documents Incorporated by Reference......................... 2
Business of BancGroup....................................... 3
Use of Proceeds............................................. 4
Consolidated Ratios of Earnings to Fixed Charges............ 4
Description of Securities................................... 5
Plan of Distribution........................................ 9
Experts..................................................... 10
Legal Matters............................................... 10
</TABLE>
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
Securities being registered, other than underwriting compensation, are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 30,303
Blue Sky fees and expenses.................................. 10,000
Attorney's fees and expenses................................ 20,000
Accounting services......................................... 15,000
Printing and engraving...................................... 30,000
Fees of indenture trustee................................... 35,000
Miscellaneous............................................... 7,500
--------
Total............................................. $147,803
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to section 145 of the Delaware General Corporation Law, as
amended, and the Restated Certificate of Incorporation of the Registrant,
officers, directors, employees, and agents of the Registrant are entitled to
indemnification against liabilities incurred while acting in such capacities on
behalf of the Registrant, including reimbursement of certain expenses. In
addition, the Registrant maintains an officers and directors insurance policy
pursuant to which officers and directors of the Registrant are entitled to
indemnification against certain liabilities, including reimbursement of certain
expenses, and the Registrant has indemnity agreements ("Indemnification
Agreements") with certain officers and all of its directors pursuant to which
such persons may be indemnified by the Registrant against certain liabilities,
including expenses.
The Indemnification Agreements are intended to provide additional
indemnification to directors and officers of BancGroup beyond the specific
provisions of the Delaware General Corporation Law. Under the Delaware General
Corporation Law, a company may indemnify its directors and officers in
circumstances other than those under which indemnification and the advance of
expenses are expressly permitted by applicable statutory provisions.
Under the Delaware General Corporation Law, a director, officer, employee
or agent of a corporation (i) must be indemnified by the corporation for all
expenses incurred by him (including attorneys' fees) when he is successful on
the merits or otherwise in defense of any action, suit or proceeding brought by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, (ii) may be indemnified by the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement of
any such proceeding (other than a proceeding by or in the right of the
corporation) even if he is not successful on the merits if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interest of the corporation (and, in the case of a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful), and (iii) may be
indemnified by the corporation for expenses (including attorneys' fees) incurred
by him in the defense or settlement of a proceeding brought by or in the right
of the corporation, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation;
provided that no indemnification may be made under the circumstances described
in clause (iii) if the director, officer, employee or agent is adjudged liable
to the corporation, unless a court determines that, despite the adjudication of
liability but in view of all of the circumstances, he is fairly and reasonably
entitled to indemnification for the expenses which the court shall deem proper.
The indemnification described in clauses (ii) and (iii) above (unless ordered by
a court) may be made only as authorized in a specific case upon determination by
(i) a majority of a quorum of disinterested directors, (ii) independent legal
counsel in a written opinion, or (iii) the stock holders, that indemnification
is proper in the circumstances because the applicable standard of conduct has
been met. Expenses (including attorneys' fees) incurred by an officer or
director in defending a proceeding may be advanced by the corporation prior to
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<PAGE> 15
the final disposition of the proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay the advance if it is ultimately
determined that he is not entitled to be indemnified by the corporation.
Expenses (including attorneys' fees) incurred by other employees and agents may
be advanced by the corporation upon terms and conditions deemed appropriate by
the board of directors.
The indemnification provided by the Delaware General Corporation Law has at
least two limitations that are addressed by the Indemnification Agreements: (i)
BancGroup is under no obligation to advance expenses to a director or officer,
and (ii) except in the case of a proceeding in which a director or officer is
successful on the merits or otherwise, indemnification of a director or officer
is discretionary rather than mandatory.
The Indemnification Agreements, therefore, cover any and all expenses
(including attorneys' fees and all other charges paid or payable in connection
therewith) incurred in connection with investigating, defending, being a witness
or participating in (including an appeal), or preparing to defend, be a witness
in or participate in, any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether civil, criminal,
administrative or otherwise, related to the fact that such director or officer
is or was a director, officer, employee or agent of BancGroup or is or was
serving at the request of BancGroup as a director, officer, employee, agent,
partner, committee member or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by such director or officer in any such capacity.
The Indemnification Agreements also provide for the prompt advancement of
all expenses incurred in connection with any proceeding and obligate the
director or officer to reimburse BancGroup for all amounts so advanced if it is
subsequently determined, as provided in the Indemnification Agreements, that the
director or officer is not entitled to indemnification.
The Indemnification Agreements further provide that the director or officer
is entitled to indemnification for, and advancement of, all expenses (including
attorneys' fees) incurred in any proceeding seeking to collect from BancGroup an
indemnity claim or advancement of expenses under the Indemnification Agreements,
BancGroup's Certificate of Incorporation, or the Delaware General Corporation
Law, regardless of whether the director or officer is successful in such
proceeding.
The Indemnification Agreements impose upon BancGroup the burden of proving
that the director or officer is not entitled to indemnification in any
particular case, and the Indemnification Agreements negate certain presumptions
which might otherwise be drawn against a director or officer in certain
circumstances. Further, the Indemnification Agreements provide that if BancGroup
pays a director or officer pursuant to an Indemnification Agreement, BancGroup
will be subrogated to such director's or officer's rights to recover from third
parties.
The Indemnification Agreements stipulate that a director's or officer's
rights under such contracts are not exclusive of any other indemnity rights a
director or officer may have; however, the Indemnification Agreements prevent
double payment. The Indemnification Agreements require the maintenance of
directors' and officers' liability insurance if such insurance can be maintained
on terms, including rates, satisfactory to BancGroup.
The benefits of the Indemnification Agreements would not be available if
(i) the action with respect to which indemnification is sought was initiated or
brought voluntarily by the officer or director (other than an action to enforce
the right to indemnification under the Indemnification Agreements); (ii) the
officer or director is paid for such expense or liability under an insurance
policy; (iii) the proceeding is for an accounting of profits pursuant to Section
16(b) of the Securities Exchange Act of 1934, as amended; (iv) the conduct of
the officer or director is adjudged as constituting an unlawful personal
benefit, or active or deliberate dishonesty or willful fraud or illegality; or
(v) a court determines that indemnification or advancement of expenses is
unlawful under the circumstances.
The Indemnification Agreements would provide indemnification for
liabilities arising under the Securities Act of 1933, as amended. BancGroup has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such act and is,
therefore, unenforceable.
II-2
<PAGE> 16
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following is a list of exhibits that are included in Part II of the
Registration Statement. Such exhibits are separately indexed elsewhere in the
Registration Statement.
DESCRIPTION
<TABLE>
<S> <C> <C>
EXHIBIT 4 -- Instruments defining the rights of security holders:
(A) -- Subordinated Indenture dated as of March 31, 1997, between
the Registrant and SunTrust Bank, Atlanta, as trustee.
(B) -- All instruments defining the rights of holders of long-term
debt of the Registrant and its subsidiaries -- Not filed
pursuant to clause 4(iii) of Item 601(b) of Regulation S-K,
to be furnished upon request of the Commission.
EXHIBIT 5 -- Opinion of Miller, Hamilton, Snider & Odom, L.L.C. as to
certain legal issues relating to the securities being
registered.
EXHIBIT 12 -- Computation of Consolidated Ratios of Earnings to Fixed
Charges included in the Prospectus under the caption "Ratios
of Earnings to Fixed Charges" and incorporated herein by
reference.
EXHIBIT 23 -- Consents of experts and counsel:
(A) -- Consent of Coopers & Lybrand L.L.P.
(B) -- Consent of Miller, Hamilton, Snider & Odom, L.L.C.
EXHIBIT 24 -- Power of Attorney, filed as Exhibit 24 to the registrant's
Registration Statement on Form S-4, Registration No.
333-20291, and incorporated herein by reference.
EXHIBIT 25 -- Form T-1 Statement of Eligibility of SunTrust Bank, Atlanta,
Atlanta, Georgia as trustee under the Indenture.
</TABLE>
(b) Financial Statement Schedules
The financial statement schedules required to be included pursuant to this
Item are not included herein because they are not applicable or the required
information is shown in the financial statements or notes thereto.
ITEM 17. UNDERTAKINGS.
(a) The undersigned hereby undertakes as follows as required by Item 512 of
Regulation S-K:
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers, and controlling persons of the
Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(b) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
II-3
<PAGE> 17
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or provided to the Securities and
Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(c) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (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.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of the Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of the Registration Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Montgomery, Alabama, on
the 15th day of April, 1997.
THE COLONIAL BANCGROUP, INC.
By: /s/ ROBERT E. LOWDER
------------------------------------
Robert E. Lowder
Its Chairman of the Board of
Directors, Chief Executive Officer,
and President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ ROBERT E. LOWDER Chairman of the Board of **
- ----------------------------------------------------- Directors, President and
Robert E. Lowder Chief Executive Officer
/s/ W. FLAKE OAKLEY, IV Chief Financial Officer, **
- ----------------------------------------------------- Secretary and Treasurer
W. Flake Oakley, IV (Principal Financial Officer
and Principal Accounting
Officer)
* Director **
- -----------------------------------------------------
Young J. Boozer
* Director **
- -----------------------------------------------------
William Britton
* Director **
- -----------------------------------------------------
Jerry J. Chesser
* Director **
- -----------------------------------------------------
Augustus K. Clements, III
* Director **
- -----------------------------------------------------
Robert C. Craft
* Director **
- -----------------------------------------------------
Patrick F. Dye
* Director **
- -----------------------------------------------------
Clinton O. Holdbrooks
* Director **
- -----------------------------------------------------
D. B. Jones
</TABLE>
II-5
<PAGE> 19
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
* Director **
- -----------------------------------------------------
Harold D. King
* Director **
- -----------------------------------------------------
John Ed Mathison
* Director **
- -----------------------------------------------------
Milton E. McGregor
* Director **
- -----------------------------------------------------
John C. H. Miller, Jr.
* Director **
- -----------------------------------------------------
Joe D. Mussafer
* Director **
- -----------------------------------------------------
William E. Powell
* Director **
- -----------------------------------------------------
Donald J. Prewitt
* Director **
- -----------------------------------------------------
Jack H. Rainer
* Director **
- -----------------------------------------------------
Frances E. Roper
* Director **
- -----------------------------------------------------
Ed V. Welch
- ---------------
* The undersigned, acting pursuant to a power of attorney, has signed this Registration Statement on Form
S-3 for and on behalf of the persons indicated above as such persons' true and lawful attorney-in-fact
and in their names, places and stead, in the capacities indicated above and on the date indicated
below.
/s/ W. FLAKE OAKLEY, IV
- -----------------------------------------------------
W. Flake Oakley, IV
Attorney-in-Fact
</TABLE>
** Dated: April 15, 1997
II-6
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
- ------- ----
<S> <C> <C> <C>
Exhibit 4 -- Instruments defining the rights of security holders:........
(A) -- Subordinated Indenture dated as of March 31, 1997, between
the Registrant and SunTrust Bank, Atlanta, as trustee.......
(B) -- All instruments defining the rights of holders of long-term
debt of the Registrant and its subsidiaries -- Not filed
pursuant to clause 4(iii) of Item 601(b) of Regulation S-K,
to be furnished upon request of the Commission..............
Exhibit 5 -- Opinion of Miller, Hamilton, Snider & Odom, L.L.C. as to
certain legal issues relating to the securities being
registered..................................................
Exhibit 12 -- Computation of Consolidated Ratios of Earnings to Fixed
Charges included in the Prospectus under the caption "Ratios
of Earnings to Fixed Charges" and incorporated herein by
reference...................................................
Exhibit 23 -- Consents of experts and counsel:............................
(A) -- Consent of Coopers & Lybrand L.L.P..........................
(B) -- Consent of Miller, Hamilton, Snider & Odom, L.L.C...........
Exhibit 24 -- Power of Attorney, filed as Exhibit 24 to the registrant's
Registration Statement on Form S-4, Registration No.
333-20291, and incorporated herein by reference.............
Exhibit 25 -- Form T-1 Statement of Eligibility of SunTrust Bank, Atlanta,
Atlanta, Georgia as trustee under the Indenture.............
</TABLE>
(b) Financial Statement Schedules
The financial statement schedules required to be included pursuant to this
Item are not included herein because they are not applicable or the required
information is shown in the financial statements or notes thereto.
II-7
<PAGE> 1
EXHIBIT 4(A)
- --------------------------------------------------------------------------------
THE COLONIAL BANCGROUP, INC.
AND
SUNTRUST BANK, ATLANTA
TRUSTEE
- --------------------------------------------------------------------------------
SUBORDINATED INDENTURE
DATED AS OF MARCH 31, 1997
- --------------------------------------------------------------------------------
SUBORDINATED DEBT SECURITIES
- --------------------------------------------------------------------------------
<PAGE> 2
TIE-SHEET
Reconciliation and Tie between the Indenture dated as of March 31, 1997, and
the Trust Indenture Act of 1939. This Tie- Sheet does not constitute part of
the Indenture.
