As filed with the Securities and Exchange Commission on October 27, 1994.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KIRBY CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 74-1884980
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
1775 St. James Place, Suite 300, Houston, Texas 77056
(713) 629-9370
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
GEORGE A. PETERKIN, JR.
President
Kirby Corporation
1775 St. James Place, Suite 300
Houston, Texas 77056
(713) 629-9370
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
HENRY GILCHRIST
Jenkens & Gilchrist, a Professional Corporation
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202-2799
THOMAS P. MASON
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Approximate date of commencement of proposed sale to the public: As
soon as possible after the Registration Statement becomes effective.
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.
CALCULATION OF REGISTRATION FEE
Title of each
class of
securities
registered Amount to be
registered (1) Proposed maximum
offering
price per unit(1) Proposed maximum
aggregate offering
price (1) Amount of
registration
fee
Debt Securities $250,000,000 100% $250,000,000 $86,207
(1) Estimated solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
KIRBY CORPORATION
Debt Securities
__________
Kirby Corporation (the "Company") may offer at any time, or from time
to time, its debt securities consisting of debentures, notes and/or other
unsecured evidences of indebtedness (the "Debt Securities") with an
aggregate initial offering price not to exceed $250,000,000. The Company
will offer the Debt Securities to the public on terms determined by market
conditions. The Debt Securities may be offered separately or together, in
separate series, in amounts, at prices and on terms to be determined at the
time of sale and to be set forth in supplements to this Prospectus. The
Debt Securities may be sold for U.S. dollars or one or more foreign or
composite currencies and the principal of, premium, if any, and interest,
if any, on the Debt Securities may likewise be payable in U.S. dollars or
one or more foreign or composite currencies.
The terms of the Debt Securities, including where applicable the
specific designation, aggregate principal amount, denominations, maturity,
rate (which may be fixed or variable) and time of payment of interest, if
any, purchase price, any terms for mandatory redemption or redemption at
the option of the Company or the holder, the initial public offering price,
and the names of any underwriters or agents and any other terms in
connection with the offering and sale of the Debt Securities in respect of
which this Prospectus is being delivered, will be set forth in the
accompanying Prospectus Supplement (the "Prospectus Supplement").
The Debt Securities may be offered through underwriters, agents or
dealers, or directly to purchasers by the Company. If an underwriter,
agent or dealer is involved in the offering of any Debt Securities, the
underwriter's discount, agent's commission or dealer's purchase price will
be described in an applicable Prospectus Supplement, and the net proceeds
to the Company from such offering will be the public offering price of the
offered Debt Securities less such discount in the case of an underwriter,
the purchase price of the offered Debt Securities in the case of a dealer,
and less, in each case, the other expenses of the Company associated with
the issuance and distribution of such Debt Securities. See "Plan of
Distribution."
__________
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.
__________
This Prospectus may not be used to consummate sales of the Debt
Securities unless accompanied by a Prospectus Supplement.
__________
The Date of this Prospectus is ___________________________, 1994.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and,
therefore, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549; at its New York Regional Office, Seven World
Trade Center, New York, New York 10048; and at its Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained at prescribed
rates, by writing to the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549. Such material can also be
inspected at the American Stock Exchange, 86 Trinity Place, New York, New
York 10006, on which the Company's Common Stock is listed.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 (together with all amendments, supplements and exhibits thereto, the
"Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus omits certain of the information set forth in the Registration
Statement (in accordance with the rules and regulations of the Commission),
and reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the Debt
Securities.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the
Commission are incorporated in and made a part of this Prospectus:
(i) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1994 and June 30, 1994; and
(ii) Annual Report on Form 10-K for the year ended December 31, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering made hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of the
Registration Statement and this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, including any beneficial owner of shares of Common
Stock, on the written or oral request of such person, a copy of any or all
of the documents incorporated by reference herein (other than exhibits to
such documents unless such exhibits are specifically incorporated by
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reference into such documents). Request for such copy or copies should be
directed to G. Stephen Holcomb, Vice President, Kirby Corporation, P.O. Box
1745, Houston, Texas 77251-1745; telephone (713) 629-9370.
THE COMPANY
General
Kirby Corporation ( Kirby or the Company ) is primarily a marine
transportation company engaged, through its subsidiaries, in the operation
of vessels on the inland waterway system of the United States and in United
States coastwise and foreign trade. Kirby is also engaged, through
subsidiaries, in diesel repair and property and casualty insurance.
The Company s principal executive offices are located at 1775 St.
James Place, Suite 300, Houston, Texas 77056-3453 and its telephone number
is (713) 629-9370. The Company s mailing address is P. O. Box 1745,
Houston, Texas 77251-1745.
Marine Transportation
The Company s marine transportation business is conducted through
three divisions, organized around the markets they serve: the Inland
Chemical Division, engaged in the inland transportation of industrial
chemicals and agricultural chemicals by tank barges; the Inland Refined
Products Division, engaged in the inland transportation of refined
petroleum products by tank barges; and the Offshore Division, engaged in
the offshore transportation of petroleum products by ocean-going tank
barges and tankers and dry bulk, container and palletized cargo by ocean-
going barges and break-bulk and container ships. The Company s marine
transportation divisions are strictly providers of transportation services
and do not assume ownership of any of the products they transport.
The Inland Chemical Division serves industrial chemical companies by
delivering petrochemical feedstocks, processed chemicals, lube oils and
agricultural chemicals to industry users. The Inland Refined Products
Division serves Gulf Coast refineries by transporting gasoline, diesel fuel
and jet fuel to waterfront terminals. Each division operates inland tank
barges to destinations along the Gulf Intracoastal Waterway, the Houston
Ship Channel, the Mississippi River and its tributaries and the Ohio River.
As of October 25, 1994, the combined fleet of these divisions consisted of
403 tank barges, 108 towing vessels and seven harbor tugboats.
The Offshore Division transports petroleum products, dry bulk,
container and palletized cargos, including agricultural commodities, to
markets worldwide, with particular emphasis on ports in the Gulf of Mexico,
along the Atlantic Seaboard, in the Caribbean Basin, South America, West
Africa and Europe. As of October 25, 1994, offshore movements of primarily
refined petroleum products were provided by ten tankers and two ocean-going
tank barge and tug units. Dry bulk cargo movements were provided by six
ocean-going barge and tug units and containers and palletized cargo
movements were provided by three break-bulk and container ships and one
ocean-going barge and tug unit.
Diesel Repair
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The Company s diesel repair business is engaged in the overhaul and
repair of diesel engines and related parts sales in two distinct markets:
the marine market, serving vessels powered by large diesel engines utilized
in the various inland and offshore marine industries; and the locomotive
market, serving the shortline and industrial railroad markets.
The marine market has five service facilities that serve the Gulf
Coast, the East Coast, the Midwest, the West Coast and the Pacific
Northwest markets. Customers in this market include the inland and
offshore barge industries, offshore petroleum and well service industry,
offshore commercial fishing industry and the United States Government.
The locomotive market is served through a facility in Nashville,
Tennessee. As an exclusive distributor for the Electromotive Division of
General Motors Corporation, the locomotive business provides replacement
parts, service and support for locomotives serving shortline and industrial
railroads within the continental United States.
Property and Casualty Insurance
The Company s property and casualty insurance business is engaged in
the writing of property and casualty insurance primarily through Universal
Insurance Company ( Universal ) in the Commonwealth of Puerto Rico. A full
service property and casualty insurer, with emphasis on the property lines
of business, Universal is ranked third among Puerto Rico insurance
companies in terms of policyholders surplus and admitted assets.
On September 25, 1992, Universal merged with Eastern America Insurance
Company ( Eastern America ), a property and casualty insurance company in
Puerto Rico, with Universal being the surviving entity. As of October 25,
1994, the Company owned approximately 58% of Universal s voting common
stock with the remaining approximately 42% owned by Eastern America
Financial Group, Inc. ( Eastern America Group ), the former parent of
Eastern America. The Company owns 100% of the non-voting common and
preferred stocks of Universal. In accordance with a 1992 shareholder
agreement among Universal, the Company and Eastern America Group, through
options and redemption rights, Universal has the right to purchase the
Company s interest in Universal over a period of up to 12 years, the result
of which would be Eastern America Group becoming the sole owner of
Universal s stock. Since December 1992, the Company has received
$15,000,000 from the redemption by Universal of its capital stock. In
August 1994, Eastern America Group purchased additional voting common stock
from Universal for a purchase price of $7,000,000.
Recent Developments
On July, 1, 1994, the Company purchased a single hull U.S. flag tanker
from Tosco Refining Company. After undergoing extensive capitalized
restorations and modifications, the tanker was placed in service in
September 1994 in the carriage of refined petroleum products in United
States coastwise trade and will operate under a three-year charter. The
tanker has a capacity of 266,000 barrels and a deadweight tonnage of 37,750
and is scheduled to be retired from service in accordance with the Oil
Pollution Act of 1990 ( OPA ) on January 1, 1999. The Company s
established bank revolving credit agreement provided funding for the
transaction.
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On July 1, 1994, the Company announced the signing of a letter of
intent to purchase from The Dow Chemical Company ( Dow ), 65 inland tank
barges, one river towboat and two shifting boats. Also, the Company will
purchase, assume with owner's consent or sublease an additional 31 inland
tank barges and two towboats presently in Dow s service. Under the terms
of the letter of intent, Dow will enter into a contract with the Company to
provide service for all of Dow s inland bulk liquid marine transportation
requirements for a period of 10 years. Dow is a major manufacturer of
petrochemicals, industrial chemicals and related bulk liquid products and
historically has used its own barges and outside towing resources to
service its inland marine transportation requirements. Dow produces its
products at its Freeport, Texas manufacturing complex, other plants in
Louisiana and at various other United States locations. A number of the Dow
plants, as well as their suppliers and customers, rely extensively on water
transportation for moving products between Dow s manufacturing facilities,
for shipment to the ultimate users and to move certain raw materials
purchased by Dow. The closing of the transaction, which is expected to
occur in the fourth quarter of 1994, is subject to the negotiation of the
necessary definitive agreements and approvals by the management of the
Company and Dow. The transaction, if consummated, will be funded by
borrowings under the Company s revolving credit agreement.
On July 21, 1994, the Company purchased three U.S. flag tankers from
OMI Corp. for $23,750,000. The single hull tankers will transport refined
petroleum products primarily between the United States Gulf Coast, Florida
and the mid-Atlantic states. Currently, one of the tankers is operating
under a six-month charter effective October 1994 and one is chartered
effective November 1994 for a one year period. The remaining tanker
operates in the spot market. Both of the charters have option periods.
Each of the tankers has a total capacity of 266,000 barrels and a
deadweight tonnage of 37,853. In accordance with the OPA, the three
tankers will be retired from service on January 1, 2000. Funding for the
transaction was provided through the Company s established bank revolving
credit agreement.
On August 1, 1994, the Board of Directors authorized the Company to
purchase up to 2,000,000 shares of its own common stock. Prior
authorization for the repurchase of the Company common stock was superseded
by this authorization. The Company is authorized to purchase the common
stock on the American Stock Exchange and in privately negotiated
transactions. When purchasing common stock, the Company is subject to
price, trading volume and other market considerations. Shares repurchased
may be used for reissuance upon the exercise of stock options, in future
acquisitions for stock or for other appropriate corporate purposes. To
date, the Company has not purchased any common stock under this
authorization.
On August 24, 1994, the Company discontinued its direct, all-water
containership service from central United States (Memphis) to Mexico and
Central America. The service was provided by the Company s wholly owned
subsidiary, Americas Marine Express, Inc. The service was met with
aggressive pricing from its competitors and the prospects for future
profitability did not warrant continuation of the service. Since inception
in February 1994, the operation incurred operating losses and anticipated
shut-down expenses of approximately $2,350,000 ($1,500,000 after taxes or
$.05 per share).
RATIO OF EARNINGS TO FIXED CHANGES
6
The following table set forth the ratio of the Company's consolidated
earnings to fixed charges for all periods presented.
Year ended December 31, Six months ended
June 30,
1993 1992 1991 1990 1989 1994 1993
4.70x 2.80x 3.84x 3.86x 3.07x 3.24x 3.90x
For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consists of earnings before taxes on income. "Fixed charges"
include interest expense on debt and one-third of the operating lease
expenses, which is considered to be representative of the interest factor.
A statement setting forth the computation of the ratio of earnings to fixed
charges for each of the periods presented above is filed as an exhibit to
the Registration Statement of which this Prospectus is a part.
7
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities offered hereby
will be used for general corporate purposes, which may include without
limitation, the repayment of indebtedness and funding future acquisitions
and working capital requirements.
DESCRIPTION OF DEBT SECURITIES
The following description summarizes certain general terms and
provisions of the Debt Securities. The particular terms of the Debt
Securities, including the nature of any variations from the following
general provisions, will be described in the Prospectus Supplement relating
to such Debt Securities.
The Debt Securities may be issued in one or more series under an
Indenture between the Company and Texas Commerce Bank National Association,
as Trustee (the "Trustee"), dated as of _____________, 1994 (the
"Indenture"). The Indenture has been filed with the Commission as an
exhibit to the Registration Statement of which this Prospectus constitutes
a part and is incorporated by reference herein.
The following summary of certain provisions of the Indenture does not
purport to be complete and is subject to, and is qualified in its entirety
by reference to, all provisions of the Indenture, including the definition
therein of certain terms. All article and section references appearing
herein are to articles and sections of the Indenture. Unless otherwise
defined herein, all capitalized terms shall have the definitions set forth
in the Indenture.
General
The Debt Securities to be issued under the Indenture will be unsecured
general obligations of the Company and will rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company from time to time
outstanding. The Debt Securities are currently limited to $250,000,000
aggregate initial offering price, or the equivalent thereof in one or more
foreign or composite currencies. The Debt Securities will not be
convertible into the common stock or any other securities of the Company.
The Debt Securities are obligations exclusively of the Company, which
is a holding company. Since the operations of the Company are currently
conducted principally through wholly-owned subsidiaries, the cash flow of
the Company, and therefore its ability to service its debt, including the
Debt Securities, is dependent in part upon the earnings of such
subsidiaries and the distribution of those earnings to the Company or upon
other payments of funds to the Company by such subsidiaries. The payment
of dividends and the provision of certain loans and advances to the Company
by such subsidiaries may be subject to certain statutory or contractual
restrictions, including financial and other restrictive covenants contained
in agreements relating to indebtedness of the Company or its subsidiaries.
In addition, the rights of the Company to participate in any
distribution of assets of any subsidiary upon its liquidation or
reorganization or otherwise (and thus the ability of Holders of the Debt
Securities to benefit from such distribution) are subject to the prior
8
claims of creditors of the subsidiary, except to the extent that the
Company may itself be a creditor with recognized claims against that
subsidiary, and to the prior claims of holders of preferred stock, if any,
issued by the Company's subsidiaries. Claims on the Company's subsidiaries
by creditors may include claims of holders of indebtedness and claims of
creditors in the ordinary course of business, including claims for trade
payables and claims for damages by tort claimants. As of June 30, 1994,
the Company's total consolidated indebtedness was approximately $120.2
million, of which approximately $73.2 million consisted of indebtedness of
the Company's subsidiaries. The amount of claims on the Company's
subsidiaries by holders of indebtedness, other creditors and tort claimants
may increase or decrease, and additional claims may be incurred in the
future. The Indenture does not limit the ability of the Company's
subsidiaries to incur indebtedness or issue preferred stock.
The Prospectus Supplement will describe the following terms of the
Debt Securities being offered: (1) the title of the Debt Securities; (2)
any limit on the aggregate principal amount of the Debt Securities; (3) the
date or dates on which the Debt Securities may be issued and the date or
dates (or the method of determination thereof) on which the principal of
(and premium, if any, on) the Debt Securities are or will be payable; (4)
the rate or rates (which may be fixed or variable) at which the Debt
Securities will bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such interest, if
any, will accrue, and the basis on which interest shall be calculated if
other than on the basis of a 360-day year of twelve 30-day months; (5) the
date or dates on which such interest, if any, on the Debt Securities will
be payable and the Regular Record Dates for any such Interest Payment
Dates; and the extent to which, or the manner in which, any interest
payable on a global Debt Security ("Global Notes") on an Interest Payment
Date will be paid if other than in the manner described under "Book-Entry
System" below; (6) each office or agency where, subject to the terms of the
Indenture as described below under "Payment and Paying Agents," the
principal of, and premium, if any, and any interest on the Debt Securities
will be payable and each office or agency where, subject to the terms of
the Indenture as described below under "Denominations, Registration and
Transfer," the Debt Securities may be presented for registration of
transfer or exchange; (7) the period or periods within which, the price or
prices at which, and the terms and conditions upon which the Debt
Securities may be redeemed at the option of the Company; (8) the
obligation, if any, of the Company to redeem, to repay or purchase the Debt
Securities at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which the Debt Securities will redeemed, repaid or purchased pursuant
to any such obligation; (9) whether the Debt Securities are to be issued
with original issue discount within the meaning of Section 1273(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder; (10) whether the Debt Securities are to be issued in whole or
in part in the form of one or more Global Notes and, if so, the identity of
the depositary, if any, for such Global Note or Notes; (11) if other than
Dollars, the Foreign Currency or Currencies or Foreign Currency Units in
which the principal of, and premium, if any, and any interest on the Debt
Securities shall or may be paid and, if applicable, whether at the election
of the Company and/or the Holder, and the conditions and manner of
determining the exchange rate or rates; (12) any index used to determine
the amount of payment of principal of and premium, if any, and any interest
on the Debt Securities; (13) any addition to, or modification or deletion
9
of, any Events of Default or covenants provided for with respect to the
Debt Securities; (14) any other detailed terms and provisions of the Debt
Securities that are not inconsistent with the Indenture (Section 301). Any
such Prospectus Supplement will also describe any special provisions for
the payment of additional amounts with respect to the Debt Securities.
The Debt Securities may be issued as Discount Securities to be sold at
a substantial discount below their principal amount. "Discount Securities"
means any Debt Securities issued with original issue discount for purposes
of the Code. Special United States income tax and other considerations
applicable to Discount Securities will be described in the Prospectus
Supplement relating thereto. Discount Securities may provide for the
declaration or acceleration of the Maturity of an amount less than the
principal amount thereof upon the occurrence of an Event of Default and the
continuation thereof (Sections 101, 502).
The Indenture provides that the Debt Securities may be issued in one
or more series thereunder, in each case as authorized from time to time by
the Board of Directors of the Company. The Indenture also provides that
there may be more than one Trustee under the Indenture, each with respect
to one or more different series of Debt Securities. At a time when two or
more Trustees are acting, each with respect to only certain series, the
term "Debt Securities" as used herein shall mean the one or more series
with respect to which each respective Trustee is acting. In the event
there is more than one Trustee under the Indenture, the powers and trust
obligations of each Trustee as described herein shall extend only to the
one or more series of Debt Securities for which it is Trustee. If more
than one Trustee is acting under the Indenture, then the Debt Securities
(whether of one or more than one series) for which each Trustee is acting
shall in effect be treated as if issued under separate indentures.
The Indenture does not contain any provisions that would limit the
ability of the Company to incur indebtedness. Reference is made to the
Prospectus Supplement related to the series of Debt Securities offered
thereby for information with respect to any deletions from, modifications
of or additions to the Events of Default or covenants of the Company
applicable to such Debt Securities that are described herein.
Under the Indenture, the Company will have the ability, in addition to
the ability to issue Debt Securities with terms different from those of
Debt Securities previously issued, without the consent of the Holders, to
reopen a previous issue of a series of Debt Securities and issue additional
Debt Securities of such series, in an aggregate principal amount determined
by the Company.
The Company will initially appoint Texas Commerce Bank National
Association to serve as Trustee under the Indenture and Chemical Bank as
Paying Agent. Texas Commerce Bank National Association, in its capacity as
Trustee, will be responsible for, among other things, transmitting to the
Company any notices or other communications from Holders and transmitting
to the Holders notice of the occurrence of any Event of Default (as defined
below) as soon as practicable after obtaining knowledge thereof. Chemical
Bank, in its capacity as Paying Agent, will be responsible for, among other
things, maintaining a record of the registration of ownership, exchange and
transfer of the Debt Securities and accepting Debt Securities for exchange
and transfer and ensuring that payments of the principal and premium, if
any, and interest received from the Company in respect of the Debt
Securities are duly paid to the registered Holders thereof.
10
Denominations, Registration and Transfer
The Debt Securities of a series may be issuable in whole or in part in
the form of one or more Global Notes, as described below under "Book-Entry
System." Unless otherwise provided in an applicable Prospectus Supplement
with respect to a series of Debt Securities, the Debt Securities will be
issuable in fully registered form and in denominations of $1,000 or any
multiple thereof. One or more Global Notes will be issued in a
denomination or aggregate denominations equal to the aggregate principal
amount of Outstanding Debt Securities of the series to be represented by
such Global Note or Notes (Sections 201, 301, 302, 304).
The Debt Securities of any series (other than a Global Note) will be
exchangeable for other Debt Securities of the same series and of a like
aggregate principal amount and tenor of different authorized denominations.
The Debt Securities may be presented for exchange as provided above, and
Debt Securities (other than a Global Note) may be presented for
registration of transfer (with the form of transfer endorsed thereon duly
executed), at the office of the Security Registrar or co-Security Registrar
designated by the Company for such purpose with respect to any series of
Debt Securities and referred to in an applicable Prospectus Supplement,
without service charge and upon payment of any taxes and other governmental
charges as described in the Indenture. Such transfer or exchange will be
effected upon the Security Registrar or co-Security Registrar being
satisfied with the documents of title and identity of the person making the
request. The Company has appointed the Trustee as Security Registrar
(Section 305).
Payment and Paying Agents
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of, and premium, if any, and any interest on the Debt
Securities will be made at the office of such Paying Agent or Paying Agents
as the Company may designate from time to time, except that at the option
of the Company payment of any interest may be made (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in
the Security Register or (ii) by wire transfer to an account maintained by
the person entitled thereto (Section 307). Payment of any installment of
interest on the Debt Securities will be made to the Person in whose name
such Debt Security is registered at the close of business on the Regular
Record Date for such interest (Section 307).
Unless otherwise indicated in an applicable Prospectus Supplement,
Chemical Bank will act as the Company's sole Paying Agent through its
office in the Borough of Manhattan, The City of New York, with respect to
the Debt Securities. Any Paying Agents outside the United States and other
Paying Agents in the United States initially designated by the Company for
the Debt Securities being offered will be named in the accompanying
Prospectus Supplement. The Company may at any time designate additional
Paying Agents or rescind the designation of any Paying Agent or approve a
change in the office through which any Paying Agent acts; provided,
however, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series.
All moneys paid by the Company to the Trustee or a Paying Agent for
the payment of principal of, and premium, if any, and any interest on any
Debt Securities that remain unclaimed at the end of two years after such
principal, premium or interest shall have become due and payable will be
11
repaid to the Company, and the Holder of such Debt Security may thereafter
look only to the Company for payment thereof (Section 1103).
Book-Entry System
The Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Notes that will be deposited with or on
behalf of a depositary located in the United States (a "Depository")
identified in the Prospectus Supplement relating to such series.
The specific terms of the depositary arrangement with respect to any
Debt Securities of a series will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following
provisions will apply to all depositary arrangements.
Unless otherwise specified in an applicable Prospectus Supplement,
Debt Securities that are to be represented by a Global Note to be deposited
with or on behalf of a Depositary will be represented by a Global Note
registered in the name of such Depositary or its nominee. Upon the
issuance of a Global Note in registered form, the Depositary for such
Global Note will credit on its book-entry registration and transfer system
the respective principal amounts of the Debt Securities represented by such
Global Note to the accounts of institutions that have accounts with such
Depositary or its nominee ("participants"). The accounts to be credited
shall be designated by the underwriters or agents of such Debt Securities
or by the Company, if such Debt Securities are offered and sold directly by
the Company. Ownership of beneficial interests in such Global Notes will
be limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in such
Global Notes will be shown on, and the transfer of that ownership interest
will be effected only through, records maintained by the Depositary or its
nominee for such Global Note. Ownership of beneficial interests in Global
Notes by persons that hold through participants will be shown on, and the
transfer of that ownership interest within such participant will be
effected only through, records maintained by such participant. The laws of
some jurisdictions require that certain purchasers of securities take
physical delivery and such securities in definitive form. Such limits and
such laws may impair the ability to transfer beneficial interests in a
Global Note.
