-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SFfaYhsALGVujAk6UmUqd+euITZ6SurEug7Rxuxe7gsHi7n9KwvxpOsb9kEHNtrM 0G27Q+56Bj1/CukJ2iBjzA== 0000950144-97-004443.txt : 19970421 0000950144-97-004443.hdr.sgml : 19970421 ACCESSION NUMBER: 0000950144-97-004443 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19970418 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: COLONIAL BANCGROUP INC CENTRAL INDEX KEY: 0000092339 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 630661573 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-25463 FILM NUMBER: 97583635 BUSINESS ADDRESS: STREET 1: ONE COMMERCE ST STE 800 STREET 2: P O BOX 1108 CITY: MONTGOMERY STATE: AL ZIP: 36104 BUSINESS PHONE: 3342405000 MAIL ADDRESS: STREET 1: ONE COMMERCE STREET STE 800 STREET 2: PO BOX 1108 CITY: MONTGOMERY STATE: AL ZIP: 36101 FORMER COMPANY: FORMER CONFORMED NAME: SOUTHLAND BANCORPORATION DATE OF NAME CHANGE: 19820205 S-3 1 COLONIAL BANCGROUP, INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION APRIL 18, 1997 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON D. C. 20549 --------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 THE COLONIAL BANCGROUP, INC. (Exact name of Registrant as specified in its charter) --------------------- 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)
--------------------- W. FLAKE OAKLEY, IV SECRETARY POST OFFICE BOX 1108 MONTGOMERY, ALABAMA 36102 (334) 240-5000 (Name, address and telephone no. of agent for service) --------------------- 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 --------------------- 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] --------------------- CALCULATION OF REGISTRATION FEE
====================================================================================================================== 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 - ---------------------------------------------------------------------------------------------------------------------- Debt Securities................... 100,000 $1,000(1) $100,000,000 $30,303.03 ======================================================================================================================
(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. ================================================================================ 2 THE COLONIAL BANCGROUP, INC. CROSS REFERENCE SHEET TO ITEMS IN FORM S-3
CAPTION IN PROSPECTUS OR OTHER FORM S-3 ITEM NUMBER AND CAPTION LOCATION IN REGISTRATION STATEMENT - -------------------------------- ---------------------------------- 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
3 PROSPECTUS $100,000,000 THE COLONIAL BANCGROUP, INC. SUBORDINATED DEBT SECURITIES --------------------- 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. --------------------- 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. 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 2 5 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 3 6 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).
YEAR ENDED DECEMBER 31, -------------------------------- 1996 1995 1994 1993 1992 ---- ---- ---- ---- ---- EARNINGS TO FIXED CHARGES: Excluding Interest on Deposits(1)......................... 1.38 1.41 1.49 1.45 1.31
- --------------- (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. 4 7 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 5 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. 6 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 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 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 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 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
PAGE ---- 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
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: 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 --------
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 II-1 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 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 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.
(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 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 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.
SIGNATURES TITLE DATE ---------- ----- ---- /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
II-5 19
SIGNATURES TITLE DATE ---------- ----- ---- * 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
** Dated: April 15, 1997 II-6 20 EXHIBIT INDEX
EXHIBIT PAGE - ------- ---- 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.............
(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 EX-4.(A) 2 SUBORDINATED INDENTURE 1 EXHIBIT 4(A) - -------------------------------------------------------------------------------- THE COLONIAL BANCGROUP, INC. AND SUNTRUST BANK, ATLANTA TRUSTEE - -------------------------------------------------------------------------------- SUBORDINATED INDENTURE DATED AS OF MARCH 31, 1997 - -------------------------------------------------------------------------------- SUBORDINATED DEBT SECURITIES - -------------------------------------------------------------------------------- 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
TRUST INDENTURE ACT SECTION SECTION - --------------- ------- 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)
3 TIE-SHEET PAGE 2
TRUST INDENTURE ACT SECTION SECTION - --------------- ------- 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
4 TABLE OF CONTENTS ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Page ---- 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
i 5 "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
ii 6 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
iii 7 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
iv 8 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
v 9 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
vi 10 SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 & 69
vii 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; 1 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. 2 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 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 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 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 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 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 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. 9 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. 10 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. 11 22 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. 12 23 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 13 24 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 14 25 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 15 26 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. 16 27 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 17 28 (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 18 29 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 19 30 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 20 31 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. 21 32 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. 22 33 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 23 34 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 24 35 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 25 36 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 26 37 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 27 38 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 28 39 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 29 40 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 30 41 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 31 42 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 32 43 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; 33 44 (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. 34 45 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 35 46 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 36 47 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 37 48 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; 38 49 (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 39 50 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. 40 51 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 41 52 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 42 53 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 43 54 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: 44 55 (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. 45 56 (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 46 57 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. 47 58 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 48 59 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: 49 60 (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 50 61 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 51 62 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. 52 63 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: 53 64 (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 54 65 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 55 66 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) 56 67 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 57 68 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 58 69 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 59 70 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 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 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 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 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 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 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 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 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 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 EX-5 3 OPINION OF MILLER, HAMILTON, SNIDER & ODOM 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. 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 EX-12 4 COMPUTATION OF CONSOLIDATED RATIOS 1 EXHIBIT 12 THE COLONIAL BANCGROUP, INC. RATIO OF EARNINGS TO FIXED CHARGES
1996 1995 1994 1993 1992 -------- -------- -------- -------- -------- (IN THOUSANDS) 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
EX-23.(A) 5 CONSENT OF COOPERS & LYBRAND 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 EX-23.(B) 6 CONSENT OF MILLER, HAMILTON, SNIDER & ODOM 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 EX-25 7 STATEMENT OF ELIGIBILITY OF TRUSTEE 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. 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. 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. 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.
Exhibit Number - ------ 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.
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 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: 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 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 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 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 11 EXHIBIT 4 BYLAWS (As Amended, October 10, 1995) SUNTRUST BANKS OF GEORGIA, INC. SUNTRUST BANK, ATLANTA 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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. 7 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 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 29 EXHIBIT 7 BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS - ------------------------------------------------------------------------------ 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
- ----------------------- (1) Includes cash items in process of collection and unposted debits (2) Includes time certificates of deposit not held for trading. 30
DOLLAR AMOUNTS IN THOUSANDS - ------------------------------------------------------------------------------ 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
- -------------------------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. -----END PRIVACY-ENHANCED MESSAGE-----