- --------------------------------------------------------------------------------
REFLECTED IN GENERAL PROVISIONS OF INDENTURE
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION SECTION
- --------------- -------
<S> <C> <C>
Section 310 (a)(1) 7.09
(a)(2) 7.09
(a)(3) 1.08
(a)(4) Not Applicable
(a)(5) 7.09
(b) 7.08
7.10
Section 311 (a) 7.05, 1.07
(b) 7.05, 1.07
Section 312 (a) 5.01
5.02(a)
(b) 5.02(b)
(c) 5.02(b)
Section 313 (a) 5.03(a)
(b) 5.03(b)
(c) 5.03(a)
5.03(c)
(d) 5.03(c)
Section 314 (a) 5.04
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
Section 315 (a) 7.01(a)
</TABLE>
<PAGE> 3
TIE-SHEET
PAGE 2
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION SECTION
- --------------- -------
<S> <C> <C>
7.01(b)
(b) 7.02
(c) 7.01(b)
(d) 701(a), 7.01(c)
(d)(1) 7.01(c)(1)
(d)(2) 7.01(c)(2)
(d)(3) 7.01(c)(3)
(e) 6.14
Section 316 (a) 1.01
(a)(1)(A) 6.02
6.12
(a)(1)(B) 6.13
(a)(2) Not Applicable
(b) 6.08
(c) 1.04
Section 317 (a)(1) 6.03
(a)(2) 6.04
(b) 4.03
7.06
Section 318 (a) 1.07
</TABLE>
<PAGE> 4
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Articles", "Sections" and certain
other items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Bankruptcy Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request", "Company Order"
and "Company Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Date of Original Issuance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Notice of Redemption" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Original Issue Discount Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Place of Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Predecessor Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Primary Federal Regulator" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Principal Office of the Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Redemption Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
i
<PAGE> 5
<TABLE>
<S> <C> <C>
"Regular Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Security" or "Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Securityholder(s)" or "Holder(s)" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Security Register" and "Security
Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Senior Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Special Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Trust Indenture Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Underwriters" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"U.S. Depository" or "Depository" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Vice President" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Voting Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.02 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.03 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.04 Acts of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.05 Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.06 Notices to Securityholders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.07 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.08 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.09 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.12 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.13 Governing Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE II
----------
SECURITY FORMS
SECTION 2.01 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.02 Form of Trustee's Certificate
of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.03 Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
-----------
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.02 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 3.03 Execution, Authentication and Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.04 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.05 Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.07 Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.08 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.09 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IV
----------
COVENANTS
SECTION 4.01 Payment of Principal, Premium, if any, and Interest . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.03 Money for Security Payments to be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.04 Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.05 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.06 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.07 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.08 Waiver of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE V
---------
SECURITYHOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
SECTION 5.01 Company to Furnish Trustee Names and
Addresses of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.02 Preservation of Information;
Communications with Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.03 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.04 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VI
----------
REMEDIES
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.02 Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
iii
<PAGE> 7
<TABLE>
<S> <C> <C>
SECTION 6.03 Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.04 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.05 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.06 Application for Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.07 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.08 Unconditional Right of Securityholders
to Receive Principal, Premium, and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.09 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII
-----------
THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.02 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.03 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.04 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.05 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.06 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.07 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.08 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.09 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.10 Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.11 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII
------------
SUPPLEMENTAL INDENTURES
SECTION 8.01 Supplemental Indentures Without
Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
iv
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<TABLE>
<S> <C> <C>
SECTION 8.02 Supplemental Indentures With Consent
of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.03 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.04 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.05 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.06 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.07 Subordination Unimpaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE IX
----------
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 9.01 Company May Consolidate, etc., Only
on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.02 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.03 Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE X
---------
SATISFACTION AND DISCHARGE
SECTION 10.01 Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.02 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE XI
----------
SINKING FUNDS
SECTION 11.01 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.02 Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.03 Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XII
-----------
REDEMPTION OF SECURITIES
SECTION 12.01 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12.02 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12.03 Selection by Trustee of Securities to
be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 12.04 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 12.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 12.06 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 12.07 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIII
------------
SUBORDINATION
SECTION 13.01 Securities Subordinated to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 13.02 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.03 Obligation of Company Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.04 Payments on Securities Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.05 Effectuation of Subordination by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.06 Knowledge of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.07 Trustee's Relation to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.08 No Impairment of Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.09 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.10 No Suspension of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE XIV
-----------
AUTHENTICATING AGENT
SECTION 14.01 Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XV
----------
MEETINGS OF SECURITYHOLDERS
SECTION 15.01 Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.02 Place of Meetings of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.03 Call and Notice of Securityholders'
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.04 Persons Entitled to Vote at
Securityholders' Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.05 Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.06 Counting Votes and Recording Action
at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 15.07 Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
</TABLE>
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<PAGE> 10
<TABLE>
<S> <C>
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 & 69
</TABLE>
vii
<PAGE> 11
THIS SUBORDINATED INDENTURE IS DATED as of March 31, 1997, between The
Colonial BancGroup, Inc., a Delaware corporation (hereinafter called the
"Company"), having its principal executive offices at One Commerce Street,
Montgomery, Alabama, and SunTrust Bank, Atlanta, duly organized and existing
under the laws of the State of Georgia, as Trustee (hereinafter called the
"Trustee"), having its principal Corporate Trust Office at 58 Edgewood Avenue,
Room 400 - Annex, Atlanta, Georgia 30303, and is entered into with reference to
the following facts and objectives.
RECITALS OF THE COMPANY
The Company has duly authorized the issuance, execution and delivery,
from time to time, of its unsecured evidences of indebtedness (hereinafter
referred to as the "Securities"), without limit as to principal amount,
issuable in one or more series, the amount and terms of each such series to be
determined as hereinafter provided; and, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, and
the Company has duly authorized the execution of this Indenture.
All things necessary to make the Securities, when executed and duly
issued by the Company and authenticated and delivered hereunder, the valid
obligations of the Company and to make this Indenture a valid agreement of the
Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, IT IS AGREED:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this instrument as originally executed. The words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision, except as otherwise indicated;
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<PAGE> 12
(2) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(3) words of the masculine, feminine or neuter gender shall be
considered to include the other genders;
(4) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meaning
assigned to them therein; and
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles.
"Act" when used with respect to any Securityholder has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall mean any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities of one or more
series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language, customarily published on each
Business Day, whether or not published on Legal Holidays, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bankruptcy Act" means Title 11 of the United States Code and any
other similar applicable Federal law.
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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<PAGE> 13
"Business Day" means each day which is neither a Saturday, Sunday nor
other day on which banking institutions in the city of Montgomery, Alabama or
the Corporate Trust Office of the Trustee is authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor person all have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor person.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President, or a Vice President, and by
its Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
58 Edgewood Avenue, Room 400 - Annex, Atlanta, Georgia 30303 or, if such office
shall not be the principal office, such other office at which at any particular
time its corporate trust business shall be administered, except that with
respect to presentation of Securities for payment or registration of transfers
and exchanges and the location of the registrar, such term means the office or
agency of the Trustee at which at any particular time its corporate agency
business shall be conducted, which at the date of original execution of this
Indenture is 58 Edgewood Avenue, Room 400 - Annex, Atlanta, Georgia 30303.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Date of Original Issuance" means with respect to any Security (or
portion thereof) the earliest date on which such Security (or portion thereof)
is issued pursuant to this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Event of Default" has the meaning specified in Section 6.01.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
3
<PAGE> 14
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, or call for redemption or otherwise.
"Notice of Redemption" means the notice contemplated by Section 12.04
by the Company to a Holder of an election to redeem all or part of a Security.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel (selected with
due care), who may (except as otherwise expressly provided in this Indenture)
be counsel for the Company and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal thereof to be due and payable on acceleration pursuant to Section
6.02.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities, provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities which have been paid pursuant to Section
3.06 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona-fide purchaser in whose hands such Securities are valid
obligations of the Company;
4
<PAGE> 15
provided, however, that in determining whether the Holders of the requisite
principal amount of Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 6.02; (ii) the principal amount of a
Security denominated in a foreign currency or currencies shall be the U.S.
dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date of original issuance
of such Security of the amount determined as provided in (i) above) of such
Security; and (iii) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly
an Officers' Certificate listing and identifying all Securities, if any, known
by the Company to be owned by or held for the account of the Company or any
other obligor upon the Securities, or any Affiliate of the Company or of such
obligor and the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein and not otherwise excluded from the provisions
hereof are Outstanding for the purpose of any such determination.
"Paying Agent" means any person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, joint tenancy, tenancy in common,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment," with respect to any Security, means the place or
places where the principal of (and premium, if any) and interest on Securities
of that series are payable as specified in or pursuant to Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of
all or a portion of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as such mutilated, destroyed, lost or stolen
Security or portion thereof.
5
<PAGE> 16
"Primary Federal Regulator" means the Company's primary federal
banking regulator (which at the date of this Indenture is the Board of
Governors of the Federal Reserve System), or any successor body or institution
performing substantially the same regulatory function with respect to the
Company and to the adequacy of its capital as said Board of Governors performs
on the date hereof.
"Principal Office of the Company" means the principal office of the
Company maintained at the address set forth in the first paragraph of this
Indenture or any other address designated by the Company in writing to the
Trustee.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to the
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date specified for such purpose as contemplated by Section 3.01.
"Responsible Officer" when used with respect to the Trustee means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice- president (whether or not designated by a word or words
added before or after the title "vice-president"), the secretary, any assistant
secretary, the treasurer, any trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers who in each
instance work in the corporate trust department of the Trustee at the Corporate
Trust Office, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" have the meaning specified in the recitals
of this Indenture.
"Securityholder(s)" or "Holder(s)" when used with respect to any
Security means the Person(s) in whose name such Security is registered in the
Security Register.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" means any indebtedness (including principal,
premium and interest) for money borrowed, or any indebtedness incurred by the
Company in connection with an acquisition by the Company or an Affiliate of the
stock or substantially all of the assets of another Person or a merger or
consolidation to which the Company or an Affiliate is a party, outstanding on
the date of execution of this Indenture as originally executed, or
6
<PAGE> 17
thereafter created, incurred or assumed, for the payment of which the Company
is at the time of determination responsible or liable as obligor, guarantor or
otherwise, and all deferrals, renewals, extensions and refundings of any such
indebtedness or obligations; provided, however, that Senior Indebtedness shall
not include (a) indebtedness as to which, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such indebtedness is subordinate in right of payment to any other
indebtedness of the Company, (b) indebtedness which by its terms refers
explicitly to the Securities issued hereunder and states that such indebtedness
shall not be senior thereto and shall be either equally subordinate and equally
junior with the Securities issued hereunder, (c) indebtedness of the Company in
respect of the Securities, and (d) the Company's 7 1/2% Convertible
Subordinated Securities due 2011, issued in 1986, which shall rank in pari
passu with the Securities.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the Outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in
force at the date as of which this instrument was executed, as such act may be
amended from time to time.
"Underwriters" means such underwriters as the Company may engage from
time to time to sell to the public one or more series of Securities.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository by the Company pursuant to Section 3.01, which
must be a clearing agency registered under the Securities Exchange Act of 1934,
as amended, and, if so provided pursuant to Section 3.01 with respect to any
Security, any successor to such Person. If at any time there should be more
than one such Person, "U.S. Depository" or "Depository" shall mean, with
respect to any Securities, the qualifying entity which has been appointed with
respect to such Securities.
"Vice President" when used with respect to the Company or the Trustee
means any
7
<PAGE> 18
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president."
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such power by reason of any contingency.
SECTION 1.02 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
8
<PAGE> 19
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such counsel's certificate or opinion is
to be provided, insofar as it related to factual matters, is based upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, and unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters upon which counsel is relying are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Securityholders may be given or taken at a meeting of Securityholders in
accordance with Article XV or may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by agent duly appointed in writing; and, except as herein otherwise
provided, such action shall become effective, in the case of meetings of
Securityholders, in accordance with section 15.06, or otherwise when such
instrument or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the 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 Indenture and (subject to
Section 7.01) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(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 the certificate of any notary public or other officer
authorized by law to take acknowledgement of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or a member of
a partnership, on behalf of such corporation or partnership, such certificate
or affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
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<PAGE> 20
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind such
Holder and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (unless otherwise herein provided) if in
writing and mailed, first class mail, postage prepaid, to the Company addressed
to it at the address of the Principal Office of the Company.
SECTION 1.06. NOTICES TO SECURITYHOLDERS; WAIVER.
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed by first class mail, postage
prepaid, to each Holder of such Securities affected by such event, at his
address as it appears on the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case, where notice to Securityholders is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed, to any
particular Securityholder shall affect the sufficiency of such notice with
respect to other Securityholders.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Securityholders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notices as required by this Indenture, then any reasonable manner of giving
notice as shall be made with the approval of the Trustee shall constitute a
sufficient giving or publication of such notice.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT.
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<PAGE> 21
If any provision hereof limits, qualifies or conflicts with another
provision which is required to be included in this Indenture, or any amendment
thereto, by any of the provisions of the Trust Indenture Act, such required
provision shall control.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and by
the Trustee shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE.
If any clause or provision of this Indenture shall be illegal, invalid
or unenforceable under present or future laws effective during the term hereof,
then it is the intention of the parties hereto that the remainder of this
Indenture shall not be affected thereby, unless inequitable, and it is also the
intention of such parties that in lieu of each clause or provision that shall
be illegal, invalid or unenforceable there shall be added as a part of this
Indenture a clause or provision as similar in terms as such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, if any, to the extent provided
in Article XIII, and the Securityholders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. LEGAL HOLIDAYS.
In any case where the date of any Interest Payment Date, Redemption
Date, or the Stated Maturity of any Security, or the last date on which a
Holder has the right to convert his Security (or the right to convert his
Security at a particular conversion price or rate) shall not be a Business Day,
then (notwithstanding any other provision of the Securities or this Indenture)
payment of the principal of (and premium, if any) or interest on, or conversion
of, any Security need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, or Stated Maturity, or on such last
date for conversion, as applicable, and no interest shall accrue for the period
from and after such date.
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SECTION 1.13. GOVERNING LAW.
This Indenture and the Securities shall be construed in accordance
with and governed by Alabama law and federal law, as applicable.
Notwithstanding anything else herein contained, the situs of the monies,
securities and other property to be held in accordance with the terms of this
Indenture (collectively, the "Trust Estate") shall be deemed to be the
Corporate Trust Office of the Trustee as to that portion of the Trust Estate
held and administered by the Trustee and the principal office of the Paying
Agent as to the portion of the Trust Estate held and administered by the Paying
Agent, and the laws of the respective states in which said Corporate Trust
Office and principal office are located shall be deemed to govern,
respectively, the execution, delivery, administration and enforceability of
this Indenture by and against the Trustee and the Paying Agent.
ARTICLE II
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
Each Security and temporary global Security issued pursuant to this
Indenture shall be in the form established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, shall have appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security, as evidenced by their execution of such
Security.
Definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.02 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Subject to Section 14.01, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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SUNTRUST BANK, ATLANTA
as Trustee
By:
-------------------------------------
Authorized Signatory
SECTION 2.03. SECURITIES IN GLOBAL FORM.
The Securities may be issued, in whole or in part, in global form. If
Securities are issuable in global form, any such Security may provide that it
shall represent the aggregate amount of Outstanding Securities from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased
or reduced to reflect exchanges. Any endorsement of any Security in global
form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company Order to be delivered pursuant to Section
3.03 or 3.04 with respect thereto. Subject to the provisions of Section 3.03
and, if applicable, Section 3.04, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously
is, delivered, any instructions by the Company with respect to a Security in
global form shall be in writing but need not comply with Section 1.02 and need
not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.07, unless otherwise
specified as contemplated by Section 3.01, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security, the Holder
of such permanent global Security.