So long as the Depositary for a Global Note, or its nominee, is the
registered owner of such Global Note, the Depositary or its nominee, as the
case may be, will be the sole Holder of the Global Notes represented
thereby for all purposes under the Indenture. Except as otherwise provided
in this section, the beneficial owners of such Global Notes will not be
entitled to receive physical delivery of Certificated Notes and will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Notes shall be exchangeable or transferrable. Accordingly, each
person owning a beneficial interest in a Global Note must rely on the
procedures of the Depositary and, if such person is not a participant, on
the procedures of the participant through which such person owns its
interest in order to exercise any rights of a Holder under the Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by a Depositary or its nominee
will be made to the Depositary or its nominee, as the case may be, as the
registered owner or the holder of the Global Note representing such Debt
Securities. None of the Company, the Trustee, any Paying Agent or the
12
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Note for such Debt
Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Company expects that the Depositary for Debt Securities of a
series, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Note, will credit immediately participants'
accounts with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such Global Note as shown
on the records of such Depositary. The Company also expects that payments
will be governed by standing instructions and customary practices, as is
now the case with the securities held for the accounts of customers
registered in "street name," and will be the responsibility of such
participants and not the Company.
A Global Note may not be transferred except as a whole by the
Depositary for such Global Note to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor (Section 304). If a Depositary
for Debt Securities of a series is at any time unwilling or unable to
continue as Depositary and a successor Depositary is not appointed by the
Company within 90 days, the Company will issue Debt Securities in
definitive registered form in exchange for the Global Note or Notes
representing such Debt Securities. In addition, the Company may at any
time and in its sole discretion determine not to have any Debt Securities
represented by one or more Global Notes and, in such event, will issue Debt
Securities in definitive registered form in exchange for all the Global
Notes representing such Debt Securities. In any such instance, an owner of
a beneficial interest in a Global Note will be entitled to physical
delivery in definitive form of Debt Securities of the series represented by
such Global Note equal in principal amount to such beneficial interest and
to have such Debt Securities registered in its name.
Covenants
The Indenture requires the Company to maintain its corporate existence
and maintain an office or agency where Debt Securities may be presented or
surrendered for payment, transfer or exchange.
The Indenture does not contain any financial performance covenants.
Consequently, the Company is not required under the Indenture to meet any
financial tests such as those that measure the Company's working capital,
interest coverage, fixed charge coverage, amount of indebtedness or net
worth in order to maintain compliance with the terms of the Indenture.
Events of Default
The following are Events of Default under the Indenture with respect
to the Debt Securities: (a) failure to pay principal of or any premium on
any Debt Security of that series when due; (b) failure to pay any interest
on any Debt Security of that series when due, continued for 30 days; (c)
failure to perform any other covenant of the Company in the Indenture
(other than a covenant included in the Indenture solely for the benefit of
a series of Debt Securities other than the series), continued for 60 days
after written notice as provided in the Indenture; (d) certain events in
13
bankruptcy, insolvency or reorganization; and (e) any other Event of
Default provided with respect to Debt Securities of that series (Section
501). If any Event of Default with respect to Debt Securities of any
series at any time Outstanding occurs and is continuing, either the Trustee
or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series may declare the principal amount
(or, if the Debt Securities of that series are Discount Securities, such
portion of the principal amount may be specified in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately. At any time after a declaration of acceleration with respect
to Debt Securities of any series has been made, but before a judgment or
decree based on acceleration has been obtained, the Holders of a majority
in aggregate principal amount of Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration
(Section 502).
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable indemnity (Section
603). Subject to such provisions for the indemnification of the Trustee,
the Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series will 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 Debt Securities of that series (Section 512).
The Company is required to furnish the Trustee annually with a
statement as to the performance by the Company of certain of its
obligations under the Indenture and as to any default in such performance
(Section 1109).
Modification and Waiver
Modifications of and amendments to the Indenture may be made by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities
of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may without the consent of
the Holder of each Outstanding Debt Security affected thereby, (a) change
the Stated Maturity of the principal of, or any installment of interest, if
any, on, any Debt Security, (b) reduce the principal amount of, or any
premium or interest on, any Debt Security, (c) reduce the amount of
principal of Discount Debt Securities payable upon acceleration of the
maturity thereof, (d) change the currency payment of principal of, or any
premium or interest on, any Debt Security, (e) impair the right to
institute suit for the enforcement of any payment on or with respect to any
Debt Security, or (f) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of
certain defaults (Section 1002).
The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of
Debt Securities of that series, waive any past default under the Indenture
with respect to Debt Securities of that series, except (i) a default in the
14
payment of principal or any premium or interest or (ii) a covenant or
provision that cannot be modified or amended without the consent of the
Holders of each Outstanding Debt Security affected thereby (Section 513).
Consolidation, Merger, Sale or Lease of Assets
The Company shall not, without the consent of the Holders of the
Outstanding Debt Securities under the Indenture, consolidate with or merge
into, or transfer or lease its assets substantially as an entirety to any
corporation organized under the laws of any domestic jurisdiction unless
(i) the successor corporation assumes the Company's obligations on the Debt
Securities and under the Indenture, (ii) immediately after giving effect to
the transactions no Event of Default, and no event which, after notice or
lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing, and (iii) certain other conditions are met
(Section 901).
Defeasance
If so specified in the Prospectus Supplement with respect to Debt
Securities of any series, the Company will be discharged from any and all
obligations in respect of the Debt Securities of such series (except for
certain obligations to register the transfer or exchange of Debt Securities
of such series, replace stolen, lost or mutilated Debt Securities of such
series, maintain paying agencies and hold moneys for payment in trust) if
the Company deposits with the Trustee, in trust, money or U.S. Government
Obligations (as defined) which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money in an
amount sufficient to pay all the principal, premium, if any, and interest
on the Debt Securities of such series on the dates such payments are due in
accordance with the terms of such Debt Securities. To exercise any such
option, the Company is required, among other things, to deliver to the
Trustee an opinion of counsel to the effect that (1) the deposit, related
defeasance and, if applicable, discharge would not cause the Holders of the
Debt Securities of such series to recognize income, gain or loss for United
States income tax purposes and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would have been
the case if such deposit, defeasance and, if applicable, discharge had not
occurred and (2) if the Debt Securities of such series are then listed on
any national securities exchange, such Debt Securities would not be
delisted from such exchange as a result of the exercise of such option
(Article Thirteen).
Notices
Notices to Holders will be given by mail to the addresses of such
Holders as they appear in the Security Register (Section 105).
Governing Law
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York (Section
111).
Concerning the Trustee
The Trustee has normal banking relationships with the Company.
15
PLAN OF DISTRIBUTION
General
The Company may sell Debt Securities to or through underwriters or a
group of underwriters, directly to other purchasers, or through dealers or
agents. The distribution of the Debt Securities may be effected from time
to time in one or more transactions at a fixed price or prices, which may
be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Each
Prospectus Supplement will describe the method of distribution, and time
and place of delivery, of the offered Debt Securities. The Company also
may, from time to time, authorize dealers, acting as the Company's agents,
to solicit offers to purchase the offered Debt Securities upon the terms
and conditions set forth in any Prospectus Supplement.
In connection with the sale of Debt Securities, underwriters, dealers
or agents may receive compensation from the Company or from purchasers of
Debt 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 Debt Securities may be deemed to be
"underwriters," and any discounts or commissions received by them and any
profit on the resale of Debt Securities by them may be deemed to be
underwriting discounts and commissions, under the Securities Act. Any such
underwriter, dealer or agent will be identified, and any such compensation
will be described, in the Prospectus Supplement relating to the offered
Debt Securities.
Under agreements that may be entered into by the Company,
underwriters, dealers and agents that participate in the distribution of
Debt Securities may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act.
Each issuance of a series of Debt Securities will constitute a new
issue of securities with no established trading market. In the event that
Debt Securities of a series offered hereunder are not listed on a national
securities exchange, certain broker-dealers may make a market in the Debt
Securities, but will not be obligated to do so and may discontinue any
market making at any time without notice. No assurance can be given that
any broker-dealer will make a market in the Debt Securities of any series
or as to the liquidity of the trading market for such Debt Securities.
Delayed Delivery Arrangement
If so indicated in the Prospectus Supplement relating to offered Debt
Securities, the Company will authorize dealers or other persons acting as
the Company's agents to solicit offers by certain institutions to purchase
Debt Securities from the Company pursuant to contracts providing for
payment and delivery on a future date. Institutions with which such
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 the Company. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of Debt
Securities shall not at the time of delivery be prohibited under the laws
of the jurisdiction to which such purchaser is subject. The dealers and
such other agents will not have any responsibility in respect of the
validity or performance of such contracts.
16
LEGAL OPINIONS
Certain matters with respect to the validity of the Debt Securities
offered hereby will be passed upon for the Company by Jenkens & Gilchrist,
a Professional Corporation, Dallas, Texas, and for any underwriters,
dealers or agents, as the case may be, by Andrews & Kurth L.L.P., Houston,
Texas.
EXPERTS
The financial statements and schedules of the Company and consolidated
subsidiaries as of December 31, 1992 and 1993 and for the years then ended,
incorporated by reference in this Prospectus, have been incorporated by
reference herein in reliance upon the reports of KPMG Peat Marwick LLP and
Deloitte & Touche LLP, independent auditors, incorporated by reference
herein, and upon the authority of said firms as experts in accounting and
auditing. The reports of KPMG Peat Marwick LLP refer to changes in the
methods of accounting for income taxes, postretirement benefits other than
pensions, certain investments in debt and equity securities and accounting
and reporting for reinsurance of short-duration and long-duration
contracts.
The financial statements and schedules of the Company and consolidated
subsidiaries as of December 31, 1991 and for the year then ended,
incorporated by reference in this Prospectus, have been incorporated by
reference herein in reliance upon the report of Deloitte & Touche LLP,
independent auditors, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
17
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable in connection with the distribution of the securities
being registered (estimated except for the registration fee, substantially
all of which will be borne by the Company, are as follows:
Registration fee . . . . . . . . . . . . . . . . . . . . . . $86,207
Printing and engraving expenses . . . . . . . . . . . . . . . 25,000*
Legal fees and expenses . . . . . . . . . . . . . . . . . . . 50,000*
Accounting fees and expenses . . . . . . . . . . . . . . . . 25,000*
Fees and expenses of Trustee . . . . . . . . . . . . . . . . . 15,000*
Blue sky fees and expenses . . . . . . . . . . . . . . . . . . 10,000*
Rating Agency fees . . . . . . . . . . . . . . . . . . . . . 135,000*
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . . 13,793*
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $360,000*
* Estimated
Item 15. Indemnification of Directors and Officers.
(a) The Restated Articles of Incorporation of the Company provide for
indemnification as follows:
"TWELFTH: 1. The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, except an action by or in
the right of the corporation, by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the action, suit or
proceeding if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or
proceeding, has no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
2. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
II-1
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts
paid in settlement and attorneys' fees actually and reasonably
incurred by him in connection with the defense or settlement of the
action or suit if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the corporation. Indemnification shall not be made for any claim,
issue or matter as to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to
the corporation unless and only to the extent that the court in which
the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of
a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in sections 1
and 2 of this Article Twelfth, or in defense of any claim, issue or
matter therein, he must be indemnified by the corporation against
expenses, including attorneys' fees, actually and reasonably incurred
by him in connection with the defense.
4. Any indemnification under sections 1 and 2 of this Article
Twelfth, unless ordered by a court or advanced pursuant to section 5
of this Article Twelfth, must be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum
consisting of directors who were not parties to the act, suit or
proceeding;
(c) If a majority vote of a quorum consisting of directors
who were not parties to the act, suit or proceeding so orders, by
independent legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not
parties to the act, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
5. The expenses of officers and directors incurred in defending
a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay the
amount if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this section 5 of this Article Twelfth
do not affect any rights to advancement of expenses to which corporate
personnel other than directors or officers may be entitled under any
contract or otherwise by law.
II-2
6. The indemnification and advancement of expenses provided by
this Article Twelfth:
(a) Does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be
entitled under these articles of incorporation or any bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to section 2
of this Article Twelfth or for the advancement of expenses of any
director or officer, if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a
knowing violation of the law and was material to the cause of
action.
(b) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the
heirs, executors and administrators of such a person.
7. The corporation may purchase and maintain insurance or make
other financial arrangements on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise for any liability asserted against him and
liability and expenses incurred by him in his capacity as a director,
officer, employee or agent, or arising out of his status as such,
whether or not the corporation has the authority to indemnify him
against such liability and expenses.
8. The other financial arrangements made by the corporation
pursuant to section 7 of this Article Twelfth may include the
following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the
corporation.
(d) The establishment of a letter of credit, guaranty or
surety.
No financial arrangement made pursuant to this section may provide
protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable for
intentional misconduct, fraud or a knowing violation of law, except
with respect to the advancement of expenses or indemnification ordered
by a court.
9. Any insurance or other financial arrangement made on behalf
of a person pursuant to this Article Twelfth may be provided by the
corporation or any other person approved by the board of directors,
even if all or part of the other person's stock or other securities is
owned by the corporation.
II-3
10. In the absence of fraud:
(a) The decision of the board of directors as to the
propriety of the terms and conditions of any insurance or other
financial arrangement made pursuant to this Article Twelfth and
the choice of the person to provide the insurance or other
financial arrangement shall be conclusive; and
(b) The insurance or other financial arrangement:
(1) Is not void or voidable; and
(2) Does not subject any director approving it to
personal liability for his action, even if a director
approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial
arrangement."
(b) The Company has entered into agreements with each Director,
certain key employees, including Brian K. Harrington and G. Stephen
Holcomb, and certain directors of subsidiaries of the Company, that
provide for the indemnification of such individuals for certain
liabilities incurred in such capacity.
See "Undertakings" (Item 17), for an understanding by the Company
relating to claims for indemnification, pursuant to these provisions,
in connection with the securities being registered.
Item 16. Exhibits
4.1 - Restated Articles of Incorporation of the Company, as
amended (incorporated by reference to Exhibit 3.1 of
the Registrant's 1989 Registration Statement on Form S-
3 (Reg. No. 33-30832)).
4.2 - Certificate of Amendment of Restated Articles of
Incorporation of the Company filed with the Secretary
of state of Nevada April 30, 1990 (incorporated by
reference to Exhibit 3.2 of Registrant's Annual Report
on Form 10-K for the year ended December 31, 1991).
4.3 - Form of Indenture between the Company and Texas
Commerce Bank National Association, as Trustee
(included in this Part II).
*5.1 - Opinion of Jenkens & Gilchrist, a Professional
Corporation, counsel for the Company, as to the
validity of the Debt Securities.
12.1 - Statement regarding computation of ratio of earnings to
fixed charges (included in this Part II).
*23.1 - Consent of Jenkens & Gilchrist, a Professional
Corporation (to be included in the Opinion in
Exhibit 5.1).
23.2 - Consent of KPMG Peat Marwick LLP (included in this Part
II).
II-4
23.3 - Consent of Deloitte & Touche LLP (included in this Part
II).
24.1 - Power of Attorney of certain officers and directors
(included in this Part II).
25.1 - Statement of Eligibility of Trustee on Form T-1
(included in this Part II).
* To be filed by amendment.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
Prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained a form of Prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of Prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-5
The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on
October 26, 1994.
KIRBY CORPORATION
By: /s/ George A. Peterkin, Jr.
George A. Peterkin, Jr., President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints George A. Peterkin, Jr. and
Brian K. Harrington, and each of them, his true and lawful attorneys-in-
fact and agents, with full power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature
/s/ Robert G. Stone, Jr.
(Robert G. Stone, Jr.)
/s/ George A. Peterkin, Jr.
(George A. Peterkin, Jr.)
/s/ J.H. Pyne
(J.H. Pyne) Capacity
Chairman of the Board
and Director of the
Company
President and Director
of the Company
(Principal Executive
Officer)
Executive Vice
President and Director
of the Company Date
October 26, 1994
October 26, 1994
October 26, 1994
II-7
/s/ Brian K. Harrington
(Brian K. Harrington)
/s/ G. Stephen Holcomb
(G. Stephen Holcomb)
/s/ George F. Clements, Jr.
(George F. Clements, Jr.)
/s/ J. Peter Kleifgen
(J. Peter Kleifgen)
/s/ William M. Lamont, Jr.
(William M. Lamont, Jr.)
/s/ C. W. Murchison, III
(C. W. Murchison, III)
/s/ J. Virgil Waggoner
(J. Virgil Waggoner) Senior Vice President,
Treasurer, Assistant
Secretary of the
Company (Principal
Financial Officer)
Vice President,
Controller, Assistant
Treasurer, Assistant
Secretary of the
Company (Principal
Accounting Officer)
Director of the Company
Director of the Company
Director of the Company
Director of the Company
Director of the Company October 26, 1994
October 26, 1994
October 26, 1994
October 26, 1994
October 26, 1994
October 26, 1994
October 26, 1994
II-8
Draft Dated
10/24/94
KIRBY CORPORATION
TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
INDENTURE
Dated as of October __, 1994
DEBT SECURITIES
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions. . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . 10
SECTION 104. Notices, etc., to Trustee and Company. . . . . . . . 11
SECTION 105. Notice to Holders; Waiver. . . . . . . . . . . . . . 11
SECTION 106. Conflict with Trust Indenture Act. . . . . . . . . . 12
SECTION 107. Effect of Headings and Table of Contents. . . . . . 12
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . 12
SECTION 109. Separability Clause. . . . . . . . . . . . . . . . . 12
SECTION 110. Benefits of Indenture. . . . . . . . . . . . . . . . 12
SECTION 111. Governing Law. . . . . . . . . . . . . . . . . . . . 12
SECTION 112. Legal Holidays. . . . . . . . . . . . . . . . . . . 12
SECTION 113. No Security Interest Created. . . . . . . . . . . . 13
SECTION 114. Liability Solely Corporate. . . . . . . . . . . . . 13
SECTION 115. Counterparts. . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
DEBT SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of Authentication. . . 14
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . 16
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating. . . 19
SECTION 304. Temporary Debt Securities; Global Notes. . . . . . . 21
SECTION 305. Registration, Transfer and Exchange. . . . . . . . . 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 307. Payment of Interest; Interest Rights Preserved. . . 26
SECTION 308. Cancellation. . . . . . . . . . . . . . . . . . . . 27
SECTION 309. Computation of Interest. . . . . . . . . . . . . . . 27
SECTION 310. Currency of Payments In Respect of Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 311. Judgments. . . . . . . . . . . . . . . . . . . . . . 31
i
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . 31
SECTION 402. Application of Trust Money. . . . . . . . . . . . . 33
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . 33
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . 34
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee. . . . . . . . . . . . . . . . . . . . . 35
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . 36
SECTION 505. Trustee May Enforce Claims Without Possession of
Debt Securities. . . . . . . . . . . . . . . . . 37
SECTION 506. Application of Money Collected. . . . . . . . . . . . 37
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . 38
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . 39
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . 39
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . 39
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . 39
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . 39
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . 40
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . 40
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . . 41
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . 41
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . 43
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 605. May Hold Debt Securities. . . . . . . . . . . . . . 44
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . 45
SECTION 607. Compensation, Indemnification and Reimbursement. . . 45
SECTION 608. Resignation and Removal; Appointment of Successor. . 45
SECTION 609. Acceptance of Appointment by Successor. . . . . . . 47
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . 48
SECTION 611. Appointment of Authenticating Agent. . . . . . . . . 49
SECTION 612. Preferential Collection of Claims Against Company . 50
ARTICLE SEVEN
CONCERNING THE HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 701. Acts of Holders. . . . . . . . . . . . . . . . . . . 51
SECTION 702. Proof of Ownership; Proof of Execution of
Instruments by Holders. . . . . . . . . . . . . 51
SECTION 703. Persons Deemed Owners. . . . . . . . . . . . . . . . 52
SECTION 704. Revocation of Consents; Future Holders Bound. . . . 52
ARTICLE EIGHT
HOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 801. Purposes of Meetings. . . . . . . . . . . . . . . . 52
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SECTION 802. Call of Meetings by Trustee. . . . . . . . . . . . . 53
SECTION 803. Call of Meetings by Company or Holders. . . . . . . 53
SECTION 804. Qualifications for Voting. . . . . . . . . . . . . . 53
SECTION 805. Regulations. . . . . . . . . . . . . . . . . . . . . 54
SECTION 806. Voting. . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 807. No Delay of Rights by Meeting. . . . . . . . . . . . 55
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . 55
SECTION 901. Company May Consolidate, etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 902. Successor Corporation Substituted. . . . . . . . . . 56
ARTICLE TEN
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1001. Supplemental Indentures Without Consent of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1002. Supplemental Indentures With Consent of Holders. . 57
SECTION 1003. Execution of Supplemental Indentures. . . . . . . . 58
SECTION 1004. Effect of Supplemental Indentures. . . . . . . . . 59
SECTION 1005. Conformity with Trust Indenture Act. . . . . . . . 59
SECTION 1006. Reference in Debt Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1007. Notice of Supplemental Indenture. . . . . . . . . . 59
ARTICLE ELEVEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1101. Payment of Principal, Premium and Interest. . . . . 59
SECTION 1102. Maintenance of Office or Agency. . . . . . . . . . 60
SECTION 1103. Money for Debt Securities; Payments To Be Held in
Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1104. Corporate Existence. . . . . . . . . . . . . . . . 61
SECTION 1105. Officers' Certificate as to Default. . . . . . . . 61
ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . 62
SECTION 1202. Election to Redeem; Notice to Trustee. . . . . . . 62
SECTION 1203. Selection by Trustee of Debt Securities to Be
Redeemed. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1204. Notice of Redemption. . . . . . . . . . . . . . . . 63
SECTION 1205. Deposit of Redemption Price. . . . . . . . . . . . 63
SECTION 1206. Debt Securities Payable on Redemption Date. . . . . 64
SECTION 1207. Debt Securities Redeemed in Part. . . . . . . . . . 64
ARTICLE THIRTEEN
DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . 65
SECTION 1302. Defeasance Upon Deposit of Moneys or U.S. -
Government Obligations. . . . . . . . . . . . . 65
SECTION 1303. Deposit Moneys and U.S. Government Obligations to
be Held in Trust. . . . . . . . . . . . . . . . . 67
SECTION 1304. Repayment to Company. . . . . . . . . . . . . . . . 67
iii
iv
INDENTURE dated as of October __, 1994, between KIRBY
CORPORATION, a Nevada corporation (hereinafter called the "Company"),
having its principal executive office at 1775 St. James Place, Suite 300,
Houston, Texas 77056 and TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(hereinafter called the "Trustee"), having its Corporate Trust Office at
___________________________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
debentures, notes, bonds or other evidences of indebtedness (herein
generally called the "Debt Securities"), to be issued in one or more
series, as provided in this Indenture.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of Debt Securities
or of Debt Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States of America at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six,
are defined in those respective Articles.
"Act" when used with respect to any Holder has the meaning
specified in Section 701.
"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" has the meaning specified in Section 611.
"Board of Directors" means either the board of directors of the
Company, or the executive committee or any other committee of that board
duly authorized to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the Debt
Securities means any day that is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in that
Place of Payment or other location are authorized or obligated by law to
close, except as otherwise specified pursuant to Section 301.
"Code" means the Internal Revenue Code of 1986, as amended and as
in effect on the date hereof.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, 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 shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the Chairman,
a Vice Chairman, the President, the Chief Financial Officer or a Vice
President and by the Treasurer, an Assistant Treasurer, the Controller, the
Director of Finance, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 310(h).
"Conversion Date" has the meaning specified in Section 310(d).
"Conversion Event" means the cessation of (i) a Foreign Currency
to be used both by the government of the country which issued such Currency
and for the settlement of transactions by public institutions of or within
2
the international banking community, (ii) the ECU to be used both within
the European Monetary System and for the settlement of transactions by
public institutions of or within the European communities, or (iii) any
Currency unit other than the ECU to be used for the purposes for which it
was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of
this instrument is located at
.
"Corporation" includes corporations, associations, companies and
business trusts.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing House
bank, if any, from time to time selected by the Company for purposes of
Section 310; provided that such agent shall accept such appointment in
writing and the terms of such appointment shall be acceptable to the
Company and shall, in the opinion of the Company at the time of such
appointment, require such agent to make the determinations required by this
Indenture by a method consistent with the method provided in this Indenture
for the making of such decision or determination.
"Debt" means (i) indebtedness for borrowed money by the Company
or a Restricted Subsidiary, (ii) indebtedness of the Company or a
Restricted Subsidiary (including capitalized lease obligations) for the
deferred payment of the purchase price of property or assets purchased, and
(iii) guarantees or other contingent obligations of the Company or a
Restricted Subsidiary of or for borrowed money of another person or
indebtedness of another person for the deferred payment of the purchase
price of property or assets purchased (other than indebtedness owed by a
Restricted Subsidiary to the Company, by a Restricted Subsidiary to a
Subsidiary or by the Company to a Subsidiary).
"Debt Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Debt Securities (including
any Global Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to Section
301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with
respect to the Debt Securities of any series shall mean the Depositary with
respect to the Debt Securities of that series.
"Discharged" has the meaning specified in Section 1302.
"Discount Security" means any Debt Security that is issued with
3
"original issue discount" within the meaning of Section 1273(a) of the Code
and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 310(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 310(f).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 310(h).
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii)
the Dollar, Foreign Currency or Currency unit amounts of principal,
premium, if any, and any interest respectively (on an aggregate basis and
on the basis of a Debt Security having the lowest denomination principal
amount pursuant to Section 302 in the relevant Currency or Currency unit),
payable on the basis of such Market Exchange Rate sent (in the case of a
telex) or signed (in the case of a certificate) by the Chief Financial
Officer, a Vice President, the Treasurer or any Assistant Treasurer of the
Company.
"Fixed Rate Security" means a Debt Security that provides for the
payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security that provides for
the payment of interest at a variable rate determined periodically by
reference to an interest rate index or any other index specified pursuant
to Section 301.
"Foreign Currency" means a currency issued by the government of
any country other than the United States or a composite currency or
currency unit the value of which is determined by reference to the values
of the currencies of any group of countries.
"Global Note" means a Debt Security evidencing all or part of a
series of Debt Securities that is executed by the Company and authenticated
and delivered to the Depositary or pursuant to the Depositary's
instructions, all in accordance with this Indenture and pursuant to a
Company order, which shall be registered in the name of the Depositary or
its nominee and that shall represent the amount of uncertificated
securities as specified therein.
"Holder" means a person in whose name a Debt Security of any
series is registered in the Security Register.
"Indenture" means this instrument as originally executed, or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
4
provisions hereof and, unless the context otherwise requires, shall include
the terms of a particular series of Debt Securities as established pursuant
to Section 301.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent with respect to the
Company, (ii) does not have any direct financial interest or any material
indirect financial interest in the Company or in any other obligor upon the
Debt Securities or in any Affiliate of the Company or of such other
obligor, and (iii) is not connected with the Company or such other obligor
or any Affiliate of the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
The term "Interest", when used with respect to a Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date" with respect to any Debt Security means
the Stated Maturity of an installment of interest on such Debt Security.
"Market Exchange Rate" means (i) for any conversion involving a
Currency Unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant Currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to
Section 301 for the securities of the relevant series, (ii) for any
conversion of Dollars into any Foreign Currency, the noon (New York City
time) buying rate for such Foreign Currency for cable transfers quoted in
New York City as certified for customs purposes by the Federal Reserve Bank
of New York, and (iii) for any conversion of one Foreign currency into
Dollars or another Foreign Currency, the spot rate at noon local time in
the relevant market at which, in accordance with normal banking procedures,
the Dollars or Foreign Currency into which conversion is being made could
be purchased with the Foreign Currency from which conversion is being made
from major banks located in New York City, London or any other principal
market for Dollars or such purchased Foreign Currency. In the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii) the Currency Determination Agent shall use, in
its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent available date,
or quotations from one or more major banks in New York City, London or any
other principal market for such Currency or Currency unit in question, or
such other quotations as the Currency Determination Agent shall deem
appropriate. Unless otherwise specified by the Currency Determination
Agent if there is more than one market for dealing in any currency or
Currency unit by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such Currency or Currency unit shall be
that upon which a nonresident issuer of securities designated in such
Currency or Currency unit would purchase such Currency or Currency unit in
order to make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means the
date on which the principal of such Debt Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption,
repayment at the option of the Holder thereof or otherwise.
"Officers' Certificate" means a certificate signed by the
5
Chairman, a Vice Chairman, the President, the Chief Financial Officer or a
Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel to the Company (including an employee of the Company) and who
shall be reasonably satisfactory to the Trustee, which is delivered to the
Trustee.
"Outstanding" when used with respect to Debt Securities, means,
as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Debt Securities and any
coupons thereto appertaining; provided, however, that if such Debt
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Debt Securities which have been surrendered pursuant to
Section 306 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to
it that such Debt Securities are held by a bona fide purchaser in
whose hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities outstanding have performed any Act
hereunder, Debt Securities owned by the Company or any other obligor upon
the Debt Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any
such Act, only Debt Securities that the Trustee knows to be so owned shall
be so disregarded. Debt Securities so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act with respect to such
Debt Securities and that the pledgee is not the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of such
other obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed any Act
hereunder, the principal amount of a Discount Security that shall be deemed
to be Outstanding for such purpose shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 and the principal amount of a Debt Security denominated in a
Foreign Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section 310(j).
"Overdue Rate," when used with respect to any series of the Debt
6
Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to
such series as contemplated by Section 301.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Debt Securities
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities
of any series means the place or places where the principal of (and
premium, if any) and interest on the Debt Securities of that series are
payable as specified pursuant to Section 301.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt
as that evidenced by such particular Debt Security; and, for the purposes
of this definition, any Debt Security authenticated and delivered under
Section 306 in lieu of a mutilated, lost, destroyed or stolen Debt Security
or a Debt Security to which a mutilated, lost, destroyed or stolen Coupon
appertains shall be deemed to evidence the same debt as the mutilated,
lost, destroyed or stolen Debt Security or the Debt Security to which the
mutilated, lost, destroyed or stolen Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any Debt
Security pursuant to this Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 301, shall be an
Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security, the
amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and accrued
and unpaid interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on the Debt
Securities of any series on any Interest Payment Date means the date
specified for the purpose pursuant to Section 301 for such Interest Payment
Date.
"Responsible Officer" when used with respect to the Trustee means
any Vice President, the Secretary, any Assistant Secretary, any Trust
Officer or Assistant Trust Officer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305(a).
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
7
"Specified Amount" has the meaning specified in Section 310(h).
"Stated Maturity" when used with respect to any Debt Security or
any installment of principal thereof or premium thereon or interest thereon
means the date specified in such Debt Security as the date on which the
principal of such Debt Security or such installment of principal, premium
or interest is due and payable.
"Subsidiary" means (i) any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation,
irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency, is at the time, directly or
indirectly, owned or controlled by the Company or by one or more
Subsidiaries thereof, or by the Company and one or more Subsidiaries or
(ii) any partnership or joint venture of which at least a majority of the
equity ownership, whether in the form of membership, general, special or
limited partnership interests or otherwise, is directly or indirectly owned
or controlled by the Company or by one or more Subsidiaries thereof, or by
the Company and one or more Subsidiaries; provided, however, that said term
shall not include any corporation or partnership controlled by the Company
(herein referred to as an "Affiliated Entity") which:
(a) does not transact any substantial portion of its business or
regularly maintain any substantial portion of its operating assets
within the continental limits of the United States of America;
(b) is principally engaged in the business of financing
(including, without limitation, the purchase, holding, sale or
discounting of or lending upon any notes, contracts, leases or other
forms of obligations) the sale or lease of merchandise, equipment or
services (1) by the Company, or (2) by a Subsidiary (whether such
sales or leases have been made before or after the date when such
corporation or partnership became a Subsidiary), or (3) by another
Affiliated Entity, or (4) by any corporation or partnership prior to
the time when substantially all its assets have heretofore been or
shall hereafter have been acquired by the Company; or
(c) is principally engaged in the holding of stock in, and/or
the financing of operations of, an Affiliated Entity.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 1005.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee," as used with respect to the Debt Securities of any series, shall
mean the Trustee with respect to Debt Securities of such series.
"U.S. Government Obligations" has the meaning specified in
Section 1302.
"Valuation Date" has the meaning specified in Section 310(c).
8
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case may
be, whether or not designated by a number or word or words added before or
after the title "Vice President."
SECTION 102. 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 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
9
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Notices, etc., to Trustee and Company.
Any Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Services Division; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid or airmail postage prepaid if sent from outside the United
States, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, to the
attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the
country of publication.
SECTION 105. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given to Holders (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to such Holders as their names and addresses appear in the Security
Register, within the time prescribed; provided, however, that any notice to
Holders of Floating Rate Securities regarding the determination of a
periodic rate of interest, if such notice is required pursuant to Section
301, shall be sufficiently given if given in the manner specified pursuant
to Section 301.
In the event of suspension of regular mail service or by reason
of any other cause it shall be impracticable to give notice by mail, such
notification shall be given by telex, telecopy or other facsimile
transmission.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance on such waiver. In any case where
notice to Holders is given by mail, neither the failure to mail such notice
10
nor any defect in any notice so mailed to any particular Holder, shall
affect the sufficiency of such notice with respect to other Holders, and
any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given.
SECTION 106. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act (an
"incorporated provision"), such incorporated provision shall control.
SECTION 107. 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 108. Successors and Assigns.
All covenants and agreements in this Indenture by the parties
hereto shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so expressed or
not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder, and
the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 111. Governing Law.
This Indenture and the Debt Securities shall be deemed to be
contracts made and to be performed entirely in the State of New York, and
for all purposes shall be governed by and construed in accordance with the
laws of said State without regard to the conflicts of law rules of said
State.
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SECTION 112. Legal Holidays.
Unless otherwise specified pursuant to Section 301 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Debt Security of any series shall not be a Business
Day at any Place of Payment for the Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of principal (and premium, if any) or interest need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date or at the
Stated Maturity, and no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business Day if such payment
is made or duly provided for on such Business Day.
SECTION 113. No Security Interest Created.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
SECTION 114. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities, or any part
thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement of this Indenture, against any
incorporator, or against any stockholder, officer or director, as such,
past, present or future, of the Company (or any incorporator, stockholder,
officer or director of any predecessor or successor corporation), either
directly or through the Company (or any such predecessor or successor
corporation), whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and all the Debt
Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company
(or any incorporator, stockholder, officer or director of any such
predecessor or successor corporation), either directly or indirectly
through the Company or any such predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any
of the obligations, covenants, promises or agreements contained in this
Indenture or in any of the Debt Securities or to be implied herefrom or
therefrom; and that any such personal liability is hereby expressly waived
and released as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of securities; provided, however,
that nothing herein or in the Debt Securities contained shall be taken to
prevent recourse to and the enforcement of the liability, if any, of any
stockholder or subscriber to capital stock upon or in respect of the shares
of capital stock not fully paid.
SECTION 115. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
12
constitute but one and the same instrument.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Debt Securities of each series shall be substantially in one
of the forms (including global form) established in or pursuant to a Board
Resolution or one or more indentures supplemental hereto, and shall have
such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange
on which any series of the Debt Securities may be listed, or to conform to
usage, all as determined by the officers executing such Debt Securities as
conclusively evidenced by their execution of such Debt Securities. If the
form of a series of Debt Securities (or any Global Note) is established in
or pursuant to a Board Resolution, a copy of such Board Resolution shall be
delivered to the Trustee, together with an Officers' Certificate setting
forth the form of such series, at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of
such Debt Securities (or any such Global Note).
The definitive Debt Securities of each series shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as conclusively
evidenced by their execution of such Debt Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The form of the Trustee's certificate of authentication to be
borne by the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the
within mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By
Authorized Signatory
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ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities that may be
authenticated and delivered under this Indenture is limited to $250,000,000
(or, with respect to any series of Debt Securities issued in a Foreign
Currency, its equivalent based upon the applicable Market Exchange Rate at
the time of issuance).
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and (subject to
Section 303) set forth in an Officers' Certificate, or established in one
or more indentures supplemental hereto, prior to the issuance of Debt
Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series
of Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series that may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon transfer of, or in exchange for, or
in lieu of, other Debt Securities of such series pursuant to Sections
304, 305, 306, 1006 or 1207);
(3) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the date or dates (or the
method of determination thereof) on which the principal of (and
premium, if any, on) the Debt Securities of such series are or may be
payable (which, if so provided in such Board Resolution or
supplemental indenture may be determined by the Company from time to
time and set forth in the Debt Securities of the series issued from
time to time);
(4) the rate or rates (or the method of determination thereof)
at which the Debt Securities of the series shall bear interest, if
any, and the dates from which such interest shall accrue (which, in
either case or both, if so provided in such Board Resolution or
supplemental indenture may be determined by the Company from time to
time and set forth in the Debt Securities of the series issued from
time to time), the Interest Payment Dates on which such interest shall
be payable (or the method of determination thereof), and the Regular
Record Dates for the interest payable on such Interest Payment Dates
and, in the case of Floating Rate Securities, the notice, if any, to
Holders regarding the determination of interest and the manner of
giving such notice, and the extent to which, or the manner in which,
any interest payable on any Global Note on an Interest Payment Date
will be paid if other than in the manner provided in Section 307;
(5) the place or places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee, where the principal of (and
premium, if any) and interest on Debt Securities of the series shall
be payable;
14
(6) the obligation, if any, of the Company to redeem or purchase
Debt Securities of the series at the option of the Holder and the
period or periods within which or the dates on which, the prices at
which and the terms and conditions upon which Debt Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(7) the period or periods within which or the date or dates on
which, the price or prices at which and the terms and conditions upon
which Debt Securities of the series may be redeemed, if any, in whole
or in part, at the option of the Company or otherwise;
(8) if the coin or Currency in which the Debt Securities shall
be issuable is in Dollars, the denominations of such Debt Securities
if other than denominations of $1,000 and any integral multiple
thereof (except as provided in Section 304);
(9) whether the Debt Securities of the series are to be issued
as Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount
thereof, the portion of the principal amount of Debt Securities of the
series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(10) provisions, if any, for the defeasance of Debt Securities of
the series;
(11) if other than Dollars, the Foreign Currency or Currencies in
which Debt Securities of the series shall be denominated, or in which
payment of the principal of (and/or premium, if any) and/or interest
on the Debt Securities of the series may be made, and the particular
provisions applicable thereto and, if applicable, the amount of Debt
Securities of the series which entitles the Holder of a Debt Security
of the series or proxy to one vote for purposes of Section 805;
(12) if the principal of (and premium, if any) or interest on
Debt Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a Currency other than that in
which the Debt Securities are denominated or payable without such
election, in addition or in lieu of the provisions of Section 310, the
period or periods within which and the terms and conditions upon which
such election may be made and the time and the manner of determining
the exchange rate or rates between the Currency or Currencies in which
the Debt Securities are denominated or payable without such election
and the Currency or Currencies in which the Debt Securities are to be
paid if such election is made;
(13) the date as of which any global Debt Security representing
any Outstanding Debt Securities of the series shall be dated if other
than the date of original issuance of the first Debt Security of the
series to be issued;
(14) if the amount of payments of principal of (and premium, if
any) or interest on the Debt Securities of the series may be
determined with reference to an index including, but not limited to,
an index based on a Currency or Currencies other than that in which
the Debt Securities are denominated or payable, or any other type of
index, the manner in which such amounts shall be determined;
15
(15) if the Debt Securities of the series are denominated or
payable in a Foreign Currency, any other terms concerning the payment
of principal of (and premium, if any) or any interest on such Debt
Securities (including the Currency or Currencies of payment thereof);
(16) the designation of the original Currency Determination
Agent;
(17) the applicable Overdue Rate, if any;
(18) if the Debt Securities of the series do not bear interest,
the applicable dates for purposes of Section 312(a) of the Trust
Indenture Act;
(19) any addition to, or modification or deletion of, any Events
of Default or covenants provided for with respect to Debt Securities
of the series;
(20) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such
case, the Depositary for such Global Note or Notes; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and
the date from which interest, if any, shall accrue, which, as set forth
above, may be determined by the Company from time to time as to Debt
Securities of a series if so provided in or established pursuant to the
authority granted in a Board Resolution or in any such indenture
supplemental hereto, and except as may otherwise be provided in or pursuant
to such Board Resolution and (subject to Section 303) set forth in such
Officers' Certificate, or in any such indenture supplemental hereto. All
Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of
additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established
in or pursuant to a Board Resolution, a copy of such Board Resolution shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
In the absence of any specification pursuant to Section 301 with
respect to Debt Securities of any series, the Debt Securities of such
series shall be issuable only in registered form and in denominations of
$1,000 and any integral multiple thereof and shall be payable only in
Dollars.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Debt Securities of any series shall be executed on behalf of
the Company by its Chairman, a Vice Chairman, its President, its Chief
Financial Officer, one of its Vice Presidents or its Treasurer, under its
corporate seal reproduced thereon and attested by its Secretary or one of
16
its Assistant Secretaries. The signature of any of these officers may be
manual or facsimile.
Debt 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 Debt Securities or did not hold such offices at the date of such Debt
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities of any
series, executed by the Company, to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Debt Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Debt Securities. If all the Debt Securities
of any one series are not to be issued at one time and if a Board
Resolution or supplemental indenture relating to such series shall so
permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Debt Securities such as interest rate,
Stated Maturity, date of issuance and date from which interest, if any,
shall accrue.
The Trustee shall be entitled to receive, and (subject to any
incorporated provisions) shall be fully protected in relying upon, prior to
the authentication and delivery of the Debt Securities of a particular
series, (i) the supplemental indenture or the Board Resolution by or
pursuant to which the form and terms of such Debt Securities have been
approved and (ii) an Opinion of Counsel stating that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt
Securities conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to
authenticate and deliver such Debt Securities;
(2) the forms and terms of such Debt Securities have been
established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities
have been established in a supplemental indenture, the execution and
delivery of such supplemental indenture has been duly authorized by
all necessary corporate action of the Company, such supplemental
indenture has been duly executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Trustee, is
a valid and binding obligation enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law);
(4) the execution and delivery of such Debt Securities have been
duly authorized by all necessary corporate action of the Company and
such Debt Securities have been duly executed by the Company, and,
assuming due authentication by the Trustee and delivery by the
Company, are valid and binding obligations enforceable against the
Company in accordance with their terms, entitled to the benefit of the
17
Indenture, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and subject
to such other exceptions as counsel shall request and as to which the
Trustee shall not reasonably object; and
(5) the amount of Debt Securities Outstanding of such series,
together with the amount of such Debt Securities, does not exceed any
limit established under the terms of this Indenture on the amount of
Debt Securities of such series that may be authenticated and
delivered.
The Trustee shall not be required to authenticate such Debt
Securities if the issuance of such Debt Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under
the Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debt Security a certificate of authentication substantially in one of
the forms provided for herein duly executed by the Trustee or by an
Authenticating Agent, and such certificate upon any Debt Security shall be
conclusive evidence, and the only evidence, that such Debt Security has
been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Debt
Security shall have been duly authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such
Debt Security to the Trustee for cancellation as provided in Section 308
together with a written statement (which need not comply with Section 102)
stating that such Debt Security has never been issued and sold by the
Company, for all purposes of this Indenture such Debt Security shall be
deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Debt Securities; Global Notes.
(a) Pending the preparation of definitive Debt Securities of
any series, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Debt Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination for Debt Securities of such series,
substantially of the tenor of the definitive Debt Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debt
Securities may determine, as conclusively evidenced by their execution of
such Debt Securities. Every such temporary Debt Security shall be executed
by the Company and shall be authenticated and delivered by the Trustee upon
the same conditions and in substantially the same manner, and with the same
effect, as the definitive Debt Securities in lieu of which they are issued.
If temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series
18
shall be exchangeable for definitive Debt Securities of such series, of a
like Stated Maturity and with like terms and provisions, upon surrender of
the temporary Debt Securities of such series at the office or agency of the
Company in a Place of Payment for such series, without charge to the
Holder, except as provided in Section 305 in connection with a transfer.
Upon surrender for cancellation of any one or more temporary Debt
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations
and of a like Stated Maturity and like terms and provisions. Until so
exchanged, the temporary Debt Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of such series.
(b) If the Company shall establish pursuant to Section 301 that
the Debt Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the
Trustee shall, in accordance with Section 303 and the Company Order with
respect to such series, authenticate and deliver one or more Global Notes
in temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
outstanding Debt Securities of such series to be represented by one or more
Global Notes, (ii) shall be registered in the name of the Depositary for
such Global Note or Notes or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction, and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Debt Securities in definitive form, this Debt Security may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Section or Section
305, unless and until it is exchanged in whole or in part for Debt
Securities in definitive form, a Global Note representing all or a portion
of the Debt Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Debt Securities of such series or if at any time the
Depositary for Debt Securities of a series shall no longer be registered or
in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to the Debt Securities of such series.
If a successor Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Debt Securities of such series, will authenticate
and deliver, Debt Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Note
or Notes representing such series in exchange for such Global Note or
Notes.
19
The Company may at any time and in its sole discretion determine
that the Debt Securities of any series issued in the form of one or more
Global Notes shall no longer be represented by such Global Note or Notes.
In such event, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive form and in an aggregate principal amount
equal to the principal amount of the Global Note or Notes representing such
series in exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 301 with respect
to Debt Securities of a series, the Depositary for such series of Debt
Securities may surrender a Global Note for such series of Debt Securities
in exchange in whole or in part for Debt Securities of such series in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the Depositary a new Debt
Security or Securities of the same series of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Note; and
(ii) to the Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the
surrendered Global Note and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
Upon the exchange of a Global Note for Debt Securities in
definitive form, such Global Note shall be canceled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this Section
304 shall be registered in such names and in such authorized denominations
as the Depositary for such Global Note, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Debt Securities to the persons in whose
names such Debt Securities are so registered.
SECTION 305. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the registers maintained in such office
and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of the Debt Securities and of
transfers and exchanges of the Debt Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering the Debt
Securities and registering transfers and exchanges of the Debt Securities
as herein provided; provided, however, that the Company may appoint
co-Security Registrars.
Upon surrender for registration of transfer of any Debt Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Debt
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Debt Securities of such series and of a
20
like Stated Maturity and with like terms and conditions.
At the option of the Holder, Debt Securities of any series
(except Global Notes) may be exchanged for other Debt Securities of the
same series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions, upon surrender of the Debt
Securities to be exchanged at such office or agency. Whenever any Debt
Securities are surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Debt Securities that the Holder
making the exchange is entitled to receive.
(b) All Debt Securities issued upon any transfer or exchange of
Debt Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Debt Securities surrendered for such transfer or exchange.
Every Debt Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of
Debt Securities except as provided in Section 306. The Company may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration, transfer or
exchange of Debt Securities, other than those expressly provided in this
Indenture to be made at the Company's own expense or without expense or
without charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the transmission of a notice
of redemption of Debt Securities of such series selected for redemption
under Section 1204 and ending at the close of business on the day of such
transmission, or (ii) to register, transfer or exchange any Debt Security
so selected for redemption in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security is surrendered to the Trustee
at its Corporate Trust Office, or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Debt Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them and
any Paying Agent harmless, and neither the Company nor the Trustee receives
notice that such Debt Security has been acquired by a bona fide purchaser,
then the Company shall execute and upon Company Request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Debt Security, a new Debt Security of the same
series of like Stated Maturity and with like terms and conditions and like
principal amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Debt
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Debt Security, pay the amount
due on such Debt Security in accordance with its terms.
21
Upon the issuance of any new Debt 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 respect thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Debt Security of any series issued pursuant to this
Section shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt 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 Debt 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 Debt
Securities or Coupons.
22
SECTION 307. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Debt Security that is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be
paid to the Person in whose name such Debt Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest notwithstanding the cancellation of
such Debt Security upon any transfer or exchange subsequent to the Regular
Record Date. Payment of interest on Debt Securities shall be made at the
offices of the Paying Agent or Paying Agents specified pursuant to Section
301 or, at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register or, if provided pursuant to Section 301, by wire transfer to an
account designated by the Holder.
(b) Any interest on any Debt Security that 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 his having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Debt Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Debt Security and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money in the Currency or
Currency unit in which the Debt Securities of such series are payable
(except as otherwise specified pursuant to Sections 301 or 310) 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 date shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to the
Holders of such Debt Securities at their addresses as they appear 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 such Debt 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 on
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Debt Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debt 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.
(c) Subject to the foregoing provisions of this Section, each
Debt Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security.
SECTION 308. Cancellation.
Unless otherwise specified pursuant to Section 301 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund, if
surrendered to any Person other than the Trustee, shall be delivered to the
Trustee. All Debt Securities so delivered shall be promptly canceled by
the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Debt Securities previously authenticated and delivered
hereunder that the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Debt Securities previously authenticated
hereunder which the Company has not issued, and all Debt Securities or
Coupons so delivered shall be promptly canceled by the Trustee. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Debt Securities held by the
Trustee shall be destroyed by the Trustee, and the Trustee shall deliver a
certificate to such effect to the Company. The acquisition of any Debt
Securities by the Company shall not operate as a redemption or satisfaction
of the indebtedness represented thereby unless and until such Debt
Securities are surrendered to the Trustee for cancellation.
SECTION 309. Computation of Interest.
Except as otherwise specified pursuant to Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 310. Currency of Payments In Respect of Debt Securities.