ARTICLE III
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
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delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
XIII.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, and set forth in
an Officers' Certificate, or established in one or more indentures supplemental
hereto,
(1) the title of the Securities and the series in which
such Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such series or the Securities of such series which may
be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 2.03, 3.04, 3.05, 3.06, 8.06 or 12.07 or the terms
of such Securities);
(3) whether any Securities of the series are to be
issuable initially or otherwise in global form and, if so, (i) whether
beneficial owners of interest in any such global Security may exchange
such interest for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur if other than in the manner specified in
Section 3.05, (ii) the name of the Depository with respect to any
global Security and (iii) the manner in which interest payable on a
global Security will be paid;
(4) the date or dates, or the method, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(5) the rate or rates at which the Securities of a series
shall bear interest, if any, or the method or methods, if any, by
which such rate or rates are to be determined, the date or dates, if
any, from which such interest shall accrue or the method or methods,
if any, by which such date or dates are to be determined, the Interest
Payment Dates, if any, on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any Interest
Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(6) the place or places, if any, in addition to or other
than the City of Atlanta, State of Georgia, where the principal of
(and premium, if any) and interest, on such Securities shall be
payable;
(7) whether the Securities of the series or any of them
are to be redeemable at the option of the Company and, if so, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which
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such Securities may be redeemed, in whole or in part, at the option of
the Company;
(8) whether the Company is obligated to redeem or
purchase Securities of the series or any of them pursuant to any
sinking fund and, if so, the period or periods within which, the price
or prices at which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
the Securities of the series so redeemed or purchased;
(9) the denominations in which Securities of the series,
if any, shall be issuable if other than denominations of $1,000 and
any integral multiple thereof;
(10) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the series or any
of them which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 6.02 or the method by which such
portion is to be determined;
(11) if other than such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public or private debts, the coin or currency, composite
currencies or currency unit or units in which payment of the principal
of (and premium, if any) or interest, if any, on or in respect of the
Securities of the series or any of them shall be payable;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more currencies, currency units, composite currencies,
commodities, equity indices or other indices), and, if so, the terms
and conditions upon which and the manner in which such amounts shall
be determined and paid or payable;
(13) whether the principal of (and premium, if any) or
interest, if any, on the Securities of the series are to be payable,
at the election of the Company or any Holder thereof or otherwise, in
a currency or currencies, currency unit or units or composite currency
or currencies other than that in which such Securities or any of them
are denominated or stated to be payable, the period or periods within
which, and the other terms and conditions upon which, such election,
if any, may be made, and the time and manner of determining the
exchange rate between the currency or currencies in which such
Securities or any of them are denominated or stated to be payable and
the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities or any of them are to
be so payable;
(14) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to the
Securities of the series or
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any of them, whether or not such Events of Defaults or covenants are
consistent with the Events of Default or covenants set forth herein;
(15) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(16) if there is more than one Trustee, the identity of
the Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent and/or Authenticating Agent with respect to
the Securities of the series;
(17) whether any of the Securities of a series shall be
issued as Original Issue Discount Securities;
(18) if other than the law of the State of Alabama, the
law which will govern the terms of the Securities; and
(19) any other terms of the Securities of the series or
any of them (which terms shall not be inconsistent with the provisions
of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and Stated
Maturity, the date from which interest, if any, shall accrue and except as may
otherwise be provided by the Company in or pursuant to one or more Board
Resolutions and set forth in such Officers' Certificate or in any indenture or
indentures supplemental hereto pertaining to such series of Securities. All
Securities of any one series need not be issued at the same time, and unless
otherwise so provided by the Company, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series were established
by action taken by or pursuant to a Board Resolution, the Board Resolution
shall be delivered to the Trustee at or prior to the delivery of the Officers'
Certificates setting forth the terms of such series.
SECTION 3.02 DENOMINATIONS.
Unless otherwise established with respect to any Securities pursuant
to Section 3.01, the Securities of each series, if any, denominated in Dollars
shall be issuable in registered form without coupons in denominations of $1,000
and any integral multiple thereof.
SECTION 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
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The Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President or one of its
Vice Presidents under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with the Board
Resolution or Resolutions and Officers' Certificate or supplemental indenture
or indentures with respect to such Securities referred to in Section 3.01 and a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order and subject to the provisions
hereof shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon,
(i) an Opinion of Counsel stating, to the effect
(a) that the form or forms and terms of such Securities,
have been established in conformity with the provisions of this
Indenture;
(b) that all conditions precedent to the authentication
and delivery of such Securities, have been complied with and that such
Securities, when completed by appropriate insertion and executed and
delivered by the Company to the Trustee for authentication pursuant to
this Indenture, and authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights generally,
and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and will
entitle the Holders thereof to the benefits of the Indenture; such
Opinion of Counsel need express no opinion as to the availability of
equitable remedies;
(c) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities have been
complied with; and
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(d) as to such other matters as the Trustee may
reasonably request; and
(ii) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such Certificate, no Event of Default with
respect to any of the Securities has occurred and is continuing.
If all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such
opinion and certificate, with appropriate modifications, shall be delivered at
or before the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issuance of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, privileges, protections, liabilities or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee or if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
2.02 and 14.01 executed by or on behalf of the Trustee or any Authenticating
Agent by the manual signature of one of its authorized representatives, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 3.04. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver in the manner provided in Section 3.03, temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denominations, substantially of the tenor of the
definitive Securities in lieu of which they are issued in registered form and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such
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series shall be exchangeable for definitive Securities upon surrender of the
temporary Securities of such series at the Principal Office of the Company
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series, the Company shall execute and the
Trustee or an Authenticating Agent shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations of the same series containing identical terms and provisions.
Unless otherwise specified as contemplated by Section 3.01 with respect to a
temporary global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities of each
series and the registration of transfers of Securities of each series. The
"Security Registrar" for the purpose of registering Securities and transfers of
Securities shall be the Trustee or any other Person from time to time
designated as such by the Company.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 4.02 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the names of the designated transferee or transferees, one or more
new Securities of the same series of any authorized denominations, of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series containing identical terms and
provisions, of any authorized denomination, of a like aggregate principal
amount, upon surrender to such office or agency of the Securities to be
exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any global Security of any series shall be
exchangeable for Securities of such series only if (i) the Securities
Depository is at any time unwilling or unable or ineligible to continue as
Securities Depository and a successor depository is not appointed by the
Company within 60 days of the date the Company is so notified in writing, (ii)
the Company executes and delivers to the Trustee a Company Order to the effect
that such global Security shall be so exchangeable, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interest for Securities of such series of like tenor and
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principal amount of any authorized form and denomination, as specified as
contemplated by Section 3.01, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be exchanged, the
Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from
time to time by the Depository (which instructions shall be in writing but need
not comply with Section 1.02 or be accompanied by an opinion of Counsel), as
shall be specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or part, for
definitive Securities of the same series without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of such series
to be redeemed and ending on the relevant Redemption Date. Promptly following
any such exchange in part, such global Security shall be returned by the
Trustee to such Depository, or such other Depository in accordance with the
instructions of the Company referred to above. If a Security is issued in
exchange for any portion of a global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business of such office or agency on the related proposed date for payment
of interest or Defaulted Interest, as the case may be, interest will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security is
payable in accordance with the provisions of the Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney-in-fact duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant
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to Sections 3.04, 3.06 or 12.07 not involving any transfer. The Company shall
in any event pay any other costs associated with the delivery, by first class
mail, of a new Security to its Holder.
Except as otherwise specified as contemplated by Section 3.01, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of
Securities of such series under Section 12.03 and ending at the close of
business on the relevant Redemption Date, or (ii) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
in the case of any Security to be redeemed in part, the portion thereof not to
be redeemed.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, or if the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Security Registrar such security or indemnity as may be
required by either or both of them to save each of them harmless, then, in the
absence of notice to the Company or the Security Registrar that such Security
has been acquired by a bona fide purchaser or other transferee, the Company
shall (i) execute, and upon its request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of the same series of like tenor and principal
amount, bearing a number not contemporaneously outstanding, or (ii) case any
such mutilated, destroyed, lost or stolen Security has become or is to become
due and payable within sixty days following the date on which the issuance of
new Securities is requested, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Security Registrar) connected
therewith. The Company shall, however, pay any costs associated with the
delivery by first class mail of any new Securities to the Holder thereof.
Every new Security of any series, issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.07. PAYMENT OF INTEREST.
Unless otherwise specified as contemplated by Section 3.01, interest
on any Security which is payable, and is punctually paid, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more predecessor Securities) is registered on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities affected (or their
respective Predecessors Securities) are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 nor less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class mail, postage prepaid, to each
Securityholder at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any such
securities exchange in which the Securities may be listed, and upon such notice
as may be required by such exchange, if after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
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At the option of the Company, interest on Securities of any series
that bear interest may be paid by mailing a check by first class mail to the
address of the person entitled thereto as such address shall appear in the
Security Register.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Security,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 3.05 and 3.07) interest on, such Security, and
for all other purposes whatsoever, whether or not such Security be overdue and
neither the Company, the Trustee, nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.09. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or for credit against any sinking fund payment pursuant to
Section 11.02 shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture or as otherwise specified as contemplated
by Section 3.01. All canceled Securities held by the Trustee shall be
destroyed and, upon the request of the Company, a certificate of destruction
provided to the Company unless otherwise directed by a Company Order.
SECTION 3.10 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
COVENANTS
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SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities of that series, and this Indenture.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where the Securities may be presented or
surrendered for payment, where the Securities of that series may be surrendered
for registration of transfer or exchange, and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment of any series, for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless specified otherwise as contemplated by Section 3.01, the
Company hereby designates as the Place of Payment for each series of Securities
the Corporate Trust Office. Pursuant to Section 3.01(4) hereof, the Company
may subsequently appoint a place or places in the Borough of Manhattan, the
City of New York where such Securities may be payable.
SECTION 4.03. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent as to any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee in writing
of its action or failure so to act, and the Trustee shall be entitled to rely
thereon.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal
(and premium, if any) or interest on any Securities of that series, deposit
with (or make available to) the proper
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Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee in
writing of its action or failure so to act, and the Trustee shall be entitled
to rely thereon.
The Company will cause each Paying Agent for any series of Securities,
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal (and
premium, if any) or interest on Securities of that series, in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any payment
of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease and all liability
of the Company as trustee thereof shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be mailed
by first class mail a notice to each Holder of such Security for such series at
his last known address as reflected in the Security Register and, if the sum
deposited with the Trustee with respect to any such Holder exceeds $1,000, such
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notice shall state that such money remains unclaimed and that after a date
specified therein, which shall be not less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 4.04. STATEMENT AS TO COMPLIANCE.
(a) The Company will deliver to the Trustee within 120 days after
the end of each fiscal year of the Company, which as of the date hereof ends on
December 31 of each year, a written statement signed by the Chairman of the
Board, the President or a Vice President and by the Treasurer, an Assistant
Treasurer or the chief financial officer of the Company, stating, as to each
signer thereof, that
(1) he has read this Indenture and is familiar with its terms,
(2) a review of the activities of the Company during such year and
of performance under this Indenture has been made under his supervision, and
(3) to the best of his knowledge, based on such review, the
Company has fulfilled all of its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to the signer and the nature and
status thereof.
(b) The Company will deliver to the Trustee, within 10 days after
the occurrence thereof, written notice of any event which after lapse of time
or giving of notice or both, would become an Event of Default.
SECTION 4.05. CORPORATE EXISTENCE.
Subject to Article IX, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if
the Company shall reasonably determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the
Securityholders.
SECTION 4.06. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon income, profits or property of the Company or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge
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or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 4.07. MAINTENANCE OF PROPERTIES.
The Company will cause all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation and
maintenance of any of its properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Securityholder.
SECTION 4.08. WAIVER OF COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 4.05 - 4.08 with respect to the
Securities of any series, if before or after the time for such compliance the
Holders of at least a majority in aggregate principal amount of the Securities
of such series at the time Outstanding shall by Act of such Holders either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 5.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee (a) semi-annually,
not more than 10 days after each Regular Record Date for each series of
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of such series as of such
Regular Record Date, and (b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 30 days prior to
the time such list is furnished; provided, however, that if and for so long as
the Trustee is the Security
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Registrar, no such list shall be required to be furnished.
SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
SECURITYHOLDERS.
(a) The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 5.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
year following the first issuance of Securities pursuant to Section 3.01
hereof, if required by Section 313(a) of the Trust Indenture Act, the Trustee
shall transmit pursuant to Section 313(c) of the Trust Indenture Act a brief
report dated as of such May 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports, if any, required by
Section 313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
SECTION 5.04. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) 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) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then it will file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of
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1934 in respect of any security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations;
(3) transmit by first class mail to all Securityholders
as their names and addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) transmit within 30 days after May 15 of each year to
the Trustee, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company as
to his or her knowledge of such obligor's compliance with all conditions and
covenants under the Indenture as determined without regard to any period of
grace or requirement of notice provided under the Indenture.
ARTICLE VI
REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Unless additional events of default with respect to Securities of any
series are added pursuant to Section 3.01 or pursuant to a supplemental
indenture under Article VIII, "Event of Default," wherever used herein with
respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, or (B) a decree or order adjudging the
Company bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the
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Company or for any substantial part of the property of the Company, or ordering
the winding-up or liquidation of the affairs of the Company and the continuance
of any such decree or order shall remain unstayed and in effect for a period of
90 consecutive days; or
(2) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or of any other
case or proceeding to be adjudicated bankrupt or insolvent, or consent of the
Company to the entry of a decree or an order for relief in an involuntary case
under any such law, or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company, or the filing by the Company of a petition
or answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of the Company or
of any substantial part of the property of the Company or the making by the
Company or a Material Subsidiary of any general assignment for the benefit of
creditors, or the failure by the Company generally to pay its debts as they
become due, or the taking of any corporate action by the Company in furtherance
of any of the foregoing; or
(3) any other Event of Default provided with respect to Securities
of such series specified as contemplated by Section 3.01.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Securities of that series Outstanding may declare the principal of, and any
accrued interest on, all the Securities of that series to be immediately due
and payable, by a notice in writing to the Company (and to the Trustee if given
by the Securityholders of that series), and upon any such declaration such
principal shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series at the time Outstanding has been made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of Securities of that series Outstanding, by written notice to
the Company and the Trustee, may rescind and annul such declaration and
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its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all
Securities of such series,
(B) the principal of (and premium, if any, on) any
Securities of such series, which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by such
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
(2) all events of Default, other than the non-payment of the
principal of Securities which have become due solely by such acceleration, have
been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on or payable in respect of any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any on) any Security at the Maturity or upon redemption
thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any), at the rate provided for in such
Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of any express trust, may, and at
the request of Holders of
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25% in aggregate principal amount of Securities of such series Outstanding
shall, promptly institute a judicial proceeding for the collection of the sums
so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or any other obligor upon
the Securities and collect the monies adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 6.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or
such lessor amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Securityholders allowed in such
judicial proceeding, and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holder of Securities to pay to the Trustee any amount due to it for the
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of
Securities any plan of
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reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder of Securities in any such proceeding.