(a) With respect to Debt Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which
have not made the election provided for in paragraph (b) below, except as
provided in paragraph (d) below, payment of the principal of (and premium,
if any) and any interest on any Debt Security of such series will be made
in the Currency in which such Debt Security is payable.
(b) It may be provided pursuant to Section 301 with respect to
the Debt Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal
of (and premium, if any) and any interest on such Debt Securities in any of
the Currencies that may be designated for such election by delivering to
the Trustee and the Currency Determination Agent a written election, to be
in form and substance satisfactory to the Trustee, not later than the close
24
of business on the Election Date immediately preceding the applicable
payment date. If a Holder so elects to receive such payments in any such
Currency, such election will remain in effect for such Holder or any
transferee of such Holder until changed by such Holder or such transferee
by written notice to the Trustee and the Currency Determination Agent (but
any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective
for the payment to be made on such payment date and no such change or
election may be made with respect to payments to be made on any Debt
Security of such series with respect to which an Event of Default has
occurred or notice of redemption has been given by the Company pursuant to
Article Twelve). Any Holder of any such Debt Security who shall not have
delivered any such election to the Trustee and the Currency Determination
Agent by the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant Currency as
provided in paragraph (a) of this Section 310.
(c) If the election referred to in paragraph (b) above has been
provided for pursuant to Section 301, then not later than the fourth
Business Day after the Election Date for each payment date, the Trustee or
the Currency Determination Agent will deliver to the Company a written
notice specifying, in the Currency in which each series of the Debt
Securities are payable, the respective aggregate amounts of principal of
(and premium, if any) and any interest on the Debt Securities to be paid on
such payment date, specifying the amounts so payable in respect of the Debt
Securities as to which the Holders of Debt Securities denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (b) above. If the election referred to in paragraph (b) above
has been provided for pursuant to Section 301 and if at least one Holder
has made such election, then, on the second Business Day preceding each
payment date, the Company will deliver to the Trustee and the Currency
Determination Agent an Exchange Rate Officer's Certificate in respect of
the Currency payments to be made on such payment date. The Currency amount
receivable by Holders of Debt Securities who have elected payment in a
Currency as provided in paragraph (b) above shall be determined by the
Company on the basis of the applicable Market Exchange Rate in effect on
the third Business Day (the "Valuation Date") immediately preceding each
payment date.
(d) If a Conversion Event occurs with respect to a Foreign
Currency, the ECU or any other Currency unit in which any of the Debt
Securities are denominated or payable other than pursuant to an election
provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and any interest
on the applicable Foreign Currency, the ECU or such other Currency unit
occurring after the last date on which such Foreign Currency, the ECU or
such other Currency unit was used (the "Conversion Date"), the Dollar shall
be the Currency of payment for use on each such payment date. The Dollar
amount to be paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in
the case of a Currency unit, the Dollar Equivalent of the Currency Unit, in
each case as determined by the Currency Determination Agent in the manner
provided in paragraph (f) or (g) below.
(e) If the Holder of a Debt Security denominated in any Currency
shall have elected to be paid in another Currency as provided in paragraph
(b) above, and a Conversion Event occurs with respect to such elected
25
Currency, such Holder shall receive payment in the Currency in which
payment would have been made in the absence of such election. If a
Conversion Event occurs with respect to the Currency in which payment would
have been made in the absence of such election, such Holder shall receive
payment in Dollars as provided in paragraph (d) of this Section 310.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent and shall be obtained for
each subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Currency Determination Agent and subject to the
provisions of paragraph (h) below, shall be the sum of each amount obtained
by converting the Specified Amount of each Component Currency into Dollars
at the Market Exchange Rate for such Component Currency on the Valuation
Date with respect to each payment.
(h) For purposes of this Section 310 the following terms shall
have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single Currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more Currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more Currencies with
appropriate Dollar equivalents at the Market Exchange Rate on the date of
such replacement equal to the dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such date,
and such amounts shall thereafter be Specified Amounts and such Currencies
shall thereafter be Component Currencies. If after the Conversion Date of
the relevant Currency unit, including but not limited to, the ECU, a
Conversion Event (other than any event referred to above in this definition
of "Specified Amount") occurs with respect to any Component Currency of
such Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any
payment date, and with respect to the Maturity shall mean the record date
(if within 16 or fewer days prior to the Maturity) immediately preceding
the Maturity, and with respect to any series of Debt Securities whose
26
record date immediately preceding the Maturity is more than 16 days prior
to the Maturity or any series of Debt Securities for which no record dates
are provided with respect to interest payments, shall mean the date that is
16 days prior to the Maturity.
(i) All decisions and determinations of the Currency
Determination Agent regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon
the Company and all Holders of the Debt Securities denominated or payable
in the relevant Currency. In the event of a Conversion Event with respect
to a Foreign Currency, the Company, after learning thereof, will
immediately give written notice thereof to the Trustee and the Currency
Determination Agent (and the Trustee will promptly thereafter give notice
in the manner provided in Section 105 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to the
ECU or any other Currency in which Securities are denominated or payable,
the Company, after learning thereof, will immediately give notice thereof
to the Trustee (and the Trustee will promptly thereafter give written
notice in the manner provided in Section 105 to the Holders) specifying the
Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event of any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give written notice to the
Trustee. The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent and shall not otherwise have any duty or obligation to
determine such information independently.
(j) For purposes of any provision of the Indenture where the
Holders of Outstanding Debt Securities may perform an Act that requires
that a specified percentage of the Outstanding Debt Securities of all
series perform such Act and for purposes of any decision or determination
by the Trustee of amounts due and unpaid for the principal of (and premium,
if any) and interest on the Debt Securities of all series in respect of
which moneys are to be disbursed ratably, the principal of (and premium, if
any) and interest on the Outstanding Debt Securities denominated in a
Foreign Currency will be the amount in Dollars based upon the Market
Exchange Rate for Debt Securities of such series, as of the date for
determining whether the Holders entitled to perform such Act have performed
it, or as of the date of such decision or determination by the Trustee, as
the case may be.
SECTION 311. Judgments.
If for the purpose of obtaining a judgment in any court with
respect to any obligation of the Company hereunder or under any Debt
Security, it shall become necessary to convert into any other Currency any
amount in the Currency due hereunder or under such Debt Security, then such
conversion shall be made at the Market Exchange Rate as in effect on the
date the Company shall make payment to any Person in satisfaction of such
judgment. If pursuant to any such judgment, conversion shall be made on a
date other than the date payment is made and there shall occur a change
between such Market Exchange Rate and the Market Exchange Rate as in effect
on the date of payment, the Company agrees to pay such additional amounts
(if any) as may be necessary to ensure that the amount paid is equal to the
amount in such other Currency which, when converted at the Market Exchange
27
Rate as in effect on the date of payment or distribution, is the amount
then due hereunder or under such Debt Security. Any amount due from the
Company under this Section 311 shall be due as a separate debt and is not
to be affected by or merged into any judgment being obtained for any other
sums due hereunder or in respect of any Debt Security. In no event,
however, shall the Company be required to pay more in the Currency or
Currency unit due hereunder or under such Debt Security at the Market
Exchange Rate as in effect when payment is made than the amount of Currency
stated to be due hereunder or under such Debt Security so that in any event
the Company's obligations hereunder or under such Debt Security will be
effectively maintained as obligations in such Currency, and the Company
shall be entitled to withhold (or be reimbursed for, as the case may be)
any excess of the amount actually realized upon any such conversion over
the amount due and payable on the date of payment or distribution.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any series
(if all series issued under this Indenture are not to be affected), shall,
upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of such Debt
Securities herein expressly provided for and rights to receive payments of
principal (and premium, if any) and interest on such Debt Securities) and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when
28
(1) either
(A) all Debt Securities of such series theretofore authenticated
and delivered (other than (i) Debt Securities of such series which
have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Debt 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
1103) have been delivered to the Trustee for cancellation; or
(B) all Debt Securities of such series not theretofore delivered
to the Trustee for cancellation,
(i) have become due and payable; or
(ii) will become due and payable at their Stated Maturity
within one year; or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) of this
subclause (B), has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for such
purpose an amount in the Currency in which such Debt Securities
are denominated (except as otherwise provided pursuant to
Sections 301 or 310), sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and premium,
if any) and interest to the date of such deposit (in the case of
Debt Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under the federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other
similar law, is filed with respect to the Company within 91 days
after the deposit and the Trustee is required to return the
deposited money to the Company, the obligations of the Company
under this Indenture with respect to such Debt Securities shall
not be deemed terminated or discharged;
(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 with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 611
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1103 shall survive.
If, after the deposit referred to in this Section 401 has been made, (x)
the Holder of a Debt Security is entitled to, and does, elect pursuant to
Section 310(b), to receive payment in a Currency other than that in which
29
the deposit pursuant to this Section 401 was made, or (y) if a Conversion
Event occurs with respect to the Currency in which the deposit was made or
elected to be received by the Holder pursuant to Section 310(b), then the
indebtedness represented by such Debt Security shall be fully discharged to
the extent that the deposit made with respect to such Debt Security shall
be converted into the Currency in which such payment is made.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1103,
all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Debt
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 interest for whose payment such money
has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to Debt
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) default in the payment of any interest upon any Debt
Security of such series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (and premium, if
any, on) any Debt Security of such series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which expressly has been
included in this Indenture solely for the benefit of Debt Securities
of a series other than such series), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Debt Securities of such series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(4) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an
involuntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or a decree or order
30
adjudging the Company a 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 Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(5) the commencement by the Company of a voluntary case under
the federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other
similar law, or the consent by it to the entry of an order for relief
in an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount
(or, if any Debt Securities of such series are Discount Securities, such
portion of the principal amount of such Discount Securities as may be
specified in the terms of such Discount Securities) of all the Debt
Securities of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall
become immediately due and payable. Upon payment of such amount in the
Currency in which such Debt Securities are denominated (except as otherwise
provided pursuant to Sections 301 or 310), all obligations of the Company
in respect of the payment of principal of the Debt Securities of such
series shall terminate.
At any time after such a declaration of acceleration with respect
to Debt Securities of any series 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 the Outstanding Debt Securities of such series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum in
the Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Sections 301 or 310) sufficient to pay
(A) all overdue installments of interest on all Debt
Securities of such series;
31
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Debt Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt
Security at the Overdue Rate; 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; provided, however, that
all sums payable under this clause (D) shall be paid in Dollars;
and
(2) all Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt
Securities of such series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission and waiver shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Debt Security when such interest becomes due and
payable and such default continues for a period of 30 days;
(2) default is made in the payment of principal of (or premium,
if any, on) any Debt Security at the Maturity thereof; or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due
pursuant to the terms of the Debt Securities of any series;
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Debt Securities the amount then due and payable on such
Debt Securities for the principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and
upon overdue installments of interest, at the Overdue Rate; 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 amount forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon such
Debt Securities, and collect the moneys adjudged or decreed to be payable
32
in the manner provided by law out of the property of the Company or any
other obligor upon such Debt Securities wherever situated.
If an Event of Default with respect to Debt 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 Debt
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 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceedings, or any voluntary or involuntary
case under the federal bankruptcy laws, as now or hereafter constituted,
relative to the Company or any other obligor upon the Debt Securities, if
any, of a particular series or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the
principal of such Debt Securities shall then be due and payable as therein
expressed or by declaration of acceleration 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 of principal
(or, if the Debt Securities of such series are Discount Securities,
such portion of the principal amount as may be due and payable with
respect to such series pursuant to a declaration in accordance with
Section 502) (and premium, if any) and interest owing and unpaid in
respect of the Debt Securities of such series and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of such Debt Securities and
Coupons allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
such Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to such
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Debt Securities of such series or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
33
SECTION 505. Trustee May Enforce Claims Without Possession of Debt
Securities.
All rights of action and claims under this Indenture or the Debt
Securities of any series may be prosecuted and enforced by the Trustee
without the possession of any of such Debt 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 Debt Securities in respect of which such judgment has
been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (and premium, if any) or interest, upon presentation of the Debt
Securities of any series in respect of which money has been collected and
the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
of such series, 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 Debt
Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt 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 such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
34
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 Debt Securities of
such series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holders or of the Holders of Outstanding Debt Securities of
any other series, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders. For the protection and enforcement
of the provisions of this Section 507, each and every Holder of Debt
Securities of any series and the Trustee for such series shall be entitled
to such relief as can be given at law or in equity.
35
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Debt Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 307) interest on such Debt Security on the
respective Stated Maturity or Maturities expressed in such Debt Security
(or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment and interest thereon, and such
right shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case the
Company, the Trustee and the Holders 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 the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise expressly provided elsewhere in this
Indenture, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder 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 Indenture
or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Debt 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 Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) subject to any incorporated provisions, the Trustee shall
36
have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer or Responsible Officers
of the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders of Debt Securities of such series
not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders
of all the Debt Securities of any such series waive any past default
hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the
Debt Securities of such series, or
(2) in respect of a covenant or provision hereof which pursuant
to Article Ten cannot be modified or amended without the consent of
the Holder of each outstanding Debt 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 the Debt Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit other than the Trustee of an undertaking to
pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder or group of Holders holding in the
aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder of a Debt
Security for the enforcement of the payment of the principal of (or
premium, if any) or interest on such Debt Security on or after the
respective Stated Maturity or Maturities expressed in such Debt Security
(or, in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
37
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 SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series,
(1) the Trustee undertakes to perform 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 provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect to Debt Securities
of any series has occurred and is continuing, the Trustee shall, with
respect to the Debt Securities of such series, 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, provided 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, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series 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
38
(4) 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.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities of any series the Trustee shall give notice to
all Holders of Debt Securities of such series of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of
the principal of (or premium, if any) or interest on any Debt Security of
such series or in the payment of any sinking fund installment with respect
to Debt Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of
such notice is in the interest of the Holders of Debt Securities of such
series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Debt Securities of
such series no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of
such series.
Notice given pursuant to this Section 602 shall be transmitted by
mail:
(1) to all Holders, as the names and addresses of the Holders
appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with the Trust Indenture Act.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in 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, note or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
39
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of any series
pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent (including
any agent appointed pursuant to Section 310(i)) or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be required to take notice or be
deemed to have notice of any default hereunder (except failure by the
Company to pay principal of or interest on any series of Securities so
long as the Trustee is also acting as Paying Agent for such series of
Securities) unless the Trustee shall be specifically notified in
writing of such default by the Company or by the Holders of at least a
10% in aggregate principal amount of all Securities then outstanding,
and all such notices or other instruments required by this Indenture
to be delivered to the Trustee must, in order to be effective, be
delivered at the principal Corporate Trust Office of the Trustee, and
in the absence of such notice the Trustee may conclusively assume
there is no default except as aforesaid; and
(i) The permissive right of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty.
SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein and in the Debt Securities, except
40
the Trustee's certificates 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 Debt Securities or
Coupons, if any, of any series. The Trustee shall not be accountable for
the use or application by the Company of any Debt Securities or the
proceeds thereof.
SECTION 605. May Hold Debt Securities.
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities, and, subject to any
incorporated provisions, may otherwise deal with the Company with the same
rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money in any Currency held by the Trustee or any Paying Agent in
trust hereunder need not be segregated from other funds except to the
extent required by law. Neither the Trustee nor any Paying Agent shall be
under any liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation, Indemnification and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars 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 in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part arising out of or in connection
with the acceptance or administration of this trust or performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Debt
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of amounts due on the Debt
Securities.
The obligations of the Company under this Section 607 to
compensate and indemnify the Trustee for expenses, disbursements and
41
advances shall constitute additional indebtedness under this Indenture and
shall survive the satisfaction and discharge of this Indenture.
SECTION 608. 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
609.
(b) The Trustee may resign at any time with respect to the Debt
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 the Debt Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Debt Securities of any series and a successor Trustee appointed by Act of
the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act with respect to the Debt Securities of any series
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Debt Security of such series for at least
six months; or
(2) the Trustee shall cease to be eligible under Section 310(a)
of the Trust Indenture Act with respect to the Debt Securities of any
series and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Debt Securities, or (ii) subject to Section
514, any Holder who has been a bona fide Holder of a Debt 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 and the appointment of a successor Trustee for the
Debt Securities of such series;
(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 Debt Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Debt Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Debt 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 Debt
42
Securities of any particular series) and shall comply with the applicable
requirements of Section 609. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt 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 the Debt Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no successor Trustee
with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of such series and accepted
appointment in the manner hereinafter provided, any Holder who has been a
bona fide Holder of a Debt Security of such series for at least six months
may, subject to Section 514, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series
and each appointment of a successor Trustee with respect to the Debt
Securities of any series in the manner and to the extent provided in
Section 105 to the Holders of Debt Securities of such series. Each notice
shall include the name of the successor Trustee with respect to the Debt
Securities of such series and the address of its Corporate Trust Office.
(g) If the Trustee has or shall acquire any conflicting interest
within the meaning of the Trust Indenture Act with respect to the Debt
Securities of any series, it shall either eliminate such conflicting
interest or resign with respect to the Debt Securities of that series in
the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture, and the Company shall take prompt action
to have a successor Trustee with respect to the Debt Securities of that
series appointed in the manner provided herein.
(h) There shall at all times be a Trustee hereunder with respect
to the Debt Securities of each series, which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, having a
combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority and having its
Corporate Trust Office in Chicago, Illinois or New York, New York. If such
corporation publishes reports of condition at least annually, pursuant to
law or the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. 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 609. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, each such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
43
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 its charges, execute and
deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder, subject nevertheless to its claim, if
any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect
to the Debt 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 Debt 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 Debt 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 Debt Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any other trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of any such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debt Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Debt 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 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
44
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 that 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
Debt Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Debt Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Debt Securities. In
case any Debt Securities shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its
predecessor Trustee, with the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding,
upon a Company Request, there shall be an authenticating agent (the
"Authenticating Agent") appointed, for such period as the Company shall
elect, by the Trustee for such series of Debt Securities to act as its
agent on its behalf and subject to its direction in connection with the
authentication and delivery of each series of Debt Securities for which it
is serving as Trustee. Debt Securities of each such series authenticated
by such Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any
series by the Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee for such series by an Authenticating
Agent for such series and a Certificate of Authentication executed on
behalf of such Trustee by such Authenticating Agent except that only the
Trustee may authenticate Debt Securities upon original issuance and
pursuant to Section 306 hereof. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of
at least $25,000,000 and subject to supervision or examination by federal
or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which any 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 any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Debt Securities for
which it served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee for such series or
45
such Authenticating Agent. Any Authenticating Agent may at any time, and
if it shall cease to be eligible, shall resign by giving written notice of
resignation to the applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section 611 with
respect to one or more of all series of Debt Securities, the Trustee for
such series shall upon Company Request appoint a successor Authenticating
Agent, and the Company shall provide notice of such appointment to all
Holders of Debt Securities of such series in the manner and to the extent
provided in Section 105. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent herein.
The Trustee for the Debt Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payment, subject to the provisions of Section 607. The
Authenticating Agent for the Debt Securities of any series shall have no
responsibility or liability for any action taken by it as such at the
direction of the Trustee for such series.
If an appointment with respect to one or more series is made
pursuant to this Section, the Debt Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the series of Debt Securities issued under the
within mentioned Indenture.
as Trustee
By
As Authenticating Agent
By
Authorized Signatory
SECTION 612. Preferential Collection of Claims Against Company.
If and when the Trustee becomes a creditor of the Company (or any
other obligor upon the Debt Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor). A Trustee that has
resigned or been removed is subject to such provisions of the Trust
Indenture Act to the extent provided therein.
46
ARTICLE SEVEN
CONCERNING THE HOLDERS
SECTION 701. Acts of Holders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Whenever in this Indenture it is provided that the Holders of
a specified percentage in aggregate principal amount of the Outstanding
Debt Securities of any series may take any Act, the fact that the Holders
of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or
proxy appointed in writing, or (b) by the record of Holders voting in favor
thereof at any meeting of such Holders duly called and held in accordance
with the provisions of Article Eight, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders.
SECTION 702. Proof of Ownership; Proof of Execution of Instruments by
Holders.
The ownership of Debt Securities of any series shall be proved by
the Security Register for such series or by a certificate of the Security
Registrar for such series.
Subject to the provisions of Section 603 and 805, proof of the
execution of a writing appointing an agent or proxy and of the execution of
any instrument by a Holder or his agent or proxy shall be sufficient and
conclusive in favor of the Trustee and the Company if made in the following
manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgement of deeds, that the person
executing such instrument acknowledged to him the execution thereof, or by
an affidavit of a witness to such execution sworn to before any such notary
or other such officer. Where such execution is by an officer of a
corporation or association or a member of a partnership on behalf of such
corporation, association or partnership, as the case may be, or by any
other person acting in a representative capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 806.
The Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section so long as the
request is a reasonable one.
SECTION 703. Persons Deemed Owners.
47
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Debt Security is registered
as the owner of such Debt Security for the purpose of receiving payment of
the principal of (and premium, if any) and (subject to Section 307)
interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt 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. All payments made to any Holder, or
upon his order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys payable upon
such Debt Security.
SECTION 704. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 701, of the taking of any Act by the
Holders of the percentage in aggregate principal amount of the Outstanding
Debt Securities specified in this Indenture in connection with such Act,
any Holder of a Debt Security the number, letter or other distinguishing
symbol of which is shown by the evidence to be included in the Debt
Securities the Holders of which have consented to such Act may, by filing
written notice with the Trustee at the Corporate Trust Office and upon
proof of ownership as provided in Section 702, revoke such Act so far as it
concerns such Debt Security. Except as aforesaid, any such Act taken by
the Holder of any Debt Security shall be conclusive and binding upon such
Holder and upon all future Holders of such Debt Security and of any Debt
Securities issued on transfer or in lieu thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in
regard thereto is made upon such Debt Security or such other Debt
Securities.
ARTICLE EIGHT
HOLDERS' MEETINGS
SECTION 801. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Eight
for any of the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or
to consent to the waiving of any 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 Five;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 1002; 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 Outstanding Debt Securities of any one or more or all series, as
the case may be, under any other provision of this Indenture or under
48
applicable law.
SECTION 802. Call of Meetings by Trustee.
The Trustee for any series may at any time call a meeting of
Holders of such series to take any action specified in Section 801, to be
held at such time or times and at such place or places as the Trustee for
such series shall determine. Notice of every meeting of the Holders of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given to
Holders of such series in the manner and to the extent provided in Section
105. Such notice shall be given not less than 20 days nor more than 90
days prior to the date fixed for the meeting.
SECTION 803. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of the
Outstanding Debt Securities of a series or of all series, as the case may
be, shall have requested the Trustee for such series to call a meeting of
Holders of any or all such series by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have given the notice of such meeting within 20 days
after the receipt of such request, then the Company or such Holders may
determine the time or times and the place or places for such meetings and
may call such meetings to take any action authorized in Section 801, by
giving notice thereof as provided in Section 802.
SECTION 804. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall
be (a) a Holder of a Debt Security of the series with respect to which such
meeting is being held or (b) a Person appointed by an instrument in writing
as agent or proxy by such Holder. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of the Trustee for the series with respect to which such meeting is being
held and its counsel and any representatives of the Company and its
counsel.
SECTION 805. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee for any series may make such reasonable regulations as it may deem
advisable for any meeting of Holders of such series, in regard to proof of
the holding of Debt 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.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of such series as provided in Section
803, in which case the Company or the Holders 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 a majority vote of the meeting.
49
Subject to the provisos in the definition of "Outstanding," at
any meeting each Holder of a Debt Security of the series with respect to
which such meeting is being held or proxy therefor shall be entitled to one
vote for each $1,000 principal amount (or such other amount as shall be
specified as contemplated by Section 301) of Debt 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 Debt 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 other than by
virtue of Outstanding Debt Securities of such series held by him or
instruments in writing duly designating him as the person to vote on behalf
of Holders of Debt Securities of such series. Any meeting of Holders with
respect to which a meeting was duly called pursuant to the provisions of
Section 802 or 803 may be adjourned from time to time by a majority of such
Holders present and the meeting may be held as so adjourned without further
notice.
SECTION 806. Voting.
The vote upon any resolution submitted to any meeting of Holders
with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of
their representatives by proxy and the serial number or numbers of the Debt
Securities 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 in duplicate of the
proceedings of each meeting of Holders 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
transmitted as provided in Section 802. The record shall show the serial
numbers of the Debt Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 807. No Delay of Rights by Meeting.
Nothing contained in this Article Eight shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Holders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to any Holder under any of the
provisions of this Indenture or of the Debt Securities of any series.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 901. Company May Consolidate, etc., Only on Certain Terms.
50
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "successor corporation") shall be a
corporation organized and existing under the laws of the United States
of America or any state or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Debt Securities and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time,
or both would become an Event of Default, shall have happened and be
continuing; and
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance that would not be permitted by this Indenture, the
Company or such successor corporation or Person, as the case may be,
shall take such steps as shall be necessary effectively to secure all
Debt Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 902. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation,
or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 901, the
successor corporation 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 corporation had been named as the Company herein, and thereafter
the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Debt Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. Supplemental Indentures Without Consent of Holders.
51
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by such successor of the covenants of the
Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities appertaining
thereto (and if such covenants are to be for the benefit of less than
all series, stating that such covenants are expressly being included
solely for the benefit of such series), or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be applicable to less than all series, stating that
such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Debt Security of any
series created prior to the execution of such supplemental indenture
that is entitled to the benefit of such provision and as to which such
supplemental indenture would apply; or
(5) to secure the Debt Securities; or
(6) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Debt Securities pursuant to
Article Four or Article Fourteen, provided that any such action shall
not adversely affect the interests of the Holders of Debt Securities
of such series or any other series of Debt Securities in any material
respect; or
(7) to establish the form or terms of Debt Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Debt Securities 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 609; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with any provision of this Indenture, provided such other
provisions shall not adversely affect the interests of the Holders of
Outstanding Debt Securities of any series created prior to the
execution of such supplemental indenture in any material respect; or
(10) to change any place or places where (1) the principal of and
52
premium, if any, and interest, if any, on all or any series of Debt
Securities shall be payable, (2) all or any series of Debt Securities
may be surrendered for registration or transfer, (3) all or any series
of Debt Securities may be surrendered for exchange, and (4) notices
and demands to or upon the Company in respect of all or any series of
Debt Securities and this Indenture may be served.
SECTION 1002. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected
by such supplemental indenture voting separately, 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 under this Indenture of
such Debt Securities; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each outstanding Debt
Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the
principal amount thereof or the interest thereon or any premium
payable upon redemption thereof, or change the Currency or Currencies
in which the principal of (and premium, if any) or interest on such
Debt Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502, or adversely affect the right of repayment or repurchase,
if any, at the option of the Holder, or reduce the amount of, or
postpone the date fixed for, any payment under any sinking fund or
analogous provisions for any Debt Security, or impair the right to
institute suit for the enforcement of any 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 Debt Securities of any series, the consent of whose
Holders is required for any 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 513
or Section 1109, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1109, or the deletion of this proviso, in
accordance with the requirements of Sections 609 and 1001(7).
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
53
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture with respect to one or more particular
series of Debt Securities or which modifies the rights of the Holders of
Debt Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Debt Securities of any other series.
SECTION 1003. 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 any incorporated provisions) 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 adversely affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise in a
material way.
SECTION 1004. 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 Debt Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 1005. 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 1006. Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Debt 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 Debt Securities of such series.
SECTION 1007. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 1002, the Company
shall transmit, in the manner and to the extent provided in Section 105, to
all Holders of any series of the Debt Securities affected thereby, a notice
setting forth in general terms the substance of such supplemental
indenture.
ARTICLE ELEVEN
54
COVENANTS
SECTION 1101. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series
of Debt Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Debt Securities in accordance
with the terms of the Debt Securities and this Indenture.
SECTION 1102. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for each
series of Debt Securities an office or agency where Debt Securities of that
series may be presented or surrendered for payment, where Debt 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 Debt
Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all presentations, surrenders, notices and demands.
SECTION 1103. Money for Debt Securities; Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of the
Debt Securities of such 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 of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities, it will, by or on each due date
of the principal (and premium, if any) or interest on any Debt Securities
of such series, deposit with any such 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 thereto, and
(unless any such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any
series of Debt Securities other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such 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
55
any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest
on the Debt Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series and
remaining unclaimed for two years after such principal (and premium, if
any) or interest has became due and payable shall be paid to the Company
upon Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Debt Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense
of the Company cause to be transmitted in the manner and to the extent
provided by Section 105, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from
the date of such notification, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1104. Corporate Existence.
Subject to Article Nine, 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
such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company.
SECTION 1105. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not
more than four months after the end of each fiscal year of the Company
ending after the date hereof, an Officers' Certificate stating whether or
not to the best knowledge of the signers thereof the Company is in default
in the performance and observation of any of the terms, provisions and
conditions of this Indenture, and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which they may have
knowledge.
56
ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES
SECTION 1201. Applicability of Article.
Debt Securities of any series that are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1202. Election to Redeem; Notice to Trustee.
The election of the Company to redeem (or, in the case of
Discount Securities, to permit the Holders to elect to surrender for
redemption) any Debt Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all
of the Debt Securities of any series pursuant to Section 1204, the Company
shall, at least 60 days prior 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 Debt
Securities of such series to be redeemed. In the case of any redemption of
Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restrictions.
SECTION 1203. Selection by Trustee of Debt Securities to Be Redeemed.
If less than all the Debt Securities of any series are to be
redeemed at the election of the Company, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Debt Securities of such series
not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Debt Securities of such series or any integral multiple thereof) of the
principal amount of Debt Securities of such series in a denomination larger
than the minimum authorized denomination for Debt Securities of such series
pursuant to Section 302 in the Currency in which the Debt Securities of
such series are denominated. The portions of the principal amount of Debt
Securities so selected for partial redemption shall be equal to the minimum
authorized denominations for Debt Securities of such series pursuant to
Section 302 in the Currency in which the Debt Securities of such series are
denominated or any integral multiple thereof, except as otherwise set forth
in the applicable form of Debt Securities. In any case where more than one
Debt Security of such series is registered in the same name, the Trustee in
its discretion may treat the aggregate principal amount so registered as if
it were represented by one Debt Security of such series.
The Trustee shall promptly notify the Company in writing of the
Debt Securities selected for redemption and, in the case of any Debt
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 Debt Securities
shall relate, in the case of any Debt Security redeemed or to be redeemed
57
only in part, to the portion of the principal amount of such Debt Security
that has been or is to be redeemed.
SECTION 1204. Notice of Redemption.
Notice of redemption 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, not less than 30 days and not more than 60 days prior to the
Redemption Date to the Holders of Debt Securities of any series to be
redeemed in whole or in part pursuant to this Article Twelve, in the manner
provided in Section 105. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. Failure to give such notice, or any defect in such notice to the
Holder of any Debt Security of a series designated for redemption, in whole
or in part, shall not affect the sufficiency of any notice of redemption
with respect to the Holder of any other Debt Security of such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the
terms of the Debt Securities of such series or a supplemental
indenture establishing such series, if such be the case, together with
a brief statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities
to be redeemed,
(5) that on the Redemption Date the Redemption Price will become
due and payable upon each such Debt Security to be redeemed, and that
interest thereon, if any, shall cease to accrue on and after said
date,
(6) the Place or Places of Payment where such Debt Securities
are to be surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the
case.
SECTION 1205. Deposit of Redemption Price.
On or prior to the Redemption Date for any Debt Securities, 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 1103) an amount of money in the Currency or Currencies
in which such Debt Securities are denominated (except as provided pursuant
to Section 301) sufficient to pay the Redemption Price of such Debt
Securities or any portions thereof that are to be redeemed on that date.
SECTION 1206. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, any Debt
58
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt
Securities of such series are payable (except as otherwise specified
pursuant to Sections 301 or 310), and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Debt
Securities shall cease to bear interest. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security
shall be paid by the Company at the Redemption Price; provided, however,
that, unless otherwise specified as contemplated by Section 301,
installments of interest on Debt Securities that have a Stated Maturity or
on prior to the Redemption Date for such Debt Securities shall be payable
according to the terms of such Debt Securities and the provisions of
Section 307.
If any Debt 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
prescribed therefor in the Debt Security.
SECTION 1207. Debt Securities Redeemed in Part.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of
the Company as is specified pursuant to Section 301 with, if the Company,
the Security Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Security Registrar 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 Debt
Security without service charge, a new Debt Security or Debt Securities of
the same series, of like tenor and form, 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 Debt Security
so surrendered. In the case of a Debt Security providing appropriate space
for such notation, at the option of the Holder thereof, the Trustee, in
lieu of delivering a new Debt Security or Debt Securities as aforesaid, may
make a notation on such Debt Security of the payment of the redeemed
portion thereof.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article.
If, pursuant to Section 301, provision is made for the defeasance
of Debt Securities of a series, and if the Debt Securities of such series
are denominated and payable only in Dollars (except as provided pursuant to
Section 301) then the provisions of this Article shall be applicable except
as otherwise specified pursuant to Section 301 for Debt Securities of such
series. Defeasance provisions, if any, for Debt Securities denominated in
a Foreign Currency or Currencies may be specified pursuant to Section 301.
SECTION 1302. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
59
At the Company's option, either (a) the Company shall be deemed
to have been Discharged (as defined below) from its obligations with
respect to Debt Securities of any series on the 91st day after the
applicable conditions set forth below have been satisfied or (b) the
Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Sections 901, 1105, 1106, 1107 and 1108
with respect to Debt Securities of any series (and, if so specified
pursuant to Section 301, any other restrictive covenant added for the
benefit of such series pursuant to Section 301) at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Debt Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations (as defined below) which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest
on, the Outstanding Debt Securities of such series on the dates such
installments of interest or principal and premium are due;
(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's
exercise of its option under this Section would not cause such Debt
Securities to be delisted;
(4) no Event of Default or event (including such deposit) which,
with notice or lapse of time or both, would become an Event of Default
with respect to the Debt Securities of such series shall have occurred
and be continuing on the date of such deposit and no Event of Default
under Section 501(5) or Section 501(6) or event which with the giving
of notice or lapse of time, or both, would become an Event of Default
under Section 501(5) or Section 501(6) shall have occurred and be
continuing on the 91st day after such date; and
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Debt Securities of
such series will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit, defeasance or Discharge.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations
under, the Debt Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Debt Securities of such
series (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except (A) the rights of
Holders of Debt Securities of such series to receive, from the trust fund
60
described in clause (1) above, payment of the principal of (and premium, if
any) and interest on such Debt Securities when such payments are due, (B)
the Company's obligations with respect to the Debt Securities of such
series under Sections 304, 305, 306, 1103 and 1303 and (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged, or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by
such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
SECTION 1303. Deposit Moneys and U.S. Government Obligations to be Held in
Trust.
All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 1302 in respect of Debt Securities of a series
shall be held in trust and applied by it, in accordance with the provisions
of such Debt Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Debt
Securities, of all sums due and to become due thereon for principal (and
premium, if any) and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 1304. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return to
the Company upon Company Request any moneys or U.S. Government Obligations
held by them at any time that are not required for the payment of the
principal of (and premium, if any) and interest on the Debt Securities of
any series for which money or U.S. Government Obligations have been
deposited pursuant to Section 1302.
The provisions of the last paragraph of Section 1103 shall apply
to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any series of
Debt Securities for which money or U.S. Government Obligations have been
deposited pursuant to Section 1302.
61
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.
KIRBY CORPORATION
By:
Print Name:
Title:
Attest:
By:
Print Name:
Title:
Seal
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By:
Print Name:
Title:
Attest:
By:
Print Name:
Title:
Seal
62
STATE OF )
) ss:
COUNTY OF )
On the ____ day of October, 1994, before me personally came
__________________________________ to me known, who, being by me duly
s w o r n , d i d d e p o s e a n d s a y t h a t h e i s
_______________________________________ of Kirby Corporation, one of the
corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
Notary Public
SEAL
63
STATE OF )
) ss:
COUNTY OF )
On the ____ day of October, 1994, before me personally came
_______________________________ to me known, who, being by me duly sworn,
did depose and say that he is __________________________________ of Texas
Commerce Bank National Association one of the entities described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
association, and that he signed his name thereto by like authority.
Notary Public
SEAL
64
KIRBY CORPORATION AND CONSOLIDATED SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(In thousands, except for ratio amounts)
Years ended December 31, Six months ended
June 30,
1989 1990 1991 1992 1993 1993 1994
Earnings
before taxes
on income $ 11,260 19,103 17,848 18,729 35,324 15,409 9,776
Plus fixed
charges:
Interest
expense 5,055 6,304 5,965 9,411 8,416 4,750 3,766
Interest
element
of
rental
expense* 384 371 317 973 1,143 572 600
5,439 6,675 6,282 10,384 9,559 5,322 4,366
Earnings
before
taxes on
income
before
fixed
charges $ 16,699 25,778 24,130 29,113 44,883 20,731 14,142
Ratio of
earnings to
fixed charges 3.07 3.86 3.84 2.80 4.70 3.90 3.24
* The interest element of rental expense is one-third of rental expense,
which is considered to be representative of the interest factor.
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Kirby Corporation
We consent to the use of our reports incorporated herein by
reference and to the reference to our firm under the heading of
"Experts" in the prospectus.
Our reports refer to changes in the methods of accounting for
income taxes, postretirement benefits other than pensions,
certain investments in debt and equity securities and accounting
and reporting for reinsurance of short-duration and long-duration
contracts.
KPMG Peat Marwick LLP
Houston, Texas
October 26, 1994
Exhibit 23.3
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement
of Kirby Corporation on Form S-3 of our reports dated March 2, 1992, except
for Note 2 as to which the date is March 18, 1992 (relating to Kirby
Corporation and subsidiaries) and February 28, 1994 (relating to Universal
Insurance Company and subsidiaries not presented separately herein),
appearing in the Annual Report on Form 10-K of Kirby Corporation for the
year ended December 31, 1993 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
October 26, 1994
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)______
_______________
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
74-0800980
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
712 MAIN STREET 77002
HOUSTON, TEXAS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
___________________
KIRBY CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
NEVADA 74-1884980
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1775 ST. JAMES PLACE, SUITE 300
HOUSTON, TEXAS 77056
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
(See Note on Page 5.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES
OF THE TRUSTEE:
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
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, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13 .
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF THE ACT
ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER INDENTURE, INCLUDING
A STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL RANK AS COMPARED WITH THE
SECURITIES ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY THE
TRUSTEE.
COL. A COL. B COL. C COL. D
WHETHER THE AMOUNT OWNED
SECURITIES BENEFICIALY OR HELD PERCENT OF CLASS
ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY
OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN
TITLE OF CLASS SECURITIES IN DEFAULT IN COL. C
-------------- ------------ ----------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
-------------- ------------ ----------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES
OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
-------------- ------------ ----------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
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.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
-------------- ------------ ----------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 5.)
(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, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series. (See
Note on Page 5.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
1 -- A copy of the articles of association of the trustee 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 corporate trust powers.
4 -- A copy of the existing by-laws of the trustee.
5 -- Not applicable.
*6 -- The consent of the trustee required by Section 321(b) of the Act.
7 -- A copy of the latest report of condition of the trustee published pursuant to law
or the requirements of its supervising or examining authority.
8 -- Not applicable.
9 -- Not applicable.
- -------------
* Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to
the Form S-11 File No. 33-25132.
# Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as an exhibit to
the Form S-3 File No. 33-42814.
_______________________________
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2 and 13, the
answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-1.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF HOUSTON
AND STATE OF TEXAS, ON THE 25TH DAY OF OCTOBER, 1994.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Susan Sult
---------------------
Susan Sult
Assistant Vice President and
Trust Officer
EXHIBIT 1
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
FIRST: The title of this Association shall be TEXAS COMMERCE BANK NATIONAL
ASSOCIATION.
SECOND: The main office of the Association shall be in Houston, County of
Harris, State of Texas. The general business of the Association shall be
conducted at its main office and its branches.
THIRD: The Board of Directors of this Association shall consists of not
less than five nor more than twenty-five qualified persons, the exact number of
Directors within such minimum and maximum limits to fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of
Directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified therefor in the
Bylaws, but if no election is held on that day, it may be held on any subsequent
day according to the provisions of law; and all elections shall be held
according to such lawful regulations as may be prescribed by the Board of
Directors.
Nominations for election to the Board of Directors may be made by the Board of
Directors or by any shareholder of any outstanding class of capital stock of the
Association entitled to vote for election of directors. Nominations, other than
those made by or on behalf of the existing management of the Association, shall
be made in writing and shall be delivered or mailed to the Chairman or the
President of the Association and to the Comptroller of the Currency, Washington,
D. C., not less than 14 days nor more than 50 days prior to any meeting of
shareholders called for the election of directors; provided, however, that if
less than 21 days notice of the meeting is given to the shareholder, such
nomination shall be mailed or delivered to the Chairman or President of the
Association and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the Association that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the Association
owned by the notifying shareholder. Nominations not made in accordance herewith
may, in his discretion, be disregarded by the Chairman of the meeting and, upon
his instructions, the vote tellers may disregard all votes for each such
nominee.
FIFTH: The amount of authorized capital stock of this Association shall be
$612,895,000
divided into 61,289,500 shares of common stock of the par value per
share of Ten Dollars ($10.00), but said capital stock may be increased or
decreased from time to time, in accordance with the provisions of the laws of
the United States.
No holder of shares of the capital stock of any class of this Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of this Association, whether now or hereafter authorized, or to
any obligations convertible into stock of this Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH: The Board of Directors shall appoint one of its members President
of this Association, who shall be Chairman of the Board, unless the Board
appoints another director to be the Chairman. The Board of Directors shall have
the power to appoint one or more Vice Presidents and to appoint a Cashier and
such other officers and employees as may be required to transact the business of
this Association.
The Board of Directors shall have the power to define the duties of the officers
and employees of the Association; to fix the salaries to be paid to them; to
dismiss them; to require bonds from them and to fix the penalty thereof; to
regulate the manner in which any increase of the capital of the Association
shall be made; to manage and administer the business and affairs of the
Association; to make all Bylaws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH: The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of the City of
Houston, Texas, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency, and shall have the power to
establish or change the location of any branch or branches of the Association to
any other location, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency.
EIGHTH: The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH: The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than 25 percent of the stock of
this Association, may call a special meeting of shareholders at any time.
Unless otherwise provided by the laws of the United States, a notice of the
time, place and purpose of every annual and special meeting of the shareholders
shall be given by first class mail, postage prepaid, mailed at least ten days
prior to the date of such meeting to each shareholder of record at his address
as shown upon the books of this Association.
TENTH: No director of this Association shall be liable to this Association
or its shareholders
for monetary damages for an act or omission in the director's capacity as a
director, except for liability for (i) a breach of a director's duty of loyalty
to this Association or its shareholders, (ii) an act or omission not in good
faith or that involves intentional misconduct or a knowing violation of the law,
(iii) a transaction from which a director received an improper benefit, whether
or not the benefit resulted from an action taken within the scope of the
director's office, (iv) an act or omission for which the liability of a director
is expressly provided for by statute, or (v) an act related to an unlawful stock
repurchase or payment of a dividend. If the Texas Business Corporation Act, the
Texas Miscellaneous Corporation Laws Act or other applicable state or federal
banking law or regulation is amended after approval by the shareholders of this
article to authorize corporate action further eliminating or limiting the
liability of directors, then the liability of a director of this Association
shall be eliminated or limited to the fullest extent permitted by the Texas
Business Corporation Act, the Texas Miscellaneous Corporation Laws Act or other
applicable state law or Federal banking law or regulation as so amended or
enacted.
Any repeal or modification of the foregoing paragraph by the shareholders shall
not adversely affect any right or protection of a director existing at the time
of such repeal or modification.
ELEVENTH: These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount.
Exhibit 4
BYLAWS OF
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
__________
SECTION 1: MEETINGS OF SHAREHOLDERS
SECTION 1.1. ANNUAL MEETINGS. The annual meeting of the shareholders of
the Association for the election of directors and for the transaction of such
other business as properly may come before such meeting, shall be held at the
principal banking office of the Association in Houston, Texas, or such other
place authorized by the Board of Directors ("Board"), at 10:30 a.m. on the
Wednesday before the third Tuesday in January or as soon thereafter as
practicable if, for any reason, the meeting cannot be held at such time or on
such date. The Chairman of the Board (hereinafter "Chairman") and the Secretary
of the Association shall act as Chairman and Secretary, respectively, of the
meeting.
SECTION 1.2. SPECIAL MEETINGS. Special meetings of the shareholders of
the Association may be called by the Chairman or upon the direction of a
majority of the Board.
SECTION 1.3. NOTICE. Unless otherwise provided by law or by the Articles
of Association, a notice of the time, place and purpose of every annual and
special meeting of the shareholders shall be given by first class mail, postage
prepaid, mailed at least ten days prior to the date of such meeting to each
shareholder of record at the shareholder's address as shown on the books of the
Association.
SECTION 1.4. PROXIES. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of the Association shall act as proxy. Proxies shall be valid only for the
meeting specified therein and any adjournments thereof.
SECTION 1.5. VOTING RIGHTS. Except as otherwise provided by law or these
Bylaws, each shareholder shall be entitled to one vote for each share of stock
held, and a majority of votes cast shall decide each matter submitted for a
vote.
SECTION 1.6 RECORD DATE. The record date for determining those
shareholders who shall have the right to receive notice of and to vote at
meetings of shareholders shall be set by the Board or, if the Board fails to set
such date, by the Chairman. The record date shall be not less than ten and not
more than fifty days prior to the date of the meeting.
SECTION 2: DIRECTORS
SECTION 2.1. NUMBER. Unless applicable law shall permit a greater number,
the Board of the Association shall consist of such persons, not less than five
nor more than twenty-five, as from time to time shall be fixed and determined by
a majority of the full Board or by resolution of a majority of the outstanding
shares of stock of the Association at the annual or any special meeting of the
shareholders.
SECTION 2.2. TERM. The directors of the Association shall hold office
until the annual meeting of shareholders next following their election and until
their successors have been elected and qualified unless removed according to the
provisions of the Articles of Association or these Bylaws.
SECTION 2.3. VACANCIES. Any vacancies occurring in the Board for any
reason may, subject to the provisions of Section 2.1. hereof, be filled by a
vote of a majority of the remaining directors, and any director so appointed
shall hold office until the next annual meeting of shareholders or until a
successor is elected.
SECTION 2.4. ANNUAL MEETINGS. Following the annual meeting of the
shareholders, the Chairman or the Secretary of the meeting shall notify the
directors-elect of their election, and they shall meet promptly for the purposes
of electing officers of the Association for the ensuing year and for the
transaction of such organizational and other business as properly may come
before the meeting.
SECTION 2.5. REGULAR MEETINGS. Regular meetings of the Board shall be
held without notice at 10:30 a.m. on the Wednesday before the third Tuesday of
each January, April, July and October. Regular meetings of the Board also shall
be held each June and December on such date and at such time as the Chairman
may prescribe, with notice of such meetings to be given to each member of the
Board by telegram, letter, telephone, telecopy or in person. Such meetings
shall be held at the principal office of the Association. If any regular
meeting of the Board shall fall upon a holiday, the meeting shall be held at the
time and place specified in this Section on the next banking business day unless
some other date shall be designated by a majority of the Board. A special
meeting may be held in lieu of a regular meeting in any given calendar month.
SECTION 2.6. SPECIAL MEETINGS. Special meetings of the Board may be
called either by the Chairman, or in his absence, by the President, or in his
absence, by any of the Vice Chairmen of the Board, or at the request of three or
more directors. Each member of the Board shall be given notice by telegram,
letter, telephone, telecopy or in person stating the time, place and purpose of
each such meeting.
SECTION 2.7. QUORUM. For the transaction of business, a quorum of the
Board shall consist of not less than a majority of the entire Board then in
office. If, at the time fixed for any meeting, a quorum is not present, the
directors in attendance may adjourn the meeting from time to time until a quorum
is obtained. The majority of those directors present and voting at any meeting
of the Board shall decide each matter considered.
SECTION 2.8. ADVISORY DIRECTORS. The Board may appoint such advisory
directors as it may deem appropriate, each of whom shall hold office until the
next annual meeting of the directors following their elections. The advisory
directors of the Association shall have the right to attend the meetings of the
Board held each January, April, July and October and to advise with the Board
concerning the affairs of the Association, but advisory directors shall not have
the right to vote.
SECTION 2.9. RETIREMENT OF DIRECTORS. No person shall be elected to
serve as a director or an advisory director of the Association who has attained
68 years of age at the time of such election except in accordance with this
Section. Notwithstanding the foregoing, any director or advisory director of
the Association who, at the time of the adoption of these Bylaws, is not
eligible under the foregoing provision to be elected to such office may be
elected to serve in such capacity for one additional term. Any director or
advisory director of the Association who, during his or her term of office,
ceases to be eligible under the foregoing provision to be elected to such office
may continue to serve the remainder of his or her term of office until the next
annual meeting of shareholders.
SECTION 3: OFFICERS
SECTION 3.1. CHAIRMAN. There shall be a Chairman, as designated by the
Board. The Chairman shall preside at all meetings of the Board. The Chairman
shall preside at all meetings of the Loan and Discount Committee at which the
Chairman is present, unless the Chairman shall elect to delegate this duty and
responsibility to another officer. The Chairman shall have supervision over and
exercise general executive and administrative powers relating to all of the
operations and business of the Association. The Chairman shall from time to
time assign all officers of this Association their respective powers, duties and
responsibilities and shall have and exercise such other powers and duties as
from time to time may be conferred upon the Chairman or assigned to the Chairman
of the Board.