SECTION 6.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 6.06. APPLICATION FOR MONEY COLLECTED.
Subject to the provisions of Article XIII, any money collected by the
Trustee pursuant to this Article VI shall be applied in the following order, at
the date or dates fixed by the Trustee and in case of the distribution of such
money on account of principal (and premium, if any) and interest, upon
presentation of the Securities, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: To the payment of all the amounts then due and unpaid
upon the Securities for principal (and premium, if any) 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 Securities, for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or other Person
or Persons entitled thereto.
SECTION 6.07. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of such series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made a written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, or Security to affect, disturb or prejudice the rights of any
other such Holders or Holders of Securities of any other series, or to obtain
or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
SECTION 6.08. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Sections 3.05 and 3.07) interest on or in respect of such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment and to institute suit for its enforcement, and such rights
shall not be impaired without the consent of such Holder.
SECTION 6.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
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Except as provided in Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee under this Article VI or to each
Holder of a Security is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 6.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
any acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holder of a Security may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by such
Holder, as the case may be.
SECTION 6.12. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the
rights of other Holders of Securities of such series, and
(4) such direction shall not, in the reasonable opinion
of the Trustee, expose the Trustee to personal liability.
SECTION 6.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder and its
consequences, except a default.
(1) in the payment of the principal of (or premium, if
any) or interest on
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any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article VIII cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other defaults or impair any right consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, or to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any series, or any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on or in respect of any Security on or after the
respective Maturities or Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date) or interest on any
overdue principal of any Security.
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
THE TRUSTEE
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SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under no duty other
than to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the request or the direction of the Holders of more than 50% in
aggregate principal amount of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights of powers, if it shall have
reasonable grounds for believing that repayment of such funds or
indemnity reasonably satisfactory to it against such risk or liability
is not reasonably assured to
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it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder of which
a Responsible Officer of the Trustee has knowledge with respect to the
Securities of any series, the Trustee shall transmit in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, notice of such
default hereunder unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on, or with respect to, any
Security of such series or in the payment of any sinking fund installment with
respect to the Securities of any series, the Trustee shall be protected in
withholding such notice, if any, so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of Securities of such series. For
the purpose of this Section, the term "default" means (i) any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series, and (ii) a default in the payment of
principal of or interest on the Securities of such series.
SECTION 7.03. CERTAIN RIGHTS OF TRUSTEE.
The provisions of Section 315 of the Trust Indenture Act shall apply
to the Trustee. Subject to the provisions of Sections 315(a) through 315(d) of
the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties and need not investigate any fact or matter stated therein;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
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(d) the Trustee may consult with counsel (selected with
due care) and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Securityholders pursuant to this
Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney during
regular business hours upon reasonable notice, and subject to
appropriate procedures to protect confidential information; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it by this Indenture; and
(i) the Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any
of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
SECTION 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
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Securities and perform its obligations hereunder and that the statements made
by it in a Statement of Eligibility and Qualifications on Form T-1 supplied to
the Company are true and accurate, subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 7.05. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, Security
Registrar or any agent of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, any Authenticating Agent,
Paying Agent, Security Registrar or such other agent of the Company.
SECTION 7.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law, but the Trustee shall
hold the same in trust for the persons entitled thereto. The Trustee shall be
under no liability for interest on any money received by it hereunder, except
as otherwise agreed with the Company.
SECTION 7.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time compensation
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or willful misconduct; and
(3) to indemnify the Trustee (and in the event of
resignation or removal of the Trustee any predecessor Trustee who has
resigned or has been removed) for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or willful
misconduct on its part, 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 or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
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As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities of
any series upon all property and funds held or collected by the Trustee as such
except funds held in trust for the payment of principal of (or premium, if any)
or interest on particular Securities. When the Trustee incurs expenses or
renders services after an Event of Default occurs, the expenses and
compensation for the services of the Trustee are intended to constitute
expenses of administration under any bankruptcy law or any similar Federal or
state law for the relief of debtors.
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest
as defined in the Trust Indenture Act, with respect to the Securities of any
series, the Trustee shall take such action as is required pursuant to the Trust
Indenture Act.
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be an
association or a corporation permitted by Section 310(a)(1) and (5) of the
Trust Indenture Act to act as trustee under the Trust Indenture Act and that
has a combined capital and surplus of at least $50,000,000. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of one or more series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed upon it
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under Section 310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Securityholder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
7.09 and shall fail to resign after written request therefor by the
Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or 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, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 6.14, any Securityholder who has been a
bona fide Holder of a Security of any series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of one or more
series, shall be appointed by Act of the Holders of more than 50% in aggregate
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to all Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of one or more series, shall have been so appointed
by the Company or the Securityholders and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide Holder of a
Security for a least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to all Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee with respect
to all Securities of such series by mailing written notice of such event by
first class mail, postage prepaid, to the
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Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
and the address of its principal Corporate Trust Office.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every successor Trustee appointed hereunder
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
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of amounts then due it pursuant to Section 7.07, 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. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any
act or failure to act on the part of any other Trustee hereunder, and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
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Indenture other than as hereinafter expressly set forth, and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee, to the extent contemplated by such
supplemental Indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 7.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
TRUSTEE.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, consolidation or succession to the corporate trust
business of the Trustee to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
Without the consent of the Holders of Securities, the Company when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 3.01; or
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 7.11; or
(5) to cure any ambiguity, to correct or supplement any
provisions herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture which shall not
adversely affect the interests of the Holders of the Securities of any
series in any material respect; or
(6) 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 Securities, as
herein set forth; or
(7) to add any additional Events of Default; or
(8) to modify, eliminate or add to the provisions of the
Indenture to such extent as shall be necessary to conform the
obligations of the Company and the Trustee under this Indenture to the
obligations imposed on such Person hereunder pursuant to the Trust
Indenture Act or under any similar federal statute hereafter enacted,
and any rules or regulations of the Commission thereunder; or
(9) to provide for the terms and conditions upon which
Securities which qualify as capital under rules, regulations, orders,
interpretive rulings and guidelines of the Primary Federal Regulator
as from time to time in effect may be issued and the terms and
characteristic of any such Securities; provided, however, that no such
supplemental indenture shall effect any change in any Securities which
may at the time be outstanding under this Indenture.
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(10) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons; or
(11) to modify, delete or add to any of the provisions of
this Indenture other than as contemplated by clauses (1) through (10)
of this Section, provided that any such modification, deletion or
addition shall become effective only with respect to series of
Securities established pursuant to Section 3.01 after the effective
date of such modification, deletion or addition.
SECTION 8.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or
any installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, or any premium payable
upon the redemption thereof (except as contemplated by Section 9.01
and permitted by Section 8.01(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.02 or the amount thereof provable in bankruptcy
pursuant to Section 6.04, or change the Place of Payment, coin or
currency in which any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section
4.08, Section 6.12 or Section 6.13, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent
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of the Holder of each Security affected thereby; or
(4) modify the provisions of the Indenture with respect
to the subordination of Securities in a manner adverse to the Holders.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
materially affects the Trustee's own rights, duties, privileges, protections,
liabilities or immunities under this Indenture or otherwise.
SECTION 8.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 8.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 8.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, any new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 8.07 SUBORDINATION UNIMPAIRED.
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No supplemental indenture entered into under this Article shall
modify, directly or indirectly, the provisions of Article XIII or the
definition of Senior Indebtedness in Section 1.01 in any manner that might
alter or impair the subordination of the Securities with respect to Senior
Indebtedness then outstanding, unless each holder of such Senior Indebtedness
has consented thereto in writing; provided, however, that notwithstanding any
provision to the contrary contained herein, the Trustee shall be fully
protected in relying upon an Opinion of Counsel that any supplemental indenture
complies with the provisions of this Section.
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 9.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall 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 the Company shall not permit any Person to consolidate with or
merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership, or trust, shall be organized and validly
existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all the
Securities and the performance of every covenant, duty, obligation and
warranty of this Indenture on the part of the Company to be performed
or observed; and
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which after notice or lapse of time,
or both, would become an Event of Default, shall have happened and be
continuing.
SECTION 9.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into any other Person, or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 9.01, the successor Person
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formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the Securities. Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor Person, instead
of the Company, and subject to all the terms, conditions and limitations in
this Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor Person thereafter shall cause to be signed and delivered
to the Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 9.03 OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Section 7.03, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, lease or conveyance, and any such assumption
and any such supplemental indenture, if any, complies with the provisions of
this Article and that all conditions precedent herein provided relating to such
transactions have been complied with.
ARTICLE X
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon a Company Order, this Indenture shall cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(1) either:
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(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.06; or (ii) Securities of such series
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
4.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities of such series
(i) have become due and payable, or
(ii) will become due and payable at their
Maturity within 1 year; or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited with
the Trustee, as trust funds in trust for the purpose, an amount (said amount to
be deemed to be and to be immediately due and payable to the Holders of
Securities of such series sufficient) to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, to the date of
such deposit (in the case of Securities which have become due and payable), or
to the Maturity, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met with respect to such Securities. In the event there are two or
more Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 and, if money
shall have been deposited
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with the Trustee pursuant to subclause (B) of Clause (i) of this Section, the
obligations of the Trustee under Section 10.02 and the last paragraph of
Section 4.03 shall survive.
SECTION 10.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 4.03, all
money deposited with the Trustee pursuant to Section 10.01 shall be held in
trust and applied by it in accordance with the provisions of the Securities and
this Indenture to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto of the principal (and premium, if
any), and any interest for whose payment such money has been deposited with the
Trustee, but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE XI
SINKING FUNDS
SECTION 11.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 11.02. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 11.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Each such Security shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be
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reduced accordingly. If as a result of the delivery or credit of Securities of
any series in lieu of cash payments pursuant to this Section 11.02, the
principal amount of Securities of such series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment; provided, however,
that the Trustee or such Paying Agent shall, at the request of the Company,
from time to time pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Securities of that series purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
SECTION 11.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 11.02 and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to
the Trustee any Securities to be so credited and not theretofore delivered. If
such Officers' Certificate shall specify an optional amount to be added in cash
to the next ensuing mandatory sinking fund payment, the Company shall thereupon
be obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 12.03 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
12.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 12.06 and
12.07.
ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.01. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the election of the Company
or otherwise as permitted or required by the terms of such Securities, shall be
made in accordance with the terms of such Securities and (except as otherwise
provided herein or pursuant hereto) this Article.
SECTION 12.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
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The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of the Securities of any series with the same issue date, interest
rate and Stated Maturity, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of the Securities of such series to be redeemed.
SECTION 12.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue
date, interest rate, Stated Maturity and other terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Securities of such series;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security of such series not redeemed to less than the
minimum denomination for a Security of such series established herein or
pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar, if not the Trustee, in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which have been or are to be
redeemed.
SECTION 12.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified pursuant to Section 3.01, to each
Holder of Securities to be redeemed, at his address appearing in the Security
Register. Failure to give notice by mailing in the manner herein provided to
the Holder of any Securities designated for redemption as a whole or in part,
or any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portion
thereof.
Any notice that is mailed to the Holder of any Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on
and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining
unredeemed;
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed
only, against tender of such Security and, if applicable, that
interest thereon shall cease to accrue on and after said date;
(6) the place or places where such Securities, maturing
after the Redemption Date, are to be surrendered for payment
of the Redemption Price; and
(7) that the redemption is for the sinking fund, if such
is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 12.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 4.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 12.06. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as provided in Section 12.04,
the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall
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cease to bear interest. Upon surrender of any such Securities for redemption
in accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest on Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 12.07. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 4.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument or transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depositary or
other depository for such Security in global form as shall be specified in the
Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE XIII
SUBORDINATION
SECTION 13.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of Securities, by
his acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Securities and the payment of the principal of (and premium,
if any) and interest payable in respect thereof is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right
of payment to the prior payment in full of Senior Indebtedness.
Anything in this Indenture or in the Securities of any series to the
contrary notwithstanding, the indebtedness evidenced by the Securities shall be
subordinate and
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junior in right of payment, to the extent and in the manner hereinafter set
forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization,
arrangement or other similar proceedings in connection therewith,
relative to the Company, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding-up of the Company,
whether or not involving insolvency or bankruptcy, then the holders of
Senior Indebtedness shall be entitled to receive payment in full of
all principal of, and premium and interest on all Senior Indebtedness,
or provision shall be made for such payment, before the Holders of the
Securities are entitled to receive any payment on account of
principal, premium, if any, interest upon the Securities, and to that
end the holders of Senior Indebtedness shall be entitled to receive
for application in payment thereof any payment or distribution of any
kind or character, whether in cash or property or securities, which
may be payable or deliverable in any such proceedings in respect of
the Securities after giving effect to any concurrent payment or
distribution in respect of such Senior Indebtedness;
(b) In the event that the Securities of any series are
declared or otherwise become due and payable before their expressed
maturity because of the occurrence of an Event of Default hereunder
(under circumstances when the provisions of the foregoing clause (a)
or the following clause (c) shall not be applicable), the holders of
Senior Indebtedness due and payable at the time such Securities so
become due and payable because of such occurrence of an Event of
Default hereunder shall, so long as such declaration has not been
rescinded and annulled pursuant to Section 6.02, be entitled to
receive payment in full of all principal of, and premium and interest
on all such Senior Indebtedness, or provision shall be made for such
payment, before the Holders of the Securities of such series are
entitled to receive any payment on account of principal of, premium,
if any, or interest on the Securities of such series; provided, that
nothing herein shall prevent the Holders of Securities from seeking
any remedy allowed at law or at equity so long as any judgement or
decree obtained thereby makes provision for enforcing this clause; and
(c) In the event that any default in the payment of
principal (and premium, if any) of or interest on indebtedness
for borrowed money constituting Senior Indebtedness beyond any
applicable grace period with respect thereto shall occur and be
continuing, if either (i) notice of such default, in writing, shall
have been given to the Company and to the Trustee by the holders of at
least 10% in principal amount of such class, kind or category of
indebtedness for borrowed money (or the representative or
representatives of such holders) provided that judicial proceedings
shall be commenced in respect of such default, within 180 days in the
case of a default in payment of principal or interest and within 90
days in the case of any default after the giving of such notice, and
provided further that only one such notice shall be given pursuant to
this Section 13.01(c) in any twelve-month period, or (ii)
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judicial proceedings shall be pending in respect of such default, the
Holders of the Securities and the Trustee for their benefit shall not
be entitled to receive any payment on account of principal, premium,
if any, or interest thereon unless payment in full on all principal
of, and premium and interest on, such Senior Indebtedness then due and
payable shall have been made or provided for. The Trustee, forthwith
upon receipt of any notice received by it pursuant to this Section
13.01 (c), shall, as soon as practicable, send notice thereof to each
Holder of Securities at the time outstanding as the names and
addresses of such Holders appear on the Security Register.