SECTION 3.2. PRESIDENT. The President shall be a member of the Board.
The President shall have and may exercise any and all other powers and duties
pertaining by law, regulation or practice to the office of president or imposed
by these Bylaws. The President shall perform such executive and administrative
duties as may be assigned to the President by the Board, and in the case of the
absence or inability of the Chairman to act, the President shall perform the
duties of the Chairman during such absence or inability.
SECTION 3.3. VICE CHAIRMAN. The Board may appoint one or more of its
directors as Vice Chairmen. During the absence of the Chairman and the
President, the Vice Chairmen, in the order of their seniority as Vice Chairmen,
shall preside at the meetings of the Board. Each Vice Chairman shall perform
such executive and administrative duties as may be assigned to such Vice
Chairman by the Chairman.
SECTION 3.4. EXECUTIVE TRUST OFFICER. There shall be an Executive Trust
Officer of the Association, appointed by the Board, whose duties shall be to
manage, supervise and direct all of the activities of the Trust Department. The
Board may appoint other trust officers as it may deem appropriate with such
duties as may be designated by the Board or by the Executive Trust Officer.
SECTION 3.5. SECRETARY AND ASSISTANT SECRETARIES. The Board shall appoint
a Secretary, or other designated officer, who shall be secretary of the Board
and of the Association and shall keep accurate minutes of all meetings. The
Secretary shall attend to the giving of all notices required by these Bylaws;
shall be custodian of the corporate seal, records, documents and papers of the
Association; shall have and may exercise any and all other powers and duties
pertaining by law, regulation or practice, to the office of secretary or
cashier, or imposed by these Bylaws; and also shall perform such duties as may
be assigned from time to time by the Board or the Chairman. The Board may
appoint one or more Assistant Secretaries and/or a Cashier, and each of the
Assistant Secretaries and Cashier so appointed shall have the same authority
provided by these Bylaws to the Secretary and such other duties as may be
assigned by the Board or the Chairman.
SECTION 3.6. OTHER OFFICERS. The Board may appoint one or more Executive
Vice Presidents, one or more Senior Vice Presidents, one or more Vice
Presidents, and such other officers with such titles as may from time to time be
deemed appropriate for the transaction of the business of the Association. Each
such officer shall have such duties as from time to time may be assigned to such
officer by the Chairman.
SECTION 3.7. TERM OF OFFICE. The Chairman, the Vice Chairmen and the
President shall hold their offices for the current year for which the Board, of
which they are members or advisory members, was elected unless they shall
resign, become disqualified or be removed. Such officers may be removed by the
Board with or without cause. Any vacancy occurring in such offices shall be
filled by the Board. All other persons shall hold the offices to which they are
elected subject to removal by the Chairman or by the Board.
SECTION 3.8. RECORDS OF THE ASSOCIATION. The Secretary shall be
responsible for the minute books of the Association, the organizational papers
of the Association, the Articles of Association, the returns of elections, the
Bylaws, the proceedings of regular and special meetings of the Board and of the
shareholders and the reports of the committees of the Board. The minutes of
each meeting shall be signed by either the Secretary or an Assistant Secretary
or the person acting in such capacity in the absence of the Secretary or an
Assistant Secretary and approved by the officer presiding at such meeting.
EXHIBIT 7
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RI-1
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Consolidated Report of Income
for the period January 1, 1994-June 30, 1994
All Report of Income schedules are to be reported on a calendar year-to-date basis in thousands of dollars.
Schedule RI--Income Statement
__________
| I480 | (-
____________ ________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
_______________________________________________________________________________________________ ____________________
1. Interest income: | ////////////////// |
a. Interest and fee income on loans: | ////////////////// |
(1) In domestic offices: | ////////////////// |
(a) Loans secured by real estate ................................................... | 4011 88,779 | 1.a.(1)(a)
(b) Loans to depository institutions ............................................... | 4019 962 | 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to farmers ............ | 4024 2,591 | 1.a.(1)(c)
(d) Commercial and industrial loans ................................................ | 4012 118,060 | 1.a.(1)(d)
(e) Acceptances of other banks ..................................................... | 4026 0 | 1.a.(1)(e)
(f) Loans to individuals for household, family, and other personal expenditures: | ////////////////// |
(1) Credit cards and related plans ............................................. | 4054 6,291 | 1.a.(1)(f)(1)
(2) Other ...................................................................... | 4055 46,035 | 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions ......................... | 4056 7,561 | 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and political | ////////////////// |
subdivisions in the U.S.: | ////////////////// |
(1) Taxable obligations ........................................................ | 4503 109 | 1.a.(1)(h)(1)
(2) Tax-exempt obligations ..................................................... | 4504 1,557 | 1.a.(1)(h)(2)
(i) All other loans in domestic offices ............................................ | 4058 40,417 | 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs ...................... | 4059 5,622 | 1.a.(2)
b. Income from lease financing receivables: | ////////////////// |
(1) Taxable leases ..................................................................... | 4505 7,961 | 1.b.(1)
(2) Tax-exempt leases .................................................................. | 4307 0 | 1.b.(2)
c. Interest income on balances due from depository institutions:(1) | ////////////////// |
(1) In domestic offices ................................................................ | 4105 93 | 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs ...................... | 4106 0 | 1.c.(2)
d. Interest and dividend income on securities: | ////////////////// |
(1) U.S. Treasury securities and U.S. Government agency and corporation obligations .... | 4027 93,097 | 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.: | ////////////////// |
(a) Taxable securities ............................................................. | 4506 35 | 1.d.(2)(a)
(b) Tax-exempt securities .......................................................... | 4507 99 | 1.d.(2)(b)
(3) Other domestic debt securities ..................................................... | 3657 8,368 | 1.d.(3)
(4) Foreign debt securities ............................................................ | 3658 41 | 1.d.(4)
(5) Equity securities (including investments in mutual funds) .......................... | 3659 1,394 | 1.d.(5)
e. Interest income from assets held in trading accounts ................................... | 4069 619 | 1.e.
______________________
____________
(1) Includes interest income on time certificates of deposit not held in trading accounts.
3
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RI-2
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RI--Continued
________________
Dollar Amounts in Thousands | Year-to-date |
___________________________________________________________________________________ ______________
1. Interest income (continued) | RIAD Bil Mil Thou |
f. Interest income on 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 .................... | 4020 79,166 | 1.f.
g. Total interest income (sum of items 1.a through 1.f) ................ | 4107 508,857 | 1.g.
2. Interest expense: | ////////////////// |
a. Interest on deposits: | ////////////////// |
(1) Interest on deposits in domestic offices: | ////////////////// |
(a) Transaction accounts (NOW accounts, ATS accounts, and | ////////////////// |
telephone and preauthorized transfer accounts) .............. | 4508 13,934 | 2.a.(1)(a)
(b) Nontransaction accounts: | ////////////////// |
(1) Money market deposit accounts (MMDAs) ................... | 4509 13,159 | 2.a.(1)(b)(1)
(2) Other savings deposits .................................. | 4511 35,932 | 2.a.(1)(b)(2)
(3) Time certificates of deposit of $100,000 or more ........ | 4174 11,361 | 2.a.(1)(b)(3)
(4) All other time deposits ................................. | 4512 45,223 | 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement | ////////////////// |
subsidiaries, and IBFs .......................................... | 4172 6,490 | 2.a.(2)
b. Expense of 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 .................... | 4180 13,565 | 2.b.
c. Interest on demand notes issued to the U.S. Treasury and on | ////////////////// |
other borrowed money ................................................ | 4185 13,410 | 2.c.
d. Interest on mortgage indebtedness and obligations under | ////////////////// |
capitalized leases .................................................. | 4072 1,014 | 2.d.
e. Interest on subordinated notes and debentures ....................... | 4200 13,122 | 2.e.
f. Total interest expense (sum of items 2.a through 2.e) ............... | 4073 167,210 | 2.f.
___________________________
3. Net interest income (item 1.g minus 2.f) ............................... | ////////////////// | RIAD 4074 | 341,647 | 3.
___________________________
4. Provisions: | ////////////////// |
___________________________
a. Provision for loan and lease losses ................................. | ////////////////// | RIAD 4230 | (16,960)| 4.a.
b. Provision for allocated transfer risk ............................... | ////////////////// | RIAD 4243 | (2,290)| 4.b.
___________________________
5. Noninterest income: | ////////////////// |
a. Income from fiduciary activities .................................... | 4070 64,207 | 5.a.
b. Service charges on deposit accounts in domestic offices ............. | 4080 74,167 | 5.b.
c. Trading gains (losses) and fees from foreign exchange transactions .. | 4075 6,372 | 5.c.
d. Other foreign transaction gains (losses) ............................ | 4076 137 | 5.d.
e. Gains (losses) and fees from assets held in trading accounts ........ | 4077 5,825 | 5.e.
f. Other noninterest income: | ////////////////// |
(1) Other fee income ................................................ | 5407 45,405 | 5.f.(1)
(2) All other noninterest income* ................................... | 5408 17,507 | 5.f.(2)
___________________________
g. Total noninterest income (sum of items 5.a through 5.f) ............. | ////////////////// | RIAD 4079 | 213,620 | 5.g.
6. a. Realized gains (losses) on held-to-maturity securities .............. | ////////////////// | RIAD 3521 | 43 | 6.a.
b. Realized gains (losses) on available-for-sale securities ............ | ////////////////// | RIAD 3196 | 0 | 6.b.
___________________________
7. Noninterest expense: | ////////////////// |
a. Salaries and employee benefits ...................................... | 4135 197,684 | 7.a.
b. Expenses of premises and fixed assets (net of rental income) | ////////////////// |
(excluding salaries and employee benefits and mortgage interest) .... | 4217 57,793 | 7.b.
c. Other noninterest expense* .......................................... | 4092 149,246 | 7.c.
___________________________
d. Total noninterest expense (sum of items 7.a through 7.c) ............ | ////////////////// | RIAD 4093 | 404,723 | 7.d.
___________________________
8. Income (loss) before income taxes and extraordinary items and other | ////////////////// |
___________________________
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d)| ////////////////// | RIAD 4301 | 169,837 | 8.
9. Applicable income taxes (on item 8) .................................... | ////////////////// | RIAD 4302 | 65,051 | 9.
___________________________
10. Income (loss) before extraordinary items and other adjustments | ////////////////// |
___________________________
(item 8 minus 9) ....................................................... | ////////////////// | RIAD 4300 | 104,786 | 10.
_________________________________________________
____________
*Describe on Schedule RI-E--Explanations.
4
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RI-3
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RI--Continued
________________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
___________________________________________________________________________ ____________________
11. Extraordinary items and other adjustments: | ////////////////// |
a. Extraordinary items and other adjustments, gross of income taxes* . | 4310 0 | 11.a.
b. Applicable income taxes (on item 11.a)* ........................... | 4315 0 | 11.b.
c. Extraordinary items and other adjustments, net of income taxes | ////////////////// |
___________________________
(item 11.a minus 11.b) ............................................ | ////////////////// | RIAD 4320 | 0 | 11.c.
12. Net income (loss) (sum of items 10 and 11.c) ......................... | ////////////////// | RIAD 4340 | 104,786 | 12.
_________________________________________________
________________
Memoranda | Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
______________________________________________________________________________________________________ ____________________
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after | ////////////////// |
August 7, 1986, that is not deductible for federal income tax purposes .......................... | 4513 300 | M.1.
2. Fee income from the sale and servicing of mutual funds and annuities in domestic offices | ////////////////// |
(included in Schedule RI, item 5.g) ............................................................. | 8431 6,797 | M.2.
3. Estimated foreign tax credit included in applicable income taxes, items 9 and 11.b above ........ | 4309 0 | M.3.
4. To be completed only by banks with $1 billion or more in total assets: | ////////////////// |
Taxable equivalent adjustment to "Income (loss) before income taxes and extraordinary | ////////////////// |
items and other adjustments" (item 8 above) ..................................................... | 1244 0 | M.4.
5. Number of full-time equivalent employees on payroll at end of current period (round to | //// Number |
nearest whole number) ........................................................................... | 4150 9,424 | M.5.
______________________
Schedule RI-A--Changes in Equity Capital
Indicate decreases and losses in parentheses. __________
| I483 | (-
____________ ________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
______________________________________________________________________________________________________ ____________________
1. Total equity capital originally reported in the December 31, 1993, Reports of Condition | ////////////////// |
and Income ...................................................................................... | 3215 1,694,783 | 1.
2. Equity capital adjustments from amended Reports of Income, net* ................................. | 3216 0 | 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) ............................ | 3217 1,694,783 | 3.
4. Net income (loss) (must equal Schedule RI, item 12) ............................................. | 4340 104,786 | 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net .............................. | 4346 0 | 5.
6. Changes incident to business combinations, net .................................................. | 4356 181,120 | 6.
7. LESS: Cash dividends declared on preferred stock ................................................ | 4470 0 | 7.
8. LESS: Cash dividends declared on common stock ................................................... | 4460 130,000 | 8.
9. Cumulative effect of changes in accounting principles from prior years* (see instructions | ////////////////// |
for this schedule) .............................................................................. | 4411 0 | 9.
10. Corrections of material accounting errors from prior years* (see instructions for this schedule) | 4412 0 | 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities ................ | 8433 (34,404)| 11.
12. Foreign currency translation adjustments ........................................................ | 4414 0 | 12.
13. Other transactions with parent holding company* (not included in items 5, 7, or 8 above) ........ | 4415 20,978 | 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal Schedule RC, | ////////////////// |
item 28) ........................................................................................ | 3210 1,837,263 | 14.
______________________
____________
*Describe on Schedule RI-E--Explanations.
5
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RI-4
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RI-B--Charge-offs and Recoveries and Changes
in Allowance for Loan and Lease Losses
Part I. Charge-offs and Recoveries on Loans and Leases
Part I excludes charge-offs and recoveries through
the allocated transfer risk reserve.
__________
| I486 | (-
_________________________________ ________
| (Column A) | (Column B) |
| Charge-offs | Recoveries |
____________________ ____________________
| calendar year-to-date |
_________________________________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
1. Loans secured by real estate: | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ......................................... | 4651 1,879 | 4661 5,825 | 1.a.
b. To non-U.S. addressees (domicile) ..................................... | 4652 0 | 4662 0 | 1.b.
2. Loans to depository institutions and acceptances of other banks: | ////////////////// | ////////////////// |
a. To U.S. banks and other U.S. depository institutions .................. | 4653 0 | 4663 0 | 2.a.
b. To foreign banks ...................................................... | 4654 0 | 4664 0 | 2.b.
3. Loans to finance agricultural production and other loans to farmers ...... | 4655 0 | 4665 0 | 3.
4. Commercial and industrial loans: | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ......................................... | 4645 3,771 | 4617 5,843 | 4.a.
b. To non-U.S. addressees (domicile) ..................................... | 4646 0 | 4618 0 | 4.b.
5. Loans to individuals for household, family, and other personal | ////////////////// | ////////////////// |
expenditures: | ////////////////// | ////////////////// |
a. Credit cards and related plans ........................................ | 4656 1,101 | 4666 168 | 5.a.
b. Other (includes single payment, installment, and all student loans) ... | 4657 4,948 | 4667 2,447 | 5.b.
6. Loans to foreign governments and official institutions ................... | 4643 0 | 4627 545 | 6.
7. All other loans .......................................................... | 4644 467 | 4628 27 | 7.
8. Lease financing receivables: | ////////////////// | ////////////////// |
a. Of U.S. addressees (domicile) ......................................... | 4658 0 | 4668 0 | 8.a.
b. Of non-U.S. addressees (domicile) ..................................... | 4659 0 | 4669 2,001 | 8.b.
9. Total (sum of items 1 through 8) ......................................... | 4635 12,166 | 4605 16,856 | 9.
___________________________________________
___________________________________________
| Cumulative | Cumulative |
| Charge-offs | Recoveries |
| Jan. 1, 1986 | Jan. 1, 1986 |
Memoranda | through | through |
Dollar Amounts in Thousands | Dec. 31, 1989 | Report Date |
______________________________________________________________________________ ____________________ ____________________
To be completed by national banks only. | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
____________________ ____________________
1. Charge-offs and recoveries of Special-Category Loans, as defined for this | ////////////////// | ////////////////// |
Call Report by the Comptroller of the Currency ........................... | ////////////////// | 4784 13,632 | M.1.
___________________________________________
___________________________________________
| (Column A) | (Column B) |
Memorandum items 2 and 3 are to be completed by all banks. | Charge-offs | Recoveries |
____________________ ____________________
2. Loans to finance commercial real estate, construction, and land | calendar year-to-date |
_________________________________________
development activities (not secured by real estate) included in | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
____________________ ____________________
Schedule RI-B, part I, items 4 and 7, above .............................. | 5409 6 | 5410 275 | M.2.
3. Loans secured by real estate in domestic offices (included in | ////////////////// | ////////////////// |
Schedule RI-B, part I, item 1, above): | ////////////////// | ////////////////// |
a. Construction and land development ..................................... | 3582 0 | 3583 0 | M.3.a.
b. Secured by farmland ................................................... | 3584 0 | 3585 0 | M.3.b.
c. Secured by 1-4 family residential properties: | ////////////////// | ////////////////// |
(1) Revolving, open-end loans secured by 1-4 family residential | ////////////////// | ////////////////// |
properties and extended under lines of credit ..................... | 5411 0 | 5412 0 | M.3.c.(1)
(2) All other loans secured by 1-4 family residential properties ...... | 5413 912 | 5414 339 | M.3.c.(2)
d. Secured by multifamily (5 or more) residential properties ............. | 3588 0 | 3589 0 | M.3.d.
e. Secured by nonfarm nonresidential properties .......................... | 3590 967 | 3591 4,731 | M.3.e.
___________________________________________
6
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RI-5
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RI-B--Continued
Part II. Changes in Allowance for Loan and
Lease Losses and in Allocated
Transfer Risk Reserve
___________________________________________
| (Column A) | (Column B) |
| Allowance for | Allocated |
| Loan and Lease | Transfer Risk |
| Losses | Reserve |
____________________ ____________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
1. Balance originally reported in the December 31, 1993, Reports of | ////////////////// | ////////////////// |
Condition and Income ..................................................... | 3124 324,608 | 3131 2,290 | 1.
2. Recoveries (column A must equal part I, item 9, column B above) .......... | 4605 16,856 | 3132 0 | 2.
3. LESS: Charge-offs (column A must equal part I, item 9, column A above) ... | 4635 12,166 | 3133 0 | 3.
4. Provision (column A must equal Schedule RI, item 4.a; column B must | ////////////////// | ////////////////// |
equal Schedule RI, item 4.b) ............................................. | 4230 (16,960)| 4243 (2,290)| 4.
5. Adjustments* (see instructions for this schedule) ........................ | 4815 2,684 | 3134 0 | 5.
6. Balance end of current period (sum of items 1 through 5) (column A must | ////////////////// | ////////////////// |
equal Schedule RC, item 4.b; column B must equal Schedule RC, | ////////////////// | ////////////////// |
item 4.c) ................................................................ | 3123 315,022 | 3128 0 | 6.
___________________________________________
____________
*Describe on Schedule RI-E--Explanations.
Schedule RI-C--Applicable Income Taxes by Taxing Authority
Schedule RI-C is to be reported with the December Report of Income.
__________
| I489 | (-
____________ ________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
1. Federal ....................................................................................... | 4780 N/A | 1.
2. State and local................................................................................ | 4790 N/A | 2.
3. Foreign ....................................................................................... | 4795 N/A | 3.
4. Total (sum of items 1 through 3) (must equal sum of Schedule RI, items 9 and 11.b) ............ | 4770 N/A | 4.
____________________________
5. Deferred portion of item 4 ........................................ | RIAD 4772 | N/A | ////////////////// | 5.
__________________________________________________
7
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RI-6
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RI-D--Income from International Operations
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs where international operations
account for more than 10 percent of total revenues, total assets, or net income.
Part I. Estimated Income from International Operations
__________
| I492 | (-
______ ________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
_________________________________________________________________________________________________ ____________________
1. Interest income and expense booked at foreign offices, Edge and Agreement subsidiaries, | ////////////////// |
and IBFs: | ////////////////// |
a. Interest income booked ................................................................... | 4837 N/A | 1.a.
b. Interest expense booked .................................................................. | 4838 N/A | 1.b.
c. Net interest income booked at foreign offices, Edge and Agreement subsidiaries, and IBFs | ////////////////// |
(item 1.a minus 1.b) ..................................................................... | 4839 N/A | 1.c.
2. Adjustments for booking location of international operations: | ////////////////// |
a. Net interest income attributable to international operations booked at domestic offices .. | 4840 N/A | 2.a.
b. Net interest income attributable to domestic business booked at foreign offices .......... | 4841 N/A | 2.b.
c. Net booking location adjustment (item 2.a minus 2.b) ..................................... | 4842 N/A | 2.c.
3. Noninterest income and expense attributable to international operations: | ////////////////// |
a. Noninterest income attributable to international operations .............................. | 4097 N/A | 3.a.
b. Provision for loan and lease losses attributable to international operations ............. | 4235 N/A | 3.b.
c. Other noninterest expense attributable to international operations ....................... | 4239 N/A | 3.c.
d. Net noninterest income (expense) attributable to international operations (item 3.a | ////////////////// |
minus 3.b and 3.c) ....................................................................... | 4843 N/A | 3.d.
4. Estimated pretax income attributable to international operations before capital allocation | ////////////////// |
adjustment (sum of items 1.c, 2.c, and 3.d) ................................................. | 4844 N/A | 4.
5. Adjustment to pretax income for internal allocations to international operations to reflect | ////////////////// |
the effects of equity capital on overall bank funding costs ................................. | 4845 N/A | 5.
6. Estimated pretax income attributable to international operations after capital allocation | ////////////////// |
adjustment (sum of items 4 and 5) ........................................................... | 4846 N/A | 6.
7. Income taxes attributable to income from international operations as estimated in item 6 .... | 4797 N/A | 7.
8. Estimated net income attributable to international operations (item 6 minus 7) .............. | 4341 N/A | 8.
______________________
Memoranda ______________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
_________________________________________________________________________________________________ ____________________
1. Intracompany interest income included in item 1.a above ..................................... | 4847 N/A | M.1.
2. Intracompany interest expense included in item 1.b above .................................... | 4848 N/A | M.2.
______________________
Part II. Supplementary Details on Income from International Operations Required
by the Departments of Commerce and Treasury for Purposes of the U.S.
International Accounts and the U.S. National Income and Product Accounts
________________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
_________________________________________________________________________________________________ ____________________
1. Interest income booked at IBFs .............................................................. | 4849 N/A | 1.
2. Interest expense booked at IBFs ............................................................. | 4850 N/A | 2.
3. Noninterest income attributable to international operations booked at domestic offices | ////////////////// |
(excluding IBFs): | ////////////////// |
a. Gains (losses) and extraordinary items ................................................... | 5491 N/A | 3.a.
b. Fees and other noninterest income ........................................................ | 5492 N/A | 3.b.
4. Provision for loan and lease losses attributable to international operations booked at | ////////////////// |
domestic offices (excluding IBFs) ........................................................... | 4852 N/A | 4.
5. Other noninterest expense attributable to international operations booked at domestic offices | ////////////////// |
(excluding IBFs) ............................................................................ | 4853 N/A | 5.
--------------------
8
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RI-7
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RI-E--Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedules RI-A and RI-B, all extraordinary items and other adjustments in Schedule RI, and all
significant items of other noninterest income and other noninterest expense in Schedule RI. (See instructions for details.)
__________
| I495 | (-
______ ________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
1. All other noninterest income (from Schedule RI, item 5.f.(2)) | ////////////////// |
Report amounts that exceed 10% of Schedule RI, item 5.f.(2): | ////////////////// |
a. Net gains on other real estate owned ..................................................... | 5415 9,157 | 1.a.
b. Net gains on sales of loans .............................................................. | 5416 0 | 1.b.
c. Net gains on sales of premises and fixed assets .......................................... | 5417 0 | 1.c.
Itemize and describe the three largest other amounts that exceed 10% of | ////////////////// |
Schedule RI, item 5.f.(2): | ////////////////// |
_____________
d. | TEXT 4461 |______________________________________________________________________________| 4461 | 1.d.
___________
e. | TEXT 4462 |______________________________________________________________________________| 4462 | 1.e.
___________
f. | TEXT 4463 |______________________________________________________________________________| 4463 | 1.f.
_____________
2. Other noninterest expense (from Schedule RI, item 7.c): | ////////////////// |
a. Amortization expense of intangible assets ................................................ | 4531 33,268 | 2.a.
Report amounts that exceed 10% of Schedule RI, item 7.c: | ////////////////// |
b. Net losses on other real estate owned .................................................... | 5418 0 | 2.b.
c. Net losses on sales of loans ............................................................. | 5419 0 | 2.c.
d. Net losses on sales of premises and fixed assets ......................................... | 5420 0 | 2.d.
Itemize and describe the three largest other amounts that exceed 10% of | ////////////////// |
Schedule RI, item 7.c: | ////////////////// |
| ////////////////// |
_____________ FDIC Assessment | ////////////////// |
e. | TEXT 4464 |______________________________________________________________________________| 4464 17,938 | 2.e.
___________
f. | TEXT 4467 |______________________________________________________________________________| 4467 | 2.f.
___________
g. | TEXT 4468 |______________________________________________________________________________| 4468 | 2.g.
_____________
3. Extraordinary items and other adjustments (from Schedule RI, item 11.a) and | ////////////////// |
applicable income tax effect (from Schedule RI, item 11.b) (itemize and describe | ////////////////// |
all extraordinary items and other adjustments): | ////////////////// |
_____________
a. (1) | TEXT 4469 |__________________________________________________________________________| 4469 | 3.a.(1)
_____________
(2) Applicable income tax effect | RIAD 4486 | | ////////////////// | 3.a.(2)
_____________ ____________________________
b. (1) | TEXT 4487 |__________________________________________________________________________| 4487 | 3.b.(1)
_____________
(2) Applicable income tax effect | RIAD 4488 | | ////////////////// | 3.b.(2)
_____________ ____________________________
c. (1) | TEXT 4489 |__________________________________________________________________________| 4489 | 3.c.(1)
_____________
(2) Applicable income tax effect | RIAD 4491 | | ////////////////// | 3.c.(2)
____________________________
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A, | ////////////////// |
item 2) (itemize and describe all adjustments): | ////////////////// |
_____________
a. | TEXT 4492 |______________________________________________________________________________| 4492 | 4.a.
___________
b. | TEXT 4493 |______________________________________________________________________________| 4493 | 4.b.
_____________
5. Cumulative effect of changes in accounting principles from prior years (from | ////////////////// |
Schedule RI-A, item 9) (itemize and describe all changes in accounting principles): | ////////////////// |
_____________
a. | TEXT 4494 |______________________________________________________________________________| 4494 | 5.a.
___________
b. | TEXT 4495 |______________________________________________________________________________| 4495 | 5.b.
_____________
6. Corrections of material accounting errors from prior years (from Schedule RI-A, | ////////////////// |
item 10) (itemize and describe all corrections): | ////////////////// |
_____________
a. | TEXT 4496 |______________________________________________________________________________| 4496 | 6.a.
___________
b. | TEXT 4497 |______________________________________________________________________________| 4497 | 6.b.
_____________
9
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RI-8
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RI-E--Continued
________________
| Year-to-date |
----------------------
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
7. Other transactions with parent holding company (from Schedule RI-A, item 13) | ////////////////// |
(itemize and describe all such transactions): | ////////////////// |
| ////////////////// |
_____________ Capital Injection from Parent Company | ////////////////// |
a. | TEXT 4498 |______________________________________________________________________________| 4498 20,978 | 7.a.
___________
b. | TEXT 4499 |______________________________________________________________________________| 4499 | 7.b.
_____________
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, part II, | ////////////////// |
item 5) (itemize and describe all adjustments): | ////////////////// |
| ////////////////// |
_____________ Bank Acquisition | ////////////////// |
a. | TEXT 4521 |______________________________________________________________________________| 4521 2,684 | 8.a.
___________
b. | TEXT 4522 |______________________________________________________________________________| 4522 | 8.b.
_____________ ---------------------
9. Other explanations (the space below is provided for the bank to briefly describe, | I498 | I499 | (-
______________________
at its option, any other significant items affecting the Report of Income):
___
No comment | | (RIAD 4769)
___
Other explanations (please type or print clearly):
(TEXT 4769)
10
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-1
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
report the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
__________
| C400 | (-
____________ ________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
_________________________________________________________________________________________________ ____________________
ASSETS | ////////////////// |
1. Cash and balances due from depository institutions (from Schedule RC-A): | ////////////////// |
a. Noninterest-bearing balances and currency and coin(1) ................................... | 0081 1,952,721 | 1.a.
b. Interest-bearing balances(2) ............................................................ | 0071 5,011 | 1.b.
2. Securities: | ////////////////// |
a. Held-to-maturity securities (from Schedule RC-B, column A) .............................. | 1754 1,363,948 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ............................ | 1773 1,611,902 | 2.b.
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 ...................................................................... | 0276 4,622,525 | 3.a.
b. Securities purchased under agreements to resell ......................................... | 0277 47,547 | 3.b.
4. Loans and lease financing receivables: ____________________________| ////////////////// |
a. Loans and leases, net of unearned income (from Schedule RC-C) | RCFD 2122 | 9,706,261 | ////////////////// | 4.a.
b. LESS: Allowance for loan and lease losses ................... | RCFD 3123 | 315,022 | ////////////////// | 4.b.
c. LESS: Allocated transfer risk reserve ....................... | RCFD 3128 | 0 | ////////////////// | 4.c.
____________________________
d. Loans and leases, net of unearned income, | ////////////////// |
allowance, and reserve (item 4.a minus 4.b and 4.c) ..................................... | 2125 9,391,239 | 4.d.
5. Assets held in trading accounts ............................................................ | 3545 34,188 | 5.
6. Premises and fixed assets (including capitalized leases) ................................... | 2145 534,581 | 6.
7. Other real estate owned (from Schedule RC-M) ............................................... | 2150 106,753 | 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ... | 2130 0 | 8.
9. Customers' liability to this bank on acceptances outstanding ............................... | 2155 8,678 | 9.
10. Intangible assets (from Schedule RC-M) ..................................................... | 2143 589,826 | 10.
11. Other assets (from Schedule RC-F) .......................................................... | 2160 459,182 | 11.
12. Total assets (sum of items 1 through 11) ................................................... | 2170 20,728,101 | 12.
______________________
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
11
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-2
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
0 3 2 6 3
Schedule RC--Continued
___________________________
Dollar Amounts in Thousands | ///////// Bil Mil Thou |
_______________________________________________________________________________________________ _________________________
LIABILITIES | /////////////////////// |
13. Deposits: | /////////////////////// |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) ..... | RCON 2200 15,468,673 | 13.a.
____________________________
(1) Noninterest-bearing(1) ................................ | RCON 6631 5,776,281 | /////////////////////// | 13.a.(1)
(2) Interest-bearing ...................................... | RCON 6636 9,692,392 | /////////////////////// | 13.a.(2)
____________________________
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, | /////////////////////// |
part II) .............................................................................. | RCFN 2200 515,926 | 13.b.
____________________________
(1) Noninterest-bearing ................................... | RCFN 6631 0 | /////////////////////// | 13.b.(1)
(2) Interest-bearing ...................................... | RCFN 6636 515,926 | /////////////////////// | 13.b.(2)
____________________________
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 ............................................................... | RCFD 0278 436,360 | 14.a.
b. Securities sold under agreements to repurchase ........................................ | RCFD 0279 245,637 | 14.b.
15. a. Demand notes issued to the U.S. Treasury .............................................. | RCON 2840 1,504,602 | 15.a.
b. Trading liabilities ................................................................... | RCFD 3548 18,589 | 15.b.
16. Other borrowed money: | /////////////////////// |
a. With original maturity of one year or less ............................................ | RCFD 2332 85,293 | 16.a.
b. With original maturity of more than one year .......................................... | RCFD 2333 20,349 | 16.b.
17. Mortgage indebtedness and obligations under capitalized leases ........................... | RCFD 2910 30,128 | 17.
18. Bank's liability on acceptances executed and outstanding ................................. | RCFD 2920 8,678 | 18.
19. Subordinated notes and debentures ........................................................ | RCFD 3200 345,000 | 19.
20. Other liabilities (from Schedule RC-G) ................................................... | RCFD 2930 211,603 | 20.
21. Total liabilities (sum of items 13 through 20) ........................................... | RCFD 2948 18,890,838 | 21.
| /////////////////////// |
22. Limited-life preferred stock and related surplus ......................................... | RCFD 3282 0 | 22.
EQUITY CAPITAL | /////////////////////// |
23. Perpetual preferred stock and related surplus ............................................ | RCFD 3838 0 | 23.
24. Common stock ............................................................................. | RCFD 3230 612,893 | 24.
25. Surplus (exclude all surplus related to preferred stock).................................. | RCFD 3839 1,014,464 | 25.
26. a. Undivided profits and capital reserves ................................................ | RCFD 3632 197,320 | 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ................ | RCFD 8434 12,586 | 26.b.
27. Cumulative foreign currency translation adjustments ...................................... | RCFD 3284 0 | 27.
28. Total equity capital (sum of items 23 through 27) ........................................ | RCFD 3210 1,837,263 | 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, | /////////////////////// |
and 28) .................................................................................. | RCFD 3300 20,728,101 | 29.
___________________________
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external __________________
auditors as of any date during 1993 .............................................................. | RCFD 6724 N/A | M.1.
__________________
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
____________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
12
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-3
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
0 3 2 6 3
Schedule RC-A--Cash and Balances Due From Depository Institutions
Exclude assets held in trading accounts.
-----------
| C405 | (-
_________________________________ ________
| (Column A) | (Column B) |
| Consolidated | Domestic |
| Bank | Offices |
-------------------------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou |
_____________________________________________________________________________ ____________________ ____________________
1. Cash items in process of collection, unposted debits, and currency and | ////////////////// | ////////////////// |
coin .................................................................... | 0022 1,509,753 | ////////////////// | 1.
a. Cash items in process of collection and unposted debits .............. | ////////////////// | 0020 1,204,067 | 1.a.
b. Currency and coin .................................................... | ////////////////// | 0080 305,686 | 1.b.
2. Balances due from depository institutions in the U.S. ................... | ////////////////// | 0082 83,133 | 2.
a. U.S. branches and agencies of foreign banks (including their IBFs) ... | 0083 5,060 | ////////////////// | 2.a.
b. Other commercial banks in the U.S. and other depository institutions | ////////////////// | ////////////////// |
in the U.S. (including their IBFs) ................................... | 0085 78,073 | ////////////////// | 2.b.
3. Balances due from banks in foreign countries and foreign central banks .. | ////////////////// | 0070 5,866 | 3.
a. Foreign branches of other U.S. banks ................................. | 0073 565 | ////////////////// | 3.a.
b. Other banks in foreign countries and foreign central banks ........... | 0074 5,330 | ////////////////// | 3.b.
4. Balances due from Federal Reserve Banks ................................. | 0090 358,951 | 0090 358,951 | 4.
5. Total (sum of items 1 through 4) (total of column A must equal | ////////////////// | ////////////////// |
Schedule RC, sum of items 1.a and 1.b) .................................. | 0010 1,957,732 | 0010 1,957,703 | 5.
___________________________________________
______________________
Memorandum Dollar Amounts in Thousands RCOW Bil Mil Thou
__________________________________________________________________________________________________ ____________________
1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item 2, | ////////////////// |
column B above) .............................................................................. | 0050 78,122 | M.1.
______________________
13
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-4
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-B--Securities
Exclude assets held in trading accounts.
__________
| C410 | (-
___________________________________________________________________________ ________
| Held-to-maturity | Available-for-sale |
_________________________________________ _________________________________________
| (Column A) | (Column B) | (Column C) | (Column D) |
| Amortized Cost | Fair Value | Amortized Cost | Fair Value(1) |
____________________ ____________________ ____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________ ____________________ ____________________ ____________________ ____________________
1. U.S. Treasury securities ......... | 0211 0 | 0213 0 | 1286 651,724 | 1287 643,271 | 1.
2. U.S. Government agency | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and corporation obligations | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(exclude mortgage-backed | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities): | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Issued by U.S. Govern- | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
ment agencies(2) .............. | 1289 0 | 1290 0 | 1291 0 | 1293 0 | 2.a.
b. Issued by U.S. | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
Government-sponsored | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
agencies(3) ................... | 1294 0 | 1295 0 | 1297 0 | 1298 0 | 2.b.
3. Securities issued by states | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and political subdivisions | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
in the U.S.: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. General obligations ........... | 1676 440 | 1677 437 | 1678 0 | 1679 0 | 3.a.
b. Revenue obligations ........... | 1681 150 | 1686 236 | 1690 0 | 1691 0 | 3.b.
c. Industrial development | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and similar obligations ....... | 1694 0 | 1695 0 | 1696 0 | 1697 0 | 3.c.
4. Mortgage-backed | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities (MBS): | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Pass-through securities: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Guaranteed by | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
GNMA ...................... | 1698 0 | 1699 0 | 1701 632,586 | 1702 666,581 | 4.a.(1)
(2) Issued by FNMA | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and FHLMC ................. | 1703 593,847 | 1705 579,295 | 1706 255,804 | 1707 248,531 | 4.a.(2)
(3) Privately-issued .......... | 1709 0 | 1710 0 | 1711 0 | 1713 0 | 4.a.(3)
b. CMOs and REMICs: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Issued by FNMA | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and FHLMC ................. | 1714 474,517 | 1715 443,500 | 1716 0 | 1717 0 | 4.b.(1)
(2) Privately-issued | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and collateralized | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
by MBS issued or | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
guaranteed by | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
FNMA, FHLMC, or | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
GNMA ...................... | 1718 4,980 | 1719 4,995 | 1731 10,295 | 1732 10,132 | 4.b.(2)
(3) All other privately- | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
issued .................... | 1733 0 | 1734 0 | 1735 0 | 1736 0 | 4.b.(3)
5. Other debt securities: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Other domestic debt | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities .................... | 1737 288,779 | 1738 286,358 | 1739 0 | 1741 0 | 5.a.
b. Foreign debt | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities .................... | 1742 1,235 | 1743 1,086 | 1744 0 | 1746 0 | 5.b.
_____________________________________________________________________________________
_____________
(1) Includes equity securities without readily determinable fair values at historical cost in item 6.c, column D.
(2) Includes Small Business Administration "Guaranteed Loan Pool Certificates," U.S. Maritime Administration obligations, and
Export-Import Bank participation certificates.
(3) Includes obligations (other than pass-through securities, CMOs, and REMICs) issued by the Farm Credit System, the Federal Home
Loan Bank System, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Financing
Corporation, Resolution Funding Corporation, the Student Loan Marketing Association, and the Tennessee Valley Authority.
14
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-5
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-B--Continued
_____________________________________________________________________________________
| Held-to-maturity | Available-for-sale |
_________________________________________ _________________________________________
| (Column A) | (Column B) | (Column C) | (Column D) |
| Amortized Cost | Fair Value | Amortized Cost | Fair Value(1) |
____________________ ____________________ ____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
____________________________________ ____________________ ____________________ ____________________ ____________________
6. Equity securities: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Investments in mutual | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
funds ....................... | ////////////////// | ////////////////// | 1747 0 | 1748 0 | 6.a.
b. Other equity securities | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
with readily determin- | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
able fair values ............ | ////////////////// | ////////////////// | 1749 0 | 1751 0 | 6.b.
c. All other equity | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities(1) ............... | ////////////////// | ////////////////// | 1752 43,387 | 1753 43,387 | 6.c.
7. Total (sum of items 1 | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
through 6) (total of | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
column A must equal | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
Schedule RC, item 2.a) | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(total of column D must | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
equal Schedule RC, | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
item 2.b) ...................... | 1754 1,363,948 | 1771 1,315,907 | 1772 1,593,796 | 1773 1,611,902 | 7.
_____________________________________________________________________________________
___________
Memoranda | C412 | (-
___________ _________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
1. Pledged securities(2) ......................................................................... | 0416 2,520,189 | M.1.
2. Maturity and repricing data for debt securities(2)(3)(4) (excluding those in nonaccrual status):| ////////////////// |
a. Fixed rate debt securities with a remaining maturity of: | ////////////////// |
(1) Three months or less ................................................................... | 0343 429 | M.2.a.(1)
(2) Over three months through 12 months .................................................... | 0344 129,783 | M.2.a.(2)
(3) Over one year through five years ....................................................... | 0345 1,165,573 | M.2.a.(3)
(4) Over five years ........................................................................ | 0346 1,621,403 | M.2.a.(4)
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1) through 2.a.(4)) ..... | 0347 2,917,188 | M.2.a.(5)
b. Floating rate debt securities with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently ........................................................... | 4544 14,040 | M.2.b.(1)
(2) Annually or more frequently, but less frequently than quarterly ........................ | 4545 1,235 | M.2.b.(2)
(3) Every five years or more frequently, but less frequently than annually ................. | 4551 0 | M.2.b.(3)
(4) Less frequently than every five years .................................................. | 4552 0 | M.2.b.(4)
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1) through 2.b.(4)) .. | 4553 15,275 | M.2.b.(5)
c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal total debt | ////////////////// |
securities from Schedule RC-B, sum of items 1 through 5, columns A and D, minus nonaccrual | ////////////////// |
debt securities included in Schedule RC-N, item 9, column C) ............................... | 0393 2,932,463 | M.2.c.
3. Not applicable | ////////////////// |
4. Held-to-maturity debt securities restructured and in compliance with modified terms (included | ////////////////// |
in Schedule RC-B, items 3 through 5, column A, above) ......................................... | 5365 0 | M.4.
5. Not applicable | ////////////////// |
6. Floating rate debt securities with a remaining maturity of one year or less(2) (included in | ////////////////// |
Memorandum item 2.b.(5) above) ................................................................ | 5519 0 | M.6.
7. Amortized cost of held-to-maturity securities sold or transferred to available-for-sale or | ////////////////// |
trading securities during the calendar year-to-date ........................................... | 1778 0 | M.7.
______________________
_____________
(1) Includes equity securities without readily determinable fair values at historical cost in item 6.c, column D.
(2) Includes held-to-maturity securities at amortized cost and available-for-sale securities at fair value.
(3) Exclude equity securities, e.g., investments in mutual funds, Federal Reserve stock, common stock, and preferred stock.
(4) Memorandum item 2 is not applicable to savings banks that must complete supplemental Schedule RC-J.
15
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-6
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-C--Loans and Lease Financing Receivables
Part I. Loans and Leases
Do not deduct the allowance for loan and lease losses from amounts __________
reported in this schedule. Report total loans and leases, net of unearned | C415 | (-
_________________________________ ________
income. Exclude assets held in trading accounts. | (Column A) | (Column B) |
| Consolidated | Domestic |
| Bank | Offices |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou |
_____________________________________________________________________________ ____________________ ____________________
1. Loans secured by real estate ........................................... | 1410 2,109,126 | ////////////////// | 1.
a. Construction and land development ................................... | ////////////////// | 1415 323,162 | 1.a.
b. Secured by farmland (including farm residential and other | ////////////////// | ////////////////// |
improvements) ....................................................... | ////////////////// | 1420 18,761 | 1.b.
c. Secured by 1-4 family residential properties: | ////////////////// | ////////////////// |
(1) Revolving, open-end loans secured by 1-4 family residential | ////////////////// | ////////////////// |
properties and extended under lines of credit ................... | ////////////////// | 1797 0 | 1.c.(1)
(2) All other loans secured by 1-4 family residential properties: | ////////////////// | ////////////////// |
(a) Secured by first liens ...................................... | ////////////////// | 5367 511,475 | 1.c.(2)(a)
(b) Secured by junior liens ..................................... | ////////////////// | 5368 180,688 | 1.c.(2)(b)
d. Secured by multifamily (5 or more) residential properties ........... | ////////////////// | 1460 124,510 | 1.d.
e. Secured by nonfarm nonresidential properties ........................ | ////////////////// | 1480 950,530 | 1.e.
2. Loans to depository institutions: | ////////////////// | ////////////////// |
a. To commercial banks in the U.S. ..................................... | ////////////////// | 1505 10,899 | 2.a.
(1) To U.S. branches and agencies of foreign banks .................. | 1506 7,152 | ////////////////// | 2.a.(1)
(2) To other commercial banks in the U.S. ........................... | 1507 8,747 | ////////////////// | 2.a.(2)
b. To other depository institutions in the U.S. ........................ | 1517 727 | 1517 727 | 2.b.
c. To banks in foreign countries ....................................... | ////////////////// | 1510 62,648 | 2.c.
(1) To foreign branches of other U.S. banks ......................... | 1513 0 | ////////////////// | 2.c.(1)
(2) To other banks in foreign countries ............................. | 1516 68,896 | ////////////////// | 2.c.(2)
3. Loans to finance agricultural production and other loans to farmers .... | 1590 91,793 | 1590 91,793 | 3.
4. Commercial and industrial loans: | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ....................................... | 1763 4,163,635 | 1763 4,116,601 | 4.a.
b. To non-U.S. addressees (domicile) ................................... | 1764 134,573 | 1764 33,085 | 4.b.
5. Acceptances of other banks: | ////////////////// | ////////////////// |
a. Of U.S. banks ....................................................... | 1756 0 | 1756 0 | 5.a.
b. Of foreign banks .................................................... | 1757 0 | 1757 0 | 5.b.
6. Loans to individuals for household, family, and other personal | ////////////////// | ////////////////// |
expenditures (i.e., consumer loans) (includes purchased paper) ......... | ////////////////// | 1975 1,394,929 | 6.
a. Credit cards and related plans (includes check credit and other | ////////////////// | ////////////////// |
revolving credit plans) ............................................. | 2008 108,360 | ////////////////// | 6.a.
b. Other (includes single payment, installment, and all student loans) . | 2011 1,286,569 | ////////////////// | 6.b.
7. Loans to foreign governments and official institutions (including | ////////////////// | ////////////////// |
foreign central banks) ................................................. | 2081 228,729 | 2081 222,342 | 7.
8. Obligations (other than securities and leases) of states and political | ////////////////// | ////////////////// |
subdivisions in the U.S. (includes nonrated industrial development | ////////////////// | ////////////////// |
obligations) ........................................................... | 2107 55,025 | 2107 55,025 | 8.
9. Other loans ............................................................ | 1563 1,233,907 | ////////////////// | 9.
a. Loans for purchasing or carrying securities (secured and unsecured) . | ////////////////// | 1545 151,026 | 9.a.
b. All other loans (exclude consumer loans) ............................ | ////////////////// | 1564 1,082,881 | 9.b.
10. Lease financing receivables (net of unearned income) ................... | ////////////////// | 2165 209,022 | 10.
a. Of U.S. addressees (domicile) ....................................... | 2182 164,729 | ////////////////// | 10.a.
b. Of non-U.S. addressees (domicile) ................................... | 2183 44,293 | ////////////////// | 10.b.
11. LESS: Any unearned income on loans reflected in items 1-9 above ........ | 2123 0 | 2123 0 | 11.
12. Total loans and leases, net of unearned income (sum of items 1 through | ////////////////// | ////////////////// |
10 minus item 11) (total of column A must equal Schedule RC, item 4.a) . | 2122 9,706,261 | 2122 9,540,104 | 12.
___________________________________________
16
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-7
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-C--Continued
Part I. Continued
___________________________________________
| (Column A) | (Column B) |
| Consolidated | Domestic |
Memoranda | Bank | Offices |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou |
_____________________________________________________________________________ ____________________ ____________________
1. Commercial paper included in Schedule RC-C, part I, above .............. | 1496 0 | 1496 0 | M.1.
2. Loans and leases restructured and in compliance with modified terms | ////////////////// | ////////////////// |
(included in Schedule RC-C, part I, above): | ////////////////// | ////////////////// |
a. Loans secured by real estate: | ////////////////// | ////////////////// |
_____________________
(1) To U.S. addressees (domicile) ................................... | 1687 0 | M.2.a.(1)
(2) To non-U.S. addressees (domicile) ............................... | 1689 0 | M.2.a.(2)
b. Loans to finance agricultural production and other loans to farmers . | 1613 0 | M.2.b.
c. Commercial and industrial loans: | ////////////////// |
(1) To U.S. addressees (domicile) ................................... | 1758 0 | M.2.c.(1)
(2) To non-U.S. addressees (domicile)................................ | 1759 0 | M.2.c.(2)
d. All other loans (exclude loans to individuals for household, | ////////////////// |
family, and other personal expenditures) ............................ | 1615 219,755 | M.2.d.
e. Lease financing receivables: | ////////////////// |
(1) Of U.S. addressees (domicile) ................................... | 1789 0 | M.2.e.(1)
(2) Of non-U.S. addressees (domicile) ............................... | 1790 0 | M.2.e.(2)
f. Total (sum of Memorandum items 2.a through 2.e) ..................... | 1616 219,755 | M.2.f.