In case despite the forgoing provisions, any payment or distribution
shall, in any such event, be paid or delivered to any Holder of the Securities
or to the Trustee for their benefit before all Senior Indebtedness shall have
been paid in full, such payment or distribution shall be held in trust for and
so paid and delivered to the holders of Senior Indebtedness (or their duly
authorized representatives) until all Senior Indebtedness shall have been paid
in full.
The Company shall give written notice to the Trustee within five days
after the occurrence of any insolvency, bankruptcy, receivership, liquidation,
reorganization, arrangement or similar proceeding of the Company within the
meaning of this Section 13.01. Upon any payment or distribution of assets of
the Company referred to in this Article XIII, the Trustee, subject to the
provisions of Section 315(a) through 315(d) of the Trust Indenture Act, and the
Holders of the Securities shall be entitled to rely upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors or other
liquidating agent making such payment or distribution, delivered to the Trustee
or to the Holders of Securities, as the case may be, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XIII.
In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Section 13.01, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, as to the extent to which such person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such person under this Section 13.01, and if such
evidence is not furnished, the Trust may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
SECTION 13.02 SUBROGATION.
Upon the payment in full of all Senior Indebtedness to which the indebtedness
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evidenced by the Securities is in the circumstances subordinated as provided in
Section 13.01, the Holders of the Securities 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 applicable to such Senior
Indebtedness until all amounts owing on the Securities be paid in full, and, as
between the Company, its creditors other than the holders of such Senior
Indebtedness and the Holders of the Securities, no payment or distribution made
to the holders of Senior Indebtedness by virtue of this Article which otherwise
would have been made to the Holders of the Securities shall be deemed to be a
payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article XIII are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
SECTION 13.03 OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article XIII or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company and
its creditors other than the holders of the Senior Indebtedness and the Holders
of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any), and interest on, the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XIII of
the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article XIII, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the person entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article XIII.
SECTION 13.04 PAYMENTS ON SECURITIES PERMITTED.
Nothing contained in this Article XIII or elsewhere in this Indenture,
or in any of the Securities, shall affect the obligation of the Company to
make, or prevent the Company
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from making, payment of the principal of (or premium, if any), and interest on
the Securities in accordance with the provisions hereof and thereof, except as
otherwise provided in this Article XIII.
SECTION 13.05 EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XIII and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 13.06. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article XIII or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge
of the existence of any Senior Indebtedness, or any default in the payment of
the principal of or the premium, if any, or interest on any Senior
Indebtedness, except any Senior Indebtedness issued pursuant to an instrument
to which the Trustee hereunder is a party or pursuant to an indenture under
which the Trustee hereunder is Trustee, or of any facts which would prohibit
the making of any payment of monies to or by the Trustee, or the taking of any
other action by the Trustee, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at its Corporate Trust
Office, before 12:00 noon (Eastern Standard Time, or such other time prevailing
in the City of the Trustee's Corporate Trust Office) on the fifth Business Day
prior to the date on which such payment is due, from the Company, any Holder of
the Securities, any paying agent of the Company or the holder or representative
of any class of Senior Indebtedness who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee
to be such a holder and prior to receipt of any such written notice the Trustee
shall be entitled to assume that no such facts exist and if prior to the fifth
Business Day preceding the date upon which by the terms hereof any such moneys
may become due and payable for any purpose the Trustee shall not have received
with respect to such moneys the notice provided for in this Section, then,
anything to the contrary contained herein notwithstanding, the Trustee may
receive such moneys and/or apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary which may be
received by it on or after such date with respect to such funds; provided,
however, that no such application shall affect the obligations under this
Article of the Persons receiving such money from the Trustee.
SECTION 13.07 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
Except as otherwise provided in the Trust Indenture Act, the Trustee
shall be entitled to all the rights set forth in this Article with respect to
any Senior Indebtedness at the time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Notwithstanding anything in this
Indenture or in the Securities of any series, nothing in this
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Article XIII shall apply to claims of or payment to the Trustee under or
pursuant to Section 7.07.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XIII, and no implied covenants or
obligations with respect to the holders of 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 Senior Indebtedness and the Trustee
shall not be liable to any holder of Senior Indebtedness if it shall pay over
or deliver to Holders of Securities, the Company or any other Person monies or
assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article XIII or otherwise.
SECTION 13.08. NO IMPAIRMENT OF SUBORDINATION.
No right of any present or future holder of any Senior Indebtedness 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 which any such holder may have
or otherwise be charged with.
SECTION 13.09. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting under this Indenture, the
term, "Trustee" as used in this Article XIII shall in such case (unless the
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article XIII in addition to or in place of
the Trustee; provided, however, that Section 13.07 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 13.10. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article XIII shall limit the right of the
Trustee or the Holders of the Securities to take any action to accelerate the
maturity of the Securities pursuant to this Indenture or to pursue any rights
or remedies hereunder or under applicable law, subject to the rights, if any,
under this Article XIII of the holders, from time to time, of Senior
Indebtedness to receive the cash, property or securities receivable upon the
exercise of such rights or remedies.
60
<PAGE> 71
ARTICLE XIV
AUTHENTICATING AGENT
SECTION 14.01. AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of that series issued upon original
issue or exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 3.06, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as specified as contemplated by Section 3.01, shall at all times be a
corporation that would be permitted by Section 310(a)(1) and (5) of the Trust
Indenture Act to be able to act as a trustee under an indenture qualified under
the Trust Indenture Act, is authorized under applicable law and by its charter
to act as such and that has a combined capital and surplus of not less than
$50,000,000, computed in accordance with Section 310(a)(2) of the Trust
Indenture Act. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section. If the Authenticating Agent has or shall acquire any conflicting
interest, as defined in Section 310(b) of the Trust Indenture Act, with respect
to the Securities of any series, the Authenticating Agent shall take such
action as is required pursuant to said Section 310(b).
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 14.01, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or
61
<PAGE> 72
in the case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities, if any, of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 7.07.
The provisions of Sections 3.08, 7.03, 7.04 and 7.05 shall be
applicable to each Authenticating Agent.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
----------------------------
as Trustee
By
--------------------------
As Authenticating Agent
By
--------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an officer capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not
comply with Section 1.02) by the Company, shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
62
<PAGE> 73
ARTICLE XV
MEETINGS OF SECURITYHOLDERS
SECTION 15.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any direction to the Trustee, or to waive or consent to the
waiving of any Event of Default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to
any of the provisions of Article VI;
(2) to remove the Trustee or appoint a successor trustee,
pursuant to the provisions of Article VII;
(3) to consent to the execution of any indenture or
indentures supplemental hereto pursuant to the provisions of Sections
8.01 and 8.02; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount
of the Securities under any other provision of this Indenture or under
applicable law.
SECTION 15.02. PLACE OF MEETINGS OF SECURITYHOLDERS.
Meetings of Holders of Securities of any series may be held at such
place as the Trustee or, in case of its failure to act, the Company or the
Holders of Securities of any series calling the meeting, shall from time to
time determine.
SECTION 15.03. CALL AND NOTICE OF SECURITYHOLDERS' MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series to be held at such time and at such place in the
location designated in accordance with Section 15.02 as the Trustee shall
determine. Notice of every meeting of the Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed by the Trustee by
first class mail, postage prepaid to each Securityholder at his address as
shown on the Security Register not less than 20 nor more than 60 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, or the Holders of at least
10% in aggregate principal amount of the Securities then Outstanding of any
series, shall have requested the Trustee to call a meeting of the Holders of
Securities of such series by written request
63
<PAGE> 74
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first giving of notice of such
meeting within 45 days after receipt of such request, then the Company or the
Holders of Securities of such series in the amount above specified may
determine the time and the place in the location designated in accordance with
Section 15.02 for such meeting and may call such meeting to take any action
authorized in Section 15.01 by giving notice thereof as provided in subsection
(a) of this Section.
SECTION 15.04. PERSONS ENTITLED TO VOTE AT SECURITYHOLDERS' MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (i) a Holder of one or more Outstanding Securities of
such series, or (ii) a Person appointed by an instrument in writing in form and
substance satisfactory to the Trustee as proxy for a Holder or Holders of
Outstanding Securities of such series, by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series, shall be the Persons entitled to vote at
such meeting, their counsel, any representatives of the Trustee, its counsel,
any representative of the Company, its counsel and any Person selected by a
majority of the Outstanding Securities.
SECTION 15.05. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of any series, in regard to proof of the
holding of Outstanding Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Outstanding Securities shall be proved in the
manner specified in Section 1.04 and the appointment of any proxy shall be
proved in the manner specified in Section 1.04. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.04 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in subsection (b) of Section
15.03, in which case the Company or the Securityholders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Holders of a majority of the Securities represented at the meeting
and entitled to vote.
(c) At any meeting each Securityholder or proxy shall be entitled
to one vote for
64
<PAGE> 75
each $1,000 principal amount of Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as Securityholder or proxy.
(d) At any meeting of Securityholders, the presence of Persons
holding or representing Outstanding Securities in an aggregate principal amount
sufficient under the appropriate provision of the Indenture to take action upon
the business for the transaction of which such meeting was called shall
constitute a quorum. Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.03 may be adjourned from time to time by vote of
the Holders (or proxies for the Holders) of a majority of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 15.06. COUNTING VOTES AND RECORDING ACTION AT MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Outstanding Securities of such
series or of their representatives by proxy and the serial number or numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports, in duplicate, of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was published or mailed as provided in Section 15.03.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the matters therein
stated.
SECTION 15.07. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment
65
<PAGE> 76
of such meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any such adjourned
meeting shall be given as provided in Section 15.03(a), except that such notice
need be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of such an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 8.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series, provided, however, that, except as limited by the proviso to Section
8.02, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is other than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series appertaining thereto,
whether or not present or represented at the meeting.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and in the same instrument.
66
<PAGE> 77
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.
THE COLONIAL BANCGROUP, INC.
By:
-------------------------
Its:
-------------------
ATTEST:
- ------------------------------
Its Secretary
(SEAL)
SUNTRUST BANK, ATLANTA,
as Trustee
By:
-------------------------
Its:
-------------------
ATTEST:
- ------------------------------
Its
---------------------------
(SEAL)
67
<PAGE> 78
STATE OF ALABAMA )
) ss
COUNTY OF MONTGOMERY )
On the ____ day of ___________, 1997, before me personally came Robert E.
Lowder, to me known, who, being by me duly sworn, did depose and say that he is
Chairman, President and Chief Executive Officer of The Colonial BancGroup,
Inc., a Delaware corporation, one of the persons described in and who executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporation's seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed the name of The Colonial BancGroup, Inc. thereto by like authority.
--------------------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires:
--------------------------------
68
<PAGE> 79
STATE OF ____________ )
) ss
COUNTY OF ___________ )
On the ____ day of ___________, 1997, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is a __________________ of SunTrust Bank, Atlanta, a Georgia banking
corporation; one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such association's seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed the
name of SunTrust Bank, Atlanta, thereto by like authority.
--------------------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires:
--------------------------------
69
<PAGE> 1
EXHIBIT 5
April 15, 1997
Montgomery Office
The Colonial BancGroup, Inc.
P. O. Box 1108
Montgomery, AL 36101
Re: Registration Statement on Form S-3 relating to debt securities of The
Colonial BancGroup, Inc. (the "Registration Statement").
Ladies and Gentlemen:
We are familiar with the proceedings taken and proposed to be taken in
connection with the registration under the Securities Act of 1933 (the "Act") of
$100,000,000 aggregate principal amount of subordinated debt securities (the
"Debt Securities") of The Colonial BancGroup, Inc., a Delaware corporation (the
"Corporation) and the issuance of the Debt Securities pursuant to a Subordinated
Indenture dated as of March 31, 1997 between the Corporation and SunTrust Bank,
Atlanta, as trustee (the "Indenture"). We have also acted as counsel for the
Company in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933 of the Registration
Statement on Form S-3 referred to in the caption above.
In this connection and in order to render this opinion, we have examined
such records, agreements, instruments, documents, and certificates of officers
and employees of the Corporation as appropriate. In all such examinations, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to the original
documents of documents submitted to us as certified or photostatic copies. We
have relied on certificates issued to us by the secretaries of state and other
appropriate government officials of the various states in which the Corporation
is incorporated or qualified and, except as expressly set forth in any such
documents or hereinafter, we have assumed the authority of the person or persons
who have executed any such documents on behalf of any person or persons, state
or any other entity.
Upon the basis of the foregoing, we are of the opinion that:
(1) The Corporation is a corporation duly organized and validly
existing under the laws of the State of Delaware;
(2) When:
(i) the Registration Statement relating to the Debt Securities has
become effective under the Act;
(ii) any prospectus and supplemental prospectus as may be required
under the Act have been properly delivered to purchasers of Debt
Securities; and
(iii) the Debt Securities have been duly executed and authenticated
in accordance with the Indenture and issued and delivered as
contemplated in the Registration Statement;
(A) the Debt Securities will constitute valid and legally
binding obligations of the Corporation, 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, and
(B) under the laws of the State of Delaware, no personal
liability attaches to the ownership of the Debt Securities.
<PAGE> 2
We give no opinion as to the laws of any jurisdiction other than general
corporation law of the State of Delaware and the laws of the United States and
the State of Alabama. We are licensed to practice law only in the State of
Alabama.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced registration statement and to the reference to our firm in the
prospectus under the heading "Legal Matters". In consenting to the inclusion of
our opinion in the Registration Statement, we do not thereby admit that we are a
person whose consent is required pursuant to Section 7 of the Securities Act of
1933, as amended.
Sincerely yours,
MILLER, HAMILTON, SNIDER & ODOM,
L.L.C.
By: /s/ MICHAEL D. WATERS
------------------------------------
Michael D. Waters
2
<PAGE> 1
EXHIBIT 12
THE COLONIAL BANCGROUP, INC.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
-------- -------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
A. Income before income taxes,
extraordinary items and the
cumulative effect of a change
in accounting for income
taxes......................... $ 76,217 $ 69,457 $ 50,706 $ 35,191 $ 25,426
Fixed charges:
Interest expense............. 199,953 164,895 101,293 76,378 80,212
1/3 Rent expense............. 3,044 2,721 2,226 1,754 1,876
-------- -------- -------- -------- --------
B. Total fixed charges........... 202,997 167,616 103,519 78,132 82,088
-------- -------- -------- -------- --------
C. Sum of A and B................ $279,214 $237,073 $154,225 $113,323 $107,514
======== ======== ======== ======== ========
Ratio of earnings to fixed
charges (C/B)................. 1.38 1.41 1.49 1.45 1.31
</TABLE>
<PAGE> 1
EXHIBIT 23(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-3 of our report dated February 20, 1997, on our audits of the
consolidated financial statements of The Colonial BancGroup, Inc., as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996 and our report dated February 20, 1997, except for Note 2, as
to which the date is March 5, 1997, on our audits of the supplemental
consolidated financial statements of The Colonial BancGroup, Inc., as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996. We also consent to the reference to our firm under the
caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Montgomery, Alabama
April 14, 1997
<PAGE> 1
EXHIBIT 23(B)
CONSENT OF MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
CONSENT OF COUNSEL
The Colonial BancGroup, Inc.
We hereby consent to use in this Form S-3 Registration Statement of The
Colonial BancGroup, Inc., of our name in the Prospectus, which is a part of such
Registration Statement, under the heading "LEGAL MATTERS," to the summarization
of our opinion referenced therein, and to the inclusion of our opinion at
Exhibit 5 of the Registration Statement.
/s/ MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
April 15, 1997
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a
Trustee Pursuant to Section 305(b)(2) _____
SUNTRUST BANK, ATLANTA
(Exact name of trustee as specified in its charter)
Georgia Banking Corporation 58-0466330
(Jurisdiction of incorporation or organiza- (I.R.S. employer
tion if not a U.S. national bank) identification no.)
25 Park Place, N.E. 30303
Atlanta, Georgia (Zip Code)
(Address of principal executive offices)
Ronald C. Painter
SunTrust Bank, Atlanta
58 Edgewood Avenue
Room 400 - Annex
Atlanta, Georgia 30303
(404) 588-7191
(Name, address and telephone number of agent for service)
--------------------------
The Colonial Bancgroup, Inc.
(Exact name of obligor as specified in its charter)
Delaware 63-0661573
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One Commerce Street, Suite 800 36104
Montgomery, Alabama 36104 (Zip Code)
(Address of principal executive offices)
---------------------------
[Subordinated Debt]*
(Title of the indenture securities)
- -----------
* Applicable to all securities
registered pursuant to the delayed
offering registration statement.
<PAGE> 2
GENERAL
Item 1. General Information.
(a) Name and address of each examining and supervising authority to which
it is subject.
Department of Banking and Finance
State of Georgia
Atlanta, Georgia
Federal Reserve Bank of Atlanta
104 Marietta Street, N.W.
Atlanta, Georgia
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
None.
Item 3. Voting Securities of the Trustee.
Not applicable.
Item 4. Trusteeships under Other Indentures.
Not applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
Not applicable.
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Not applicable.
<PAGE> 3
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Not applicable.
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Not applicable.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
Not applicable.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
Not applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
Not applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Not applicable.
Item 13. Defaults by the Obligor.
(a) Whether there is or has been a default with respect to the securities
under this indenture.
There is not and has not been any such default.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is trustee for
more than one outstanding series of securities under the indenture,
state whether there has been a default under any such indenture or
series.
There has not been any such default.
Item 14. Affiliations with the Underwriters.
Not applicable.
<PAGE> 4
Item 15. Foreign Trustee.
Not applicable.
Item 16. List of Exhibits
The additional exhibits listed below are filed herewith:
exhibits, if any, identified in parentheses are on file with
the Commission and are incorporated herein by reference as
exhibits hereto pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939, as amended, and Rule 24 of the
Commission's Rules of Practice.
<TABLE>
<CAPTION>
Exhibit
Number
- ------
<S> <C>
1 A copy of the Articles of Amendment and Restated Articles of
Incorporation as now in effect.
2 A copy of the certificate of authority of the Trustee to commence
business.
3 A copy of the authorization of the Trustee to exercise trust powers.
4 Bylaws of the Trustee.
5 Not applicable.
6 Consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939, as amended.
7 Latest report of condition of the Trustee published pursuant to law or
the requirements of its supervising or examining authority as of the
close of business on December 31, 1996.
8 Not applicable.
9 Not applicable.
</TABLE>
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, SunTrust Bank, Atlanta, a Georgia corporation, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Atlanta and the State
of Georgia, on the 15th day of April, 1997.
SUNTRUST BANK, ATLANTA
By: /s/ Ronald C. Painter
---------------------------
Ronald C. Painter
Vice President
<PAGE> 6
EXHIBIT 1
ARTICLES OF AMENDMENT AND
RESTATED ARTICLES OF INCORPORATION OF
TRUST COMPANY BANK
Pursuant to the Financial Institutions Code of Georgia, Trust Company
Bank, a Georgia banking corporation (the "Corporation" or the "Bank"), submits
Articles of Amendment and Restated Articles of Incorporation and shows as
follows:
1.
The Bank was chartered by a special act of the General Assembly of
Georgia approved on September 21, 1891 with banking and trust powers.
2.
The Bank is located in Atlanta, Fulton County, Georgia.
3.
By a written consent and waiver of notice dated May 18, 1995, the sole
shareholder of the 4,320,000 shares of Common Stock then outstanding and
entitled to vote did authorize, approve and adopt these Articles of Amendment
and Restated Articles of Incorporation of the Bank, as submitted by a Resolution
of the Board of Directors, and as set forth in Paragraph 4 below. The Bank has
only one class of stock authorized, issued and outstanding.
4.
The Articles of Incorporation of the Bank shall be amended by deleting
the phrase "Trust Company Bank" in Article 1, and replacing it with the phrase
"SunTrust Bank, Atlanta", and by restating in their entirety the Articles of
Incorporation, as heretofore amended, and substituting therefor in all respects,
the Restated Articles of Incorporation as follows:
<PAGE> 7
RESTATED ARTICLES OF INCORPORATION
1.
The name of the Bank is SunTrust Bank, Atlanta.
2.
The Bank is organized pursuant to the provisions of the Financial
Institutions Code of Georgia.
3.
The Bank shall have perpetual duration.
4.
The principal place of business of the Bank is located in Atlanta,
Fulton County, Georgia and the banking offices of the Bank are located in the
Georgia counties of Fulton, DeKalb and Cherokee. The Bank may establish branches
or agencies at other places in Georgia or elsewhere. The address of the
registered office of the Bank is One Park Place, N.E., Atlanta, Fulton County,
Georgia 30302.
5.
The purposes for which the Bank is organized are to act as a bank and
as a trust company and to enjoy and be subject to the powers and restrictions of
a bank and a trust company under the laws of the State of Georgia, and to
conduct any other businesses, to exercise any powers, and to engage in any other
activities not specifically prohibited to corporations organized to act as a
bank and as a trust company under the laws of the State of Georgia.
6.
The aggregate number of shares which the Bank has authority to issue is
4,752,000, all of which are common shares of one class only, each such share
having a par value of $5.00.
2
<PAGE> 8
7.
No stockholder shall have any preemptive right to subscribe for or to
purchase any shares or other securities issued by the Bank.
8.
The number of directors shall be not less than eleven nor more than
twenty-five, which number shall be fixed as provided by law.
9.
9(a). No director of the Bank shall be personally liable to the
shareholders of the Bank for monetary damages for breach of his duty of care or
other duty as a director, provided that this provision shall eliminate or limit
the liability of a director only to the maximum extent permitted from time to
time by the Financial Institutions Code of Georgia or any successor law or laws.
9(b). Any repeal or modification of Article 9(a) by the shareholders
of the Bank shall not adversely affect any right or protection of a director of
the Bank existing at the time of such repeal or modification.
Said Restated Articles of Incorporation supersede the original Articles
of Incorporation as heretofore amended.
IN WITNESS WHEREOF, Trust Company Bank has caused these Articles of
Amendment and Restated Articles of Incorporation to be executed and its
corporate seal to be affixed and has
3
<PAGE> 9
caused the foregoing to be attested, all by its duly authorized officers on this
7th day of August, 1995.
TRUST COMPANY BANK
By: /s/ Edward P. Gould
-------------------------------
Edward P. Gould
Title: Chairman of the Board
By: /s/ Robert R. Long
-------------------------------
Robert R. Long
Title: President
(SEAL)
Attest: /s/ Harold Bitler
---------------------------
Harold Bitler
Title: Corporate Secretary
4
<PAGE> 10
[SEAL] STATE OF GEORGIA, DEPARTMENT OF BANKING AND FINANCE
EXHIBITS 2 AND 3
This is to certify that
SUNTRUST BANK, ATLANTA
ATLANTA, FULTON COUNTY, GEORGIA
is a state bank and trust company, approved to exercise trust powers, operating
under Articles of Incorporation (Charter) granted by this State on September 21,
1891, and since amended numerous times by the Secretary of State of Georgia. It
is validly existing at the present time and, to the best of our knowledge, its
deposits are insured by the Federal Deposit Insurance Corporation.
This the 4th day of December, 1996.
/s/ Georgia G. High
----------------------------------------
Georgia G. High, CFE
Assistant Deputy Commissioner
Corporate Division
<PAGE> 11
EXHIBIT 4
BYLAWS
(As Amended, October 10, 1995)
SUNTRUST BANKS OF GEORGIA, INC.
SUNTRUST BANK, ATLANTA
<PAGE> 12
SUNTRUST BANKS OF GEORGIA, INC.
BYLAWS
(As Amended, October 10, 1995)
ARTICLE I
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders for
the election of Directors and for the transaction of such other business as may
properly come before the meeting shall be held at such place, either within or
without the State of Georgia, on such date and at such time as the Board of
Directors may by resolution provide or if the Board of Directors fails to
provide, then such meeting shall be held at the registered office of the
Corporation at 11:00 a.m. local time on the second Tuesday in April of each
year, or, if such date is a legal holiday, on the next succeeding business day.
ARTICLE II
DIRECTORS
SECTION 1. BOARD OF DIRECTORS. The Board of Directors shall manage the
business and affairs of the Corporation and may exercise all of the powers of
the Corporation subject to any restrictions imposed by law.
SECTION 2. COMPOSITION OF THE BOARD. The Board of Directors of the
Corporation shall consist of not less than eleven (11) nor more than
twenty-five (25) natural persons, such number within those limits to be
determined by resolution of the shareholders from time to time. Each Director
shall hold office for the term for which elected, which term shall end at the
next annual meeting of shareholders subsequent to his election, and until his
successor shall have been elected and qualified, or until his earlier
retirement, resignation, removal from office, or death.
SECTION 3. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. A vacancy created
by the removal of a Director by the shareholders, as provided by law, shall be
filled by the shareholders or, if authorized by the shareholders, by a majority
vote of the remaining Directors. All other vacancies on the Board of Directors
may be filled by the Board of Directors then holding office.
SECTION 4. RETIREMENT. Each Director shall retire as a Director on the
date of the annual meeting of shareholders following the earliest of (a) the
relinquishment of the most senior position that he has held with his principal
employment or (b) the Director's
1
<PAGE> 13
retirement from his principal employment or (c) his 70th birthday, except that
(1) any Director who is also an employee of the Corporation or of an affiliate
of the Corporation shall retire as a director upon his termination or retirement
as an employee of the Corporation or of an affiliate, and such Director shall
thereafter be ineligible to serve as a Director and (2) any Director who was a
Director on October 13, 1992 and who does not retire as a Director at an earlier
date under (1) above shall retire as a Director at the annual meeting of
shareholders immediately following such Director's 70th birthday.
SECTION 5. REMOVAL. At any shareholders' meeting with respect to which
notice of such purpose has been given, any Director, or all Directors, may be
removed from office at any time by the majority vote of the outstanding shares
entitled to vote.
ARTICLE III
ACTION OF THE BOARD OF DIRECTORS; COMMITTEES
SECTION 1. PLACE, TIME, NOTICE AND CALL OF DIRECTORS' MEETINGS. The
annual meeting of the Board of Directors for the purpose of electing officers
and transacting such other business as may be brought before the meeting shall
be held each year immediately following the annual meeting of shareholders.
Regular meetings of the Board of Directors shall be held on the second Tuesday
in January, April, July and October of each year. Regular meetings of the Board
of Directors may be held without notice. Special meetings of the Board of
Directors or any committee of the Board shall be held upon notice of the time
and place of such special meetings as shall be given to each Director orally,
either by telephone or in person, or in writing, either by personal delivery or
by mail, telegram, cablegram or other means of data communications at least one
day before the meeting. Notice of a meeting of the Board of Directors or any
committee of the Board need not be given to any Director who signs a waiver of
notice either before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors or any committee of the
Board need be specified in the notice or waiver of notice of such meeting unless
required by these Bylaws.
A majority of the Directors or any committee of the Board present,
whether or not a quorum exists, may adjourn any meeting of the Board of
Directors or such committee to another time and place.
Meetings of the Board of Directors or committees of the Board may be
called by the Chairman of the Board, the President or by any two Directors. A
meeting of any committee of the Board may also be called by the chairman of the
committee.
SECTION 2. QUORUM; VOTE REQUIREMENT; FEES. A majority of the number of
Directors elected and serving shall constitute a quorum for the transaction of
business:
2
<PAGE> 14
if a quorum is present, a vote of a majority of the Directors present at such
time shall be the act of the Board of Directors, unless a greater vote is
required by law, or by these Bylaws; provided, however, in no case shall the
vote of less than one-third of the total number of Directors constitute an act
of the Board. Each Director who is not also an employee of the Corporation or of
an affiliate shall receive fees as determined from time to time by the Board of
Directors.
SECTION 3. ACTION BY DIRECTORS WITHOUT A MEETING; PARTICIPATION IN
MEETING BY TELEPHONE. Except as limited by law, any action to be taken at a
meeting of the Board, or by any committee of the Board, may be taken without a
meeting if written consent, setting forth the action so taken, shall be signed
by all the members of the Board or such committee and shall be filed with the
minutes of the proceedings of the Board or such committee.
Members of the Board or any committee of the Board may participate in a
meeting of the Board or such committee by means of conference telephone or
similar communications equipment by which means all persons participating in the
meeting can hear each other, and participation in a meeting of the Board or such
committee by such means shall constitute personal presence at such meeting.
SECTION 4. EXECUTIVE COMMITTEE.
(a) Establishment. There is hereby established an Executive
Committee which shall consist of not less than eight (8) Directors. The Board of
Directors shall at the Board of Directors' meeting immediately following the
Corporation's annual shareholders' meeting, and may at such other time as the
Board of Directors determine, elect the Directors who shall be members of the
Executive Committee, including the Chief Executive Officer who shall be a member
of the Executive Committee ex officio. The Executive Committee shall have and
may exercise all the authority of the Board of Directors as permitted by law.
The Board of Directors shall elect the Chairman of the Executive Committee who
shall preside at all meetings of the Executive Committee and shall perform such
other duties as may be designated by the Executive Committee. The Board of
Directors shall also elect one member of the Executive Committee as Vice
Chairman of the Executive Committee who shall preside at Executive Committee
meetings in the absence of the Chairman of the Executive Committee.
(b) Alternate Members. The Board of Directors may designate
one or more Directors as alternate members of the Executive Committee, who may
act in the place and stead of any absent member or members at any meeting of the
Executive Committee.
(c) Vacancies. The Board of Directors may fill any vacancy or
vacancies occurring in the Executive Committee.
3
<PAGE> 15
(d) Quorum. The Executive Committee shall act by a majority of
its members.
SECTION 5. AUDIT COMMITTEE.
(a) Establishment. There is hereby established an Audit
Committee which shall consist of not less than five (5) Directors. No Director
who is an employee of the Corporation or of any affiliate of the Corporation
shall be eligible to be a member of the Audit Committee. The Board of Directors
shall at the Board of Directors' meeting immediately following the Corporation's
annual shareholders' meeting, and may at such other time as the Board of
Directors determine, elect the members of the Audit Committee. The Board of
Directors shall elect the Chairman of the Audit Committee who shall preside at
all meetings of the Audit Committee and shall perform such other duties as may
be designated by the Audit Committee.
(b) Vacancies. The Board of Directors may fill any vacancy or
vacancies occurring in the Audit Committee.
(c) Quorum. The Audit Committee shall act by a majority of its
members.
SECTION 6. OTHER COMMITTEES. The Board of Directors may designate from
among its members one or more other committees, each consisting of two or more
Directors, and each of which to the extent provided in the resolution
establishing such committee shall have and may exercise all authority of the
Board of Directors to the extent permitted by law.
SECTION 7. ADVISORY COUNCIL. The Corporation may have an Advisory
Council elected each year by the Board of Directors at the annual meeting of
the Board of Directors upon the recommendation of the Chairman of the Board.
The number of Advisory Council members serving on the Advisory Council
may be increased or decreased from time to time by the Board of Directors, and
any Advisory Council position to be filled by reason of a vacancy or an increase
in the Number of Advisory Council members may be filled at any time by the Board
of Directors.
The Advisory Council shall give such advice to the Board of Directors
as it deems appropriate. Each Advisory Council member shall receive fees as
determined by the Board of Directors from time to time.
4
<PAGE> 16
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE STRUCTURE. The Board of Directors shall elect one
or more officers with such titles and designations, including a Chief Executive
Officer and a Corporate Secretary, as the Board of Directors may deem necessary.
The Chief Executive Officer may appoint any number of additional officers of the
level of Vice President and below with such titles and designations as he may
deem necessary. All officers shall serve a term of office which runs until the
meeting of the Board of Directors following the next annual meeting of
shareholders and shall hold office until a successor is elected or appointed,
unless removed as provided in these Bylaws or by law.
SECTION 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
by virtue of such designation by the Board of Directors, be the most senior
officer of the Corporation, and all other officers and agents of the Corporation
shall be subject to his direction. He shall be accountable to the Board of
Directors for the fulfillment of his duties and responsibilities and, in the
performance and exercise of all his duties, responsibilities and powers, he
shall be subject to the supervision and direction of, and any limitations
imposed by, the Board of Directors. The Chief Executive Officer shall be
responsible for interpretation and required implementation of the policies of
the Corporation as determined and specified from time to time by the Board of
Directors and he shall be responsible for the general management and direction
of the business and affairs of the Corporation. For the purpose of fulfilling
his duties and responsibilities, the Chief Executive Officer shall have, subject
to these Bylaws and the Board of Directors, plenary authorities and powers,
including general executive powers, the authority to delegate and assign duties,
responsibility and authorities, and, in the name of the Corporation and on its
behalf, to negotiate and make any agreements, waivers or commitments which do
not require the express approval of the Board of Directors.
SECTION 3. CORPORATE SECRETARY. Due notice of all meetings of the
shareholders and Directors shall be given by the Corporate Secretary or the
person or persons calling such meeting. The Corporate Secretary shall report the
proceedings of all meetings in a book of minutes and shall perform all the
duties pertaining to his office including authentication of corporate documents
and shall have custody of the Seal of the Corporation. Any Assistant Secretary
may perform all duties of the Corporate Secretary.
SECTION 4. OTHER DUTIES AND AUTHORITY. Each officer, employee and agent
of the Corporation shall have such other duties and authority as may be
conferred upon him by the Board of Directors or delegated to him by the Chief
Executive Officer.
SECTION 5. REMOVAL OF OFFICERS. Any officer may be removed by the Board
of Directors or the Chief Executive Officer with or without cause whenever it is
judged
5
<PAGE> 17
that the best interests of the Corporation will be served thereby. In addition,
an officer of the Corporation shall cease to be an officer upon ceasing to be an
employee of the Corporation or of an affiliate.
ARTICLE V
SEAL
The Corporate Seat shall be in such form as the Board of Directors may
from time to time direct and adopt by resolution of the Board. Any officer shall
have authority to affix the Corporate Seal to any document requiring such seal,
and to attest the same.
ARTICLE VI
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
SECTION 1. INDEMNIFIED PARTIES; RELIANCE. Every person (and the heirs
and personal representatives of such person) who is or was a director, officer
or employee of the Corporation, or of any other entity in which he served as
such at the request of the Corporation, may be indemnified by the Corporation in
accordance with the provisions of this Article VI against any and all liability
and reasonable expense (including, without limitation, counsel fees and
disbursements, and amounts of judgments, fines or penalties against, or amounts
paid in settlement by, a director, officer or employee) that may be incurred by
him in connection with or resulting from any claim, action, suit or proceeding,
whether civil, criminal, administrative or investigative, or in connection with
any appeal relating thereto, in which he may become involved, as a party or
otherwise, or with which he may be threatened, by reason of his being or having
been a director, officer or employee of the Corporation or such other entity or
by reason of any action taken or omitted by him in his capacity as such
director, officer or employee, whether or not he continues to be such at the
time such liability or expense shall have been incurred. Each person who shall
act as a director, officer or employee of the Corporation or of any other entity
referred to in this Section shall be deemed to be doing so in reliance upon the
right of indemnification provided for in this Article VI.
SECTION 2. INDEMNIFICATION AS OF RIGHT. Every person (and the heirs and
personal representatives of such person) referred to in Section 1 of this
Article VI who has been wholly successful on the merits with respect to any
claim, action, suit or proceeding of the character described in Section 1, shall
be entitled to indemnification as of right.
SECTION 3. INDEMNIFICATION BASED ON REVIEW. Except as provided in
Section 2 of this Article VI, any indemnification under this Article VI shall be
made:
6
<PAGE> 18
(A) In the case of a claim, action, suit or proceeding other than by or
in the right of the Corporation to procure a judgment in its favor,
only if the Board of Directors or the Executive Committee of such
Board, acting by a quorum consisting of directors who are not parties
to such claim, action, suit or proceeding, shall find, or independent
legal counsel (who may be the regular counsel of the Corporation) shall
render an opinion, or the shareholders by the affirmative vote of a
majority of the shares entitled to vote thereon shall determine, that
the director, officer or employee acted in good faith in what he
reasonably believed to be the best interests of the Corporation or such
other entity, as the case may be, and, in addition, in any criminal
action or proceeding, had no reasonable cause to believe that his
conduct was unlawful; and
(B) In the case of a claim, action, suit or proceeding by or in the
right of the Corporation to procure a judgment in its favor, only if
the Board of Directors or the Executive Committee of such Board, acting
by a quorum consisting of directors who are not parties to such claim,
action, suit or proceeding, shall find, or independent legal counsel
(who may be the regular legal counsel of the Corporation) shall render
an opinion, or the shareholders by the affirmative vote of the majority
of the shares entitled to vote thereon shall determine, that the
director, officer or employee acted in good faith in what he reasonably
believed to be the best interests of the Corporation or such other
entity, as the case may be; provided, however, that no indemnification
under this Subsection (B) shall be made with regard to (1) any claim,
issue or matter as to which such director, officer or employee shall
have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought
shall determine that, despite the adjudication of liability but in view
of all the circumstances of the case, such director, officer or
employee is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper, or (2) amounts paid, or
expenses incurred, in connection with the settlement of any such claim,
action, suit or proceeding, without the approval of a court of
competent jurisdiction.
For the purpose of Subsection (A) only, the termination of any claim,
action, suit or proceeding, civil, criminal, administrative, or investigative,
by judgment, settlement (either with or without court approval) or conviction,
upon a plea of guilty or of nolo contendere or its equivalent, shall not create
a presumption that a director, officer or employee did not meet the standards of
conduct set forth in such Subsection.
SECTION 4. ADVANCES. Expenses incurred with respect to any claim,
action, suit or proceeding of the character described in this Article VI may be
advanced by the Corporation prior to the final disposition thereof upon receipt
of an undertaking by or on behalf of the recipient to repay such amount unless
it shall be ultimately determined that he is entitled to indemnification under
this Article VI.
7
<PAGE> 19
SECTION 5. INDEMNIFICATION NOT EXCLUSIVE. The rights of
indemnification provided in this Article VI shall be in addition to any rights
to which any such director, officer, employee or other person may otherwise be
entitled by contract or as a matter of law.
ARTICLE VII
AMENDMENT OF BYLAWS
The Board of Directors shall have the power to alter, amend or repeal
the Bylaws or adopt new Bylaws, but any Bylaws adopted by the Board of Directors
may be altered, amended or repealed and new Bylaws adopted by the shareholders.
8
<PAGE> 20
SUNTRUST BANK, ATLANTA
BYLAWS
(AS AMENDED, OCTOBER 10, 1995)
ARTICLE I
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders for
the election of Directors and for the transaction of such other business as may
properly come before the meeting shall be held at such place, either within or
without the State of Georgia, on such date and at such time as the Board of
Directors may by resolution provide or if the Board of Directors fails to
provide, then such meeting shall be held at the registered office of the Bank at
11:00 a.m. local time on the second Tuesday in April of each year, or, if such
date is a legal holiday, on the next succeeding business day.
ARTICLE II
DIRECTORS
SECTION 1. BOARD OF DIRECTORS. The Board of Directors shall administer
the business and affairs of the Bank and may exercise all of the powers of the
Bank subject to any restrictions imposed by law.
SECTION 2. COMPOSITION OF THE BOARD. The Board of Directors of the Bank
shall consist of not less than eleven (11) nor more than twenty-five (25)
natural persons, such number within those limits to be determined by resolution
of the shareholders from time to time. At each annual meeting of shareholders,
the shareholders shall elect Directors to hold office until the next succeeding
annual meeting. Each Director shall hold office for the term for which elected
and until his successor shall have been elected and qualified, or until his
earlier retirement, resignation, removal from office, or death.
SECTION 3. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. All vacancies on
the Board of Directors may be filled by the Board of Directors then holding
office.
SECTION 4. RETIREMENT. Each Director shall retire as a Director on the
date of the annual meeting of shareholders following the earliest of (a) the
relinquishment of the most senior position that he has held with his principal
employment or (b) the Director's retirement from his principal employment or (c)
his 70th birthday, except that (1) any Director who is also an employee of the
Bank or of an affiliate of the Bank shall retire as a director upon his
termination or retirement as an employee of the Bank or of an affiliate, and
such Director shall thereafter be ineligible to serve as a Director and (2) any
Director who was a Director on October 13, 1992 and who does not retire as a
Director
<PAGE> 21
at an earlier date under (1) above shall retire as a Director at the annual
meeting of shareholders immediately following such Director's 70th birthday.
SECTION 5. REMOVAL. Any Director, or all Directors, may be removed from
office by the shareholders at any time without cause by a majority vote of the
outstanding shareholders. In addition, any Director may be removed by the Board
of Directors as provided by law.
ARTICLE III
ACTION OF THE BOARD OF DIRECTORS; COMMITTEES
SECTION 1. PLACE, TIME, NOTICE AND CALL OF DIRECTORS' MEETINGS. The
annual meeting of the Board of Directors for the purpose of electing officers
and transacting such other business as may be brought before the meeting shall
be held each year immediately following the annual meeting of the shareholders.
Regular meetings of the Board of Directors shall be held on the second Tuesday
of January, April, July and October of each year. Regular meetings of the Board
of Directors may be held without notice. Special meetings of the Board of
Directors and meetings of committees of the Board shall be held upon notice of
the time and place of such meetings as shall be given to each Director orally,
either by telephone or in person, or in writing, either by personal delivery or
by mail, telegram, cablegram or other means of data communications at least one
day before the meeting. Notice of a meeting of the Board of Directors or any
committee of the Board need not be given to any Director who sips a waiver of
notice either before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors or any committee of the
Board need be specified in the notice or waiver of notice of such meeting unless
required by these Bylaws.
A majority of the Directors or any committee of the Board present,
whether or not a quorum, exists, may adjourn any meeting of the Board of
Directors or committee of the Board to another time and place.
Meetings of the Board of Directors or committees of the Board may be
called by the Chairman of the Board, the President or by any two Directors. A
meeting of any committee of the Board may also be called by the chairman of the
committee.
SECTION 2. QUORUM; VOTE REQUIREMENT; FEES. A majority of the number of
Directors elected and serving shall constitute a quorum for the transaction of
business; if a quorum is present, a vote of a majority of the Directors present
at such time shall be the act of the Board of Directors, unless a greater vote
is required by law, or by these Bylaws; provided, however, in no case shall the
vote of less than one-third of the total number of Directors constitute an act
of the Board. Each Director who is not also an
2
<PAGE> 22
employee of the Bank or of an affiliate shall receive fees as determined from
time to time by the Board of Directors.
SECTION 3. ACTION BY DIRECTORS WITHOUT 2 MEETING; PARTICIPATION IN
MEETING BY TELEPHONE. Except as limited by law, any action to be taken at a
meeting of the Board, or by any committee of the Board, may be taken without a
meeting if written consent, setting forth the action so taken, shall be signed
by all the members of the Board or such committee and shall be filed with the
minutes of the proceedings of the Board or such committee.
Members of the Board or any committee of the Board may participate in a
meeting of the Board or such committee by means of conference telephone or
similar communications equipment by which means all persons participating in the
meeting can hear each other, and participation in a meeting of the Board or such
committee by such means shall constitute personal presence at such meeting.
SECTION 4. EXECUTIVE COMMITTEE.
(a) Establishment. There is hereby established an Executive
Committee which shall consist of not less than eight (8) Directors. The Board of
Directors shall at the Board of Directors' meeting immediately following the
Bank's annual shareholders' meeting, and may at such other time as the Board of
Directors determine, elect the Directors who shall be members of the Executive
Committee, including the Chief Executive Officer who shall be a member of the
Executive Committee ex officio. The Executive Committee shall have and may
exercise all the authority of the Board of Directors as permitted by law. The
Board of Directors shall elect the Chairman of the Executive Committee who shall
preside at all meetings of the Executive Committee and shall perform such other
duties as may be designated by the Executive Committee. The Board of Directors
shall also elect one member of the Executive Committee as Vice Chairman of the
Executive Committee who shall preside at Executive Committee meetings in the
absence of the Chairman of the Executive Committee.
(b) Alternate Members. The Board of Directors may designate
one or more Directors as alternate members of the Executive Committee, who may
act in the place and stead of any absent member or members at any meeting of the
Executive Committee.
(c) Vacancies. The Board of Directors may fill any vacancy or
vacancies occurring in the Executive Committee.
(d) Quorum. The Executive Committee shall act by a majority of
its members.
3
<PAGE> 23
SECTION 5. TRUST COMMITTEE.
(a) Establishment. There is hereby established a Trust
Committee which shall consist of not less than six (6) Directors. The Board of
Directors shall at the Board of Directors' meeting immediately following the
Bank's annual shareholders' meeting, and may at such other time as the Board of
Directors determine, elect the Directors who shall be members of the Trust
Committee, including the Chief Executive Officer who shall be a member of the
Trust Committee ex officio. The Board of Directors shall elect the Chairman of
the Trust Committee who shall preside at all meetings of the Trust Committee and
shall perform such other duties as may be designated by the Trust Committee. The
Board of Directors shall also elect one member of the Trust Committee as Vice
Chairman of the Trust Committee who shall preside at Trust Committee meetings in
the absence of the Chairman of the Trust Committee. The Trust Committee shall
fix the policy with respect to, generally supervise and approve, all sales,
investments, exchanges and other transactions where the Bank is acting in a
fiduciary capacity, but the Trust Committee may delegate the performance of all
such duties to officers and employees of the Bank or to committees composed of
them or may employ a subsidiary or affiliate of the Bank for such duties, all in
such way and to such extent as the Trust Committee deems to be for the best
management of the funds which the Bank holds in a fiduciary capacity. No member
of the Trust Committee shall act upon any transaction in which he has an
interest except where the interest consists merely of a minor holding of
securities in a corporation in which the Director is not otherwise interested in
any way. The Trust Committee shall have and may exercise all the authority of
the Board of Directors with respect to the establishment, amendment and
termination of common and commingled trust funds maintained by the Bank for the
collective investment of funds held by the Bank and its affiliates in a
fiduciary capacity.
(b) Alternate Members. The Board of Directors may designate
one or more Directors as alternate members of the Trust Committee, who may act
in the place and stead of any absent member or members at any meeting of the
Trust Committee.
(c) Vacancies. The Board of Directors may fill any vacancy or
vacancies occurring in the Trust Committee.
(d) Quorum. The Trust Committee shall act by a majority of its
members.
SECTION 6. AUDIT COMMITTEE.
(a) Establishment. There is hereby established an Audit
Committee which shall consist of not less than five (5) Directors. No Director
who is an employee of the Bank or of any affiliate shall be eligible to be a
member of the Audit Committee. The Board of Directors shall at the Board of
Directors' meeting immediately following the Bank's annual shareholders'
meeting, and may at such other time as the Board of Directors determine, elect
the members of the Audit Committee. The Board of Directors
4
<PAGE> 24
shall elect the Chairman of the Audit Committee who shall preside at all
meetings of the Audit Committee and shall perform such other duties as may be
designated by the Audit Committee.
(b) Vacancies. The Board of Directors may fill an vacancy or
vacancies occurring in the Audit Committee.
(c) Quorum. The Audit Committee shall act by a majority of its
members.
SECTION 7. OTHER COMMITTEES. The Board of Directors may designate from
among its members one or more other committees, each consisting of three (3) or
more Directors, and each of which to the extent provided in the resolution
establishing such committee shall have and may exercise all authority of the
Board of Directors to the extent permitted by law.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE STRUCTURE. The Board of Directors shall elect one
or more officers with such titles and designations, including a Chief Executive
Officer and a Corporate Secretary, as the Board of Directors may deem necessary.
The Chief Executive Officer may appoint any number of additional officers of the
level of Vice President and below with such titles and designations as he may
deem necessary. All officers shall serve a term of office which runs until the
meeting of the Board of Directors following the next annual meeting of
shareholders and shall hold office until a successor is elected or appointed,
unless removed as provided in these Bylaws or by law.
SECTION 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
by virtue of such designation by the Board of Directors, be the most senior
officer of the Bank, and all other officers and agents of the Bank shall be
subject to his direction. He shall be accountable to the Board of Directors for
the fulfillment of his duties and responsibilities and, in the performance and
exercise of all his duties, responsibilities and powers, he shall be subject to
the supervision and direction of, and any limitations imposed by, the Board of
Directors. The Chief Executive Officer shall be responsible for interpretation
and required implementation of the policies of the Bank as determined and
specified from time to time by the Board of Directors and he shall be
responsible for the general management and direction of the business and affairs
of the Bank. For the purpose of fulfilling his duties and responsibilities, the
Chief Executive Officer shall have, subject to these Bylaws and the Board of
Directors, plenary authorities and powers, including general executive powers,
the authority to delegate and assign duties, responsibilities and authorities,
and, in the name of the Bank and on its behalf, to
5
<PAGE> 25
negotiate and make any agreements, waivers or commitments which do not require
the express approval of the Board of Directors.
SECTION 3. CORPORATE SECRETARY. Due notice of all meetings of the
shareholders and Board of Directors shall be given by the Corporate Secretary or
the person or persons calling such meeting. The Corporate Secretary shall report
the proceedings of all meetings in a book of minutes and shall perform all the
duties pertaining to his office including authentication of corporate documents
and shall have custody of the Seal of the Bank. Any Assistant Secretary may
perform all duties of the Corporate Secretary.
SECTION 4. OTHER DUTIES AND AUTHORITY. Each officer, employee and agent
of the Bank shall have such other duties and authority as may be conferred upon
him by the Board of Directors or delegated to him by the Chief Executive
Officer.
SECTION 5. REMOVAL OF OFFICERS. Any officer may be removed by the Board
of Directors or the Chief Executive Officer with or without cause whenever it is
judged that the best interests of the Bank will be served thereby. In addition,
an officer of the Bank shall cease to be an officer upon ceasing to be an
employee of the Bank or of an affiliate.
ARTICLE V
SEAL
The Corporate Seal shall be in such form as the Board of Directors may
from time to time direct and adopt by resolution of the Board. Any officer shall
have authority to affix the Corporate Seal to any document requiring such seal,
and to attest the same.
ARTICLE VI
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
SECTION 1. INDEMNIFIED PARTIES; RELIANCE. Every person (and the heirs
and personal representatives of such person) who is or was a director, officer
or employee of the Bank, or of any other entity in which he served as such at
the request of the Bank, may be indemnified by the Bank in accordance with the
provisions of this Article VI against any and all liability and reasonable
expense (including, with out limitation, counsel fees and disbursements, and
amounts of judgments, fines or penalties against, or amounts paid in settlement
by, a director, officer or employee) that may be incurred by him in connection
with or resulting from any claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative, or in connection with any appeal
relating thereto, in which he may become involved, as a party or otherwise, or
with which he may be threatened, by reason of his being or having been a
director, officer or employee of the Bank or such other entity or by reason of
any action taken
6
<PAGE> 26
or omitted by him in his capacity as such director, officer or employee, whether
or not he continues to be such at the time such liability or expense shall have
been incurred. Each person who shall act as a director, officer or employee of
the Bank or of any other entity referred to in this Section shall be deemed to
be doing so in reliance upon the right of indemnification provided for in this
Article VI.
SECTION 2. INDEMNIFICATION AS OF RIGHT. Every person (and the heirs and
personal representatives of such person) referred to in Section 1 of this
Article VI who has been wholly successful on the merits with respect to any
claim, action, suit or proceeding of the character described in Section 1, shall
be entitled to indemnification as of right.
SECTION 3. INDEMNIFICATION BASED ON REVIEW. Except as provided in
Section 2 of this Article VI, any indemnification under this Article VI shall be
made:
(A) In the case of a claim, action, suit or proceeding other than by or
in the right of the Bank to procure a judgment in its favor, only if
the Board of Directors or the Executive Committee of such Board, acting
by a quorum consisting of directors who are not parties to such claim,
action, suit or proceeding, shall find, or independent legal counsel
(who may be the regular counsel of the Bank) shall render an opinion,
or the shareholders by the affirmative vote of a majority of the shares
entitled to vote thereon shall determine, that the director, officer or
employee acted in good faith in what be reasonably believed to be the
best interests of the Bank or such other entity, as the case may be,
and, in addition, in any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful; and
(B) In the case of a claim, action, suit or proceeding by or in the
right of the Bank to procure a judgment in its favor, only if the Board
of Directors or the Executive Committee of such Board, acting by a
quorum consisting of directors who are not parties to such claim,
action, suit or proceeding, shall find, or independent legal counsel
(who may be the regular legal counsel of the Bank) shall render an
opinion, or the shareholders by the affirmative vote of the majority of
the shares entitled to vote thereon shall determine, that the director,
officer or employee acted in good faith in what he reasonably believed
to be the best interests of the Bank or such other entity, as the case
may be; provided, however, that no indemnification under this
Subsection (B) shall be made with regard to (1) any claim, issue or
matter as to which such director, officer or employee shall have been
adjudged to be liable to the Bank unless and only to the extent that
the court in which such action or suit was brought shall determine
that, despite the adjudication of liability but in view of all the
circumstances of the case, such director, officer or employee is fairly
and reasonably entitled to indemnity for such expenses which the court
shall deem proper, or (2) amounts paid, or expenses incurred, in
connection with the settlement of any such claim, action, suit or
proceeding, without the approval of a court of competent jurisdiction.
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<PAGE> 27
For the purpose of Subsection (A) only, the termination of any claim,
action, suit or proceeding, civil, criminal, administrative, or investigative,
by judgment, settlement (either with or without court approval) or conviction,
upon a plea of guilty or of nolo contendere or its equivalent, shall not create
a presumption that a director, officer or employee did not meet the standards of
conduct set forth in such Subsection.
SECTION 4. ADVANCES. Expenses incurred with respect to any claim,
action, suit or proceeding of the character described in this Article VI may be
advanced by the Bank prior to die final disposition thereof upon receipt of an
undertaking by or on behalf of the recipient to repay such amount unless it
shall be ultimately determined that he is entitled to indemnification under this
Article VI.
SECTION 5. INDEMNIFICATION NOT EXCLUSIVE. The rights of indemnification
provided in this Article VI shall be in addition to any rights to which any such
director, officer, employee or other person may otherwise be entitled by
contract or as a matter of law.
ARTICLE VII
AMENDMENT OF BYLAWS
The Board of Directors shall have the power to alter, amend or repeal
the Bylaws or adopt new Bylaws, but any Bylaws adopted by the Board of Directors
may be altered, amended or repealed and new Bylaws adopted by the shareholders.
8
<PAGE> 28
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issue of [Subordinated
Debt] by The Colonial Bancgroup, Inc., we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
SUNTRUST BANK, ATLANTA
By: /s/ Ronald C. Painter
--------------------------------
Ronald C. Painter
Vice President
Dated: April 15, 1997
<PAGE> 29
EXHIBIT 7
BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency
and coin (1) 1,029,660
b. Interest-bearing balances (2) 4,270
2. Securities:
a. Held-to-maturity securities 0
b. Available-for-sale securities 2,751,741
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries, and in
IBFs:
a. Federal funds sold 1,616,859
b. Securities purchased under agreements to resell 0
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income 8,954,622
b. LESS: Allowance for loan and lease losses 128,388
c. LESS: Allocated transfer risk reserve 0
d. Loans and Leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 8,826,234
5. Trading assets 21,298
6. Premises and fixed assets (including capitalized
leases) 92,825
7. Other real estate owned 2,676
8. Investments in unconsolidated subsidiaries and
associated companies 12,664
9. Customers' liability to this bank on acceptances
outstanding 498,447
10. Intangible assets 18,726
11. Other assets 139,663
12. Total assets (sum of items 1 through 11) 15,015,063
</TABLE>
- -----------------------
(1) Includes cash items in process of collection and unposted debits
(2) Includes time certificates of deposit not held for trading.
<PAGE> 30
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices 6,257,949
(1) Noninterest-bearing (1) 2,548,757
(2) Interest-bearing 3,709,192
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs 2,253,387
(1) Noninterest-bearing 0
(2) Interest-bearing 2,253,387
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the
bank and of its Edge and Agreement subsidiaries, and
in IBFs:
a. Federal funds purchased 2,839,392
b. Securities sold under agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money:
a. With a remaining maturity of one year or less 102,442
b. With a remaining maturity of more than one year 0
17. Mortgage indebtedness and obligations under
capitalized leases 2,483
18. Bank's liability on acceptances executed and
outstanding 498,447
19. Subordinated notes and debentures 250,000
20. Other liabilities 923,776
21. Total liabilities (sum of items 13 through 20) 13,127,876
22. Limited-Life preferred stock and related surplus 0
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock 21,601
25. Surplus (exclude all surplus related to preferred
stock) 513,406
26. a. Undivided profits and capital reserves 533,936
b. Net unrealized holding gains (losses) on
available-for-sale securities 818,244
27. Cumulative foreign currency translation adjustments 0
28. Total equity capital (sum of items 23 through 27) 1,887,187
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21, 22, and 28) 15,015,063
</TABLE>
- --------------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