3. Maturity and repricing data for loans and leases(1) (excluding those | ////////////////// |
in nonaccrual status): | ////////////////// |
a. Fixed rate loans and leases with a remaining maturity of: | ////////////////// |
(1) Three months or less ............................................ | 0348 301,672 | M.3.a.(1)
(2) Over three months through 12 months ............................. | 0349 298,972 | M.3.a.(2)
(3) Over one year through five years ................................ | 0356 1,464,897 | M.3.a.(3)
(4) Over five years ................................................. | 0357 1,026,545 | M.3.a.(4)
(5) Total fixed rate loans and leases (sum of | ////////////////// |
Memorandum items 3.a.(1) through 3.a.(4)) ....................... | 0358 3,092,086 | M.3.a.(5)
b. Floating rate loans with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently .................................... | 4554 4,317,823 | M.3.b.(1)
(2) Annually or more frequently, but less frequently than quarterly . | 4555 1,704,771 | M.3.b.(2)
(3) Every five years or more frequently, but less frequently than | ////////////////// |
annually ........................................................ | 4561 370,925 | M.3.b.(3)
(4) Less frequently than every five years ........................... | 4564 71,508 | M.3.b.(4)
(5) Total floating rate loans (sum of Memorandum items 3.b.(1) | ////////////////// |
through 3.b.(4)) ................................................ | 4567 6,465,027 | M.3.b.(5)
c. Total loans and leases (sum of Memorandum items 3.a.(5) and 3.b.(5)) | ////////////////// |
(must equal the sum of total loans and leases, net, from | ////////////////// |
Schedule RC-C, part I, item 12, plus unearned income from | ////////////////// |
Schedule RC-C, part I, item 11, minus total nonaccrual loans and | ////////////////// |
leases from Schedule RC-N, sum of items 1 through 8, column C) ...... | 1479 9,557,113 | M.3.c.
4. Loans to finance commercial real estate, construction, and land | ////////////////// |
development activities (not secured by real estate) included in | ////////////////// |
Schedule RC-C, part I, items 4 and 9, column A, page RC-6(2) ........... | 2746 277,878 | M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, above)| 5369 198,043 | M.5.
6. Adjustable rate closed-end loans secured by first liens on 1-4 family | ////////////////// |_____________________
residential properties (included in Schedule RC-C, part I, item | ////////////////// | RCON Bil Mil Thou |
____________________
1.c.(2)(a), column B, page RC-6) ....................................... | ////////////////// | 5370 51,087 | M.6.
___________________________________________
_____________
(1) Memorandum item 3 is not applicable to savings banks that must complete supplemental Schedule RC-J.
(2) Exclude loans secured by real estate that are included in Schedule RC-C, part I, item 1, column A.
17
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-7a
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-C--Continued
Part II. Loans to Small Businesses and Small Farms
Schedule RC-C, Part II is to be reported only with the June Report of Condition.
Report the number and amount currently outstanding as of June 30 of business loans with "original amounts" of $1,000,000 or less and
farm loans with "original amounts" of $500,000 or less. The following guidelines should be used to determine the "original amount"
of a loan: (1) for loans drawn down under lines of credit or loan commitments, the "original amount" of the loan is the size of the
line of credit or loan commitment when the line of credit or loan commitment was most recently approved, extended, or renewed prior
to the report date. However, if the amount currently outstanding as of the report date exceeds this size, the "original amount" is
the amount currently outstanding on the report date. (2) For loan participations and syndications, the "original amount" of the loan
participation or syndication is the entire amount of the credit originated by the lead lender. (3) For all other loans, the
"original amount" is the total amount of the loan at origination or the amount currently outstanding as of the report date,
whichever is larger.
Loans to Small Businesses ____________
1. Indicate in the appropriate box at the right whether all or substantially all of the bank's | C418 | (-
"Loans secured by nonfarm nonresidential properties" in domestic offices reported in Schedule _____ __________
RC-C, part I, item 1.e, column B, and all or substantially all of the bank's "Commercial | YES NO |
and industrial loans to U.S. addressees" in domestic offices reported in Schedule RC-C, _______ _______________
part I, item 4.a, column B, have original amounts of $100,000 or less (see instructions)..... | 6999 | |////| X | 1.
________________________
If YES, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5.
If NO, skip items 2.a and 2.b, complete items 3 and 4 below, and go to item 5.
_____________________
2. Report the total number of loans currently outstanding for each of the | Number of Loans |
following Schedule RC-C, part I, loan categories: |__________________ |
a. "Loans secured by nonfarm nonresidential properties" in domestic |RCON |//////////// |
offices reported in Schedule RC-C, part I, item 1.e, ______ |
column B............................................................ |5562 N/A | 2.a.
b. "Commercial and industrial loans to U.S. addressees" in domestic |////////////////// |
offices reported in Schedule RC-C, part I, item 4.a, column b....... |5563 N/A | 2.b.
____________________
___________________________________________
| (Column A) | (Column B) |
| | Amount |
| | Currently |
| Number of Loans | Instruments |
____________________ ____________________
Dollar Amounts in Thousands | RCON | /////////// | RCON Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
3. Number and amount currently outstanding of "Loans secured by nonfarm | ////////////////// | ////////////////// |
nonresidential properties" in domestic offices reported in Schedule RC-C, | ////////////////// | ////////////////// |
part I, item 1.e, column B (sum of items 3.a through 3.c must be less | ////////////////// | ////////////////// |
than or equal to Schedule RC-C, part I, item 1.e, column B): | ////////////////// | ////////////////// |
a. With original amounts of $100,000 or less ............................. | 5564 968 | 5565 37,560 | 3.a.
b. With original amounts of more than $100,000 through $250,000 .......... | 5566 803 | 5567 87,396 | 3.b.
c. With original amounts of more than $250,000 through $1,000,000 ........ | 5568 849 | 5569 281,525 | 3.c.
4. Number and amount currently outstanding of "Commercial and industrial | ////////////////// | ////////////////// |
loans to U.S. addressees" in domestic offices reported in Schedule RC-C, | ////////////////// | ////////////////// |
part I, item 4.a, column B (sum of items 4.a through 4.c must be less than | ////////////////// | ////////////////// |
or equal to Schedule RC-C, part I, item 4.a, column B): | ////////////////// | ////////////////// |
a. With original amounts of $100,000 or less ............................. | 5570 10,516 | 5571 191,365 | 4.a.
b. With original amounts of more than $100,000 through $250,000 .......... | 5572 1,422 | 5573 133,351 | 4.b.
c. With original amounts of more than $250,000 through $1,000,000 ........ | 5574 1,409 | 5575 400,042 | 4.c.
___________________________________________
17a
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-7b
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-C--Continued
Part II. Continued
Agricultural Loans to Small Farms
5. Indicate in the appropriate box at the right whether all or substantially all of the bank's
"Loans secured by farmland (including farm residential and other improvements)" in domestic
offices reported in Schedule RC-C, part I, item 1.b, column B, and all or substantially
all of the bank's "Loans to finance agricultural production and other loans to farmers" YES NO
in domestic offices reported in Schedule RC-C, part I, item 3, column B, have original _______ _______________
amounts of $100,000 or less (see instructions)............................................... | 6860 | |////| X | 5.
_______ _______________
If YES, complete items 6.a and 6.b below and do not complete items 7 and 8.
If NO, skip items 6.a and 6.b and complete items 7 and 8 below.
_____________________
6. Report the total number of loans currently outstanding for each of the | Number of Loans |
following Schedule RC-C, part I, loan categories: |__________________ |
a. "Loans secured by farmland (including farm residential and other |RCON |//////////// |
improvements)" in domestic offices reported in Schedule RC-C, part ______ |
I, item 1.b, column B .............................................. |5576 N/A | 6.a.
b. "Loans to finance agricultural production and other loans to farmers" | ///////////////// |
in domestic offices reported in Schedule RC-C, part I, item 3, | ///////////////// |
column 8 ........................................................... |5577 N/A | 6.b.
____________________
___________________________________________
| (Column A) | (Column B) |
| | Amount |
| | Currently |
| Number of Loans | Outstanding |
____________________ ____________________
Dollar Amounts in Thousands | RCON | /////////// | RCON Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
7. Number and amount currently outstanding of "Loans secured by farmland | ////////////////// | ////////////////// |
(including farm residential and other improvements)" in domestic offices | ////////////////// | ////////////////// |
reported in Schedule RC-C, part I, item 1.b, column B (sum of items 7.a | ////////////////// | ////////////////// |
through 7.c must be less than or equal to Schedule RC-C, part I, item 1.b, | ////////////////// | ////////////////// |
column B) | ////////////////// | ////////////////// |
a. With original amounts of $100,000 or less ............................. | 5578 35 | 5579 1,081 | 7.a.
b. With original amounts of more than $100,000 through $250,000 .......... | 5580 14 | 5581 1,459 | 7.b.
c. With original amounts of more than $250,000 through $500,000 .......... | 5582 10 | 5583 1,926 | 7.c.
8. Number and amount currently outstanding of "Loans to finance agricultural | ////////////////// | ////////////////// |
production and other loans to farmers" in domestic offices reported in | ////////////////// | ////////////////// |
Schedule RC-C, part I, item 3, column B (sum of items 8.a through 8.c | ////////////////// | ////////////////// |
must be less than or equal to Schedule RC-C, part I, item 3, column B): | ////////////////// | ////////////////// |
a. With original amounts of $100,000 or less ............................. | 5584 209 | 5585 4,463 | 8.a.
b. With original amounts of more than $100,000 through $250,000 .......... | 5586 45 | 5587 4,368 | 8.b.
c. With original amounts of more than $250,000 through $500,000 .......... | 5588 25 | 5589 5,085 | 8.c.
___________________________________________
17b
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-8
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-D--Trading Assets and Liabilities
Schedule RC-D is to be completed only by banks with $1 billion or more in total assets or with $2 billion or more in par/notional
amount of interest rate, foreign exchange rate, and other commodity and equity contracts (as reported in Schedule RC-L, items 11,
12, and 13).
------------------------------------------------
| C420 | (-
_________________ ________
Dollar Amounts in Thousands | ///////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
ASSETS | /////////////////////// |
1. U.S. Treasury securities in domestic offices ................................................ | RCON 3531 1,366 | 1.
2. U.S. Government agency and corporation obligations in domestic offices (exclude mortgage- | /////////////////////// |
backed securities) .......................................................................... | RCON 3532 973 | 2.
3. Securities issued by states and political subdivisions in the U.S. in domestic offices ...... | RCON 3533 9,047 | 3.
4. Mortgage-backed securities in domestic offices: | /////////////////////// |
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA ..................... | RCON 3534 0 | 4.a.
b. CMOs and REMICs issued by FNMA or FHLMC .................................................. | RCON 3535 0 | 4.b.
c. All other ................................................................................ | RCON 3536 0 | 4.c.
5. Other debt securities in domestic offices ................................................... | RCON 3537 0 | 5.
6. Certificates of deposit in domestic offices ................................................. | RCON 3538 107 | 6.
7. Commercial paper in domestic offices ........................................................ | RCON 3539 0 | 7.
8. Bankers acceptances in domestic offices ..................................................... | RCON 3540 0 | 8.
9. Other trading assets in domestic offices .................................................... | RCON 3541 0 | 9.
10. Trading assets in foreign offices ........................................................... | RCFN 3542 0 | 10.
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and equity | /////////////////////// |
contracts: | /////////////////////// |
a. In domestic offices ...................................................................... | RCON 3543 22,459 | 11.a.
b. In foreign offices ....................................................................... | RCFN 3544 236 | 11.b.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5) ........... | RCFD 3545 34,188 | 12.
___________________________
___________________________
| ///////// Bil Mil Thou |
LIABILITIES _________________________
13. Liability for short positions ............................................................... | RCFD 3546 0 | 13.
14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and equity | /////////////////////// |
contracts ................................................................................... | RCFD 3547 18,589 | 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item 15.b) ...... | RCFD 3548 18,589 | 15.
___________________________
18
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-9
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-E--Deposit Liabilities
Part I. Deposits in Domestic Offices
__________
| C425 | (-
______________________________________________________ ________
| | Nontransaction |
| Transaction Accounts | Accounts |
_________________________________________ ____________________
| (Column A) | (Column B) | (Column C) |
| Total transaction | Memo: Total | Total |
| accounts (including| demand deposits | nontransaction |
| total demand | (included in | accounts |
| deposits) | column A) | (including MMDAs) |
____________________ ____________________ ____________________
Dollar Amounts in Thousands | RCON Bil Mil Thou | RCON Bil Mil Thou | RCON Bil Mil Thou |
__________________________________________________________ ____________________ ____________________ ____________________
Deposits of: | ////////////////// | ////////////////// | ////////////////// |
1. Individuals, partnerships, and corporations .......... | 2201 6,935,403 | 2240 5,088,642 | 2346 7,814,725 | 1.
2. U.S. Government ...................................... | 2202 36,983 | 2280 36,876 | 2520 306 | 2.
3. States and political subdivisions in the U.S. ........ | 2203 170,925 | 2290 41,851 | 2530 66,482 | 3.
4. Commercial banks in the U.S. ......................... | 2206 260,794 | 2310 260,794 | ////////////////// | 4.
a. U.S. branches and agencies of foreign banks ....... | ////////////////// | ////////////////// | 2347 0 | 4.a.
b. Other commercial banks in the U.S. ................ | ////////////////// | ////////////////// | 2348 239 | 4.b.
5. Other depository institutions in the U.S. ............ | 2207 17,649 | 2312 17,649 | 2349 0 | 5.
6. Banks in foreign countries ........................... | 2213 31,336 | 2320 31,336 | ////////////////// | 6.
a. Foreign branches of other U.S. banks .............. | ////////////////// | ////////////////// | 2367 0 | 6.a.
b. Other banks in foreign countries .................. | ////////////////// | ////////////////// | 2373 0 | 6.b.
7. Foreign governments and official institutions | ////////////////// | ////////////////// | ////////////////// |
(including foreign central banks) .................... | 2216 2,491 | 2300 2,491 | 2377 0 | 7.
8. Certified and official checks ........................ | 2330 131,340 | 2330 131,340 | ////////////////// | 8.
9. Total (sum of items 1 through 8) (sum of | ////////////////// | ////////////////// | ////////////////// |
columns A and C must equal Schedule RC, | ////////////////// | ////////////////// | ////////////////// |
item 13.a) ........................................... | 2215 7,586,921 | 2210 5,610,979 | 2385 7,881,752 | 9.
________________________________________________________________
______________________
Memoranda Dollar Amounts in Thousands | RCON Bil Mil Thou |
____________________________________________________________________________________________________ ____________________
1. Selected components of total deposits (i.e., sum of item 9, columns A and C): | ////////////////// |
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts ......................... | 6835 869,189 | M.1.a.
b. Total brokered deposits ..................................................................... | 2365 0 | M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above): | ////////////////// |
(1) Issued in denominations of less than $100,000 ........................................... | 2343 0 | M.1.c.(1)
(2) Issued either in denominations of $100,000 or in denominations greater than $100,000 | ////////////////// |
and participated out by the broker in shares of $100,000 or less ........................ | 2344 0 | M.1.c.(2)
d. Total deposits denominated in foreign currencies ............................................ | 3776 3,148 | M.1.d.
e. Preferred deposits (uninsured deposits of states and political subdivisions in the U.S. | ////////////////// |
reported in item 3 above which are secured or collateralized as required under state law) ... | 5590 210,049 | M.1.e.
2. Components of total nontransaction accounts (sum of Memoranda items 2.a through 2.d must | ////////////////// |
equal item 9, column C above): | ////////////////// |
a. Savings deposits: | ////////////////// |
(1) Money market deposit accounts (MMDAs) ................................................... | 6810 1,321,748 | M.2.a.(1)
(2) Other savings deposits (excludes MMDAs) ................................................. | 0352 3,015,257 | M.2.a.(2)
b. Total time deposits of less than $100,000 ................................................... | 6648 2,635,577 | M.2.b.
c. Time certificates of deposit of $100,000 or more ............................................ | 6645 876,781 | M.2.c.
d. Open-account time deposits of $100,000 or more .............................................. | 6646 32,389 | M.2.d.
3. All NOW accounts (included in column A above) .................................................. | 2398 1,975,942 | M.3.
______________________
19
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-10
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-E--Continued
Part I. Continued
Memoranda (continued)
_________________________________________________________________________________________________________________________________
| Deposit Totals for FDIC Insurance Assessments(1) ______________________ |
| Dollar Amounts in Thousands | RCON Bil Mil Thou | |
__________________________________________________________________________________________________ ____________________
| 4. Total deposits in domestic offices (sum of item 9, column A and item 9, column C) |/////////////////// | |
| (must equal Schedule RC, item 13.a) ......................................................... | 2200 15,468,673 | M.4. |
| | ////////////////// | |
| a. Total demand deposits (must equal item 9, column B) ...................................... | 2210 5,610,979 | M.4.a.|
| b. Total time and savings deposits(2) (must equal item 9, column A plus item 9, column C | ////////////////// | |
| minus item 9, column B) .................................................................. | 2350 9,857,694 | M.4.b.|
______________________
| ____________ |
| (1) An amended Certified Statement should be submitted to the FDIC if the deposit totals reported in this item are amended |
| after the semiannual Certified Statement originally covering this report date has been filed with the FDIC. |
| (2) For FDIC insurance assessment purposes, "total time and savings deposits" consists of nontransaction accounts and all |
| transaction accounts other than demand deposits. |
| |
_________________________________________________________________________________________________________________________________
______________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
5. Time deposits of less than $100,000 and open-account time deposits of $100,000 or more | ////////////////// |
(included in Memorandum items 2.b and 2.d above) with a remaining maturity or repricing | ////////////////// |
frequency of:(1) | ////////////////// |
a. Three months or less ....................................................................... | 0359 201,040 | M.5.a.
b. Over three months through 12 months (but not over 12 months) ............................... | 3644 1,436,073 | M.5.b.
6. Maturity and repricing data for time certificates of deposit of $100,000 or more:(1) | ////////////////// |
a. Fixed rate time certificates of deposit of $100,000 or more with a remaining maturity of: | ////////////////// |
(1) Three months or less ................................................................... | 2761 544,364 | M.6.a.(1)
(2) Over three months through 12 months .................................................... | 2762 245,662 | M.6.a.(2)
(3) Over one year through five years ....................................................... | 2763 73,549 | M.6.a.(3)
(4) Over five years ........................................................................ | 2765 0 | M.6.a.(4)
(5) Total fixed rate time certificates of deposit of $100,000 or more (sum of | ////////////////// |
Memorandum items 6.a.(1) through 6.a.(4)) .............................................. | 2767 863,575 | M.6.a.(5)
b. Floating rate time certificates of deposit of $100,000 or more with a repricing frequency of:| ////////////////// |
(1) Quarterly or more frequently ........................................................... | 4568 13,206 | M.6.b.(1)
(2) Annually or more frequently, but less frequently than quarterly ........................ | 4569 0 | M.6.b.(2)
(3) Every five years or more frequently, but less frequently than annually ................. | 4571 0 | M.6.b.(3)
(4) Less frequently than every five years .................................................. | 4572 0 | M.6.b.(4)
(5) Total floating rate time certificates of deposit of $100,000 or more (sum of | ////////////////// |
Memorandum items 6.b.(1) through 6.b.(4)) .............................................. | 4573 13,206 | M.6.b.(5)
c. Total time certificates of deposit of $100,000 or more (sum of Memorandum items 6.a.(5) | ////////////////// |
and 6.b.(5)) (must equal Memorandum item 2.c. above) ....................................... | 6645 876,781 | M.6.c.
______________________
_____________
(1) Memorandum items 5 and 6 are not applicable to savings banks that must complete supplemental Schedule RC-J.
20
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-11
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-E--Continued
Part II. Deposits in Foreign Offices (including Edge and
Agreement subsidiaries and IBFs)
____________________
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
Deposits of: | ////////////////// |
1. Individuals, partnerships, and corporations ................................................... | 2621 515,926 | 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks) ................................ | 2623 0 | 2.
3. Foreign banks (including U.S. branches and | ////////////////// |
agencies of foreign banks, including their IBFs) .............................................. | 2625 0 | 3.
4. Foreign governments and official institutions (including foreign central banks) ............... | 2650 0 | 4.
5. Certified and official checks ................................................................. | 2330 0 | 5.
6. All other deposits ............................................................................ | 2668 0 | 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b) .......................... | 2200 515,926 | 7.
______________________
Schedule RC-F--Other Assets
__________
| C430 | (-
_________________ ________
Dollar Amounts in Thousands | ////////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
1. Income earned, not collected on loans ........................................................ | RCFD 2164 60,113 | 1.
2. Net deferred tax assets(1) ................................................................... | RCFD 2148 32,700 | 2.
3. Excess residential mortgage servicing fees receivable ........................................ | RCFD 5371 0 | 3.
4. Other (itemize amounts that exceed 25% of this item) ......................................... | RCFD 2168 366,369 | 4.
_____________ ___________________________
a. | TEXT 3549 |____________________________________________________| RCFD 3549 | | /////////////////////// | 4.a.
___________ Swap Interest Receivable 109,027
b. | TEXT 3550 |____________________________________________________| RCFD 3550 | | /////////////////////// | 4.b.
___________
c. | TEXT 3551 |____________________________________________________| RCFD 3551 | | /////////////////////// | 4.c.
_____________
___________________________
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11) ........................... | RCFD 2160 459,182 | 5.
___________________________
Memorandum ___________________________
Dollar Amounts in Thousands | ////////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
1. Deferred tax assets disallowed for regulatory capital purposes ............................... | RCFD 5610 0 | M.1.
___________________________
Schedule RC-G--Other Liabilities
__________
| C435 | (-
_________________ ________
Dollar Amounts in Thousands | ////////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
1. a. Interest accrued and unpaid on deposits in domestic offices(2) ............................ | RCON 3645 22,071 | 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable) ................. | RCFD 3646 174,094 | 1.b.
2. Net deferred tax liabilities(1) .............................................................. | RCFD 3049 298 | 2.
3. Minority interest in consolidated subsidiaries ............................................... | RCFD 3000 0 | 3.
4. Other (itemize amounts that exceed 25% of this item) ......................................... | RCFD 2938 15,140 | 4.
_____________ ___________________________
a. | TEXT 3552 |____________________________________________________| RCFD 3552 | | /////////////////////// | 4.a.
___________ Trading Security Purchase Fails 4,578
b. | TEXT 3553 |____________________________________________________| RCFD 3553 | | /////////////////////// | 4.b.
___________
c. | TEXT 3554 |____________________________________________________| RCFD 3554 | | /////////////////////// | 4.c.
_____________
___________________________
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20) ........................... | RCFD 2930 211,603 | 5.
___________________________
____________
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) For savings banks, include "dividends" accrued and unpaid on deposits.
21
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-12
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-H--Selected Balance Sheet Items for Domestic Offices
________
| C440 | (-
____________ ________
| Domestic Offices |
____________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
_____________________________________________________________________________________________________ ____________________
1. Customers' liability to this bank on acceptances outstanding .................................... | 2155 8,678 | 1.
2. Bank's liability on acceptances executed and outstanding ........................................ | 2920 8,678 | 2.
3. Federal funds sold and securities purchased under agreements to resell .......................... | 1350 4,670,072 | 3.
4. Federal funds purchased and securities sold under agreements to repurchase ...................... | 2800 681,997 | 4.
5. Other borrowed money ............................................................................ | 2850 105,642 | 5.
EITHER | ////////////////// |
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs ..................... | 2163 N/A | 6.
OR | ////////////////// |
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs ....................... | 2941 350,155 | 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement subsidiaries, and IBFs) . | 2192 20,559,970 | 8.
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement subsidiaries, and IBFs)| 3129 18,372,552 | 9.
______________________
Items 10-17 include held-to-maturity and available-for-sale securities in domestic offices. ______________________
| RCON Bil Mil Thou |
____________________
10. U.S. Treasury securities ....................................................................... | 1779 643,271 | 10.
11. U.S. Government agency and corporation obligations (exclude mortgage-backed | ////////////////// |
securities) .................................................................................... | 1785 0 | 11.
12. Securities issued by states and political subdivisions in the U.S. ............................. | 1786 590 | 12.
13. Mortgage-backed securities: | ////////////////// |
a. Pass-through securities: | ////////////////// |
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA ............................................ | 1787 1,508,959 | 13.a.(1)
(2) Privately-issued ........................................................................ | 1869 0 | 13.a.(2)
b. CMOs and REMICs: | ////////////////// |
(1) Issued by FNMA and FHLMC ................................................................ | 1877 474,517 | 13.b.(1)
(2) Privately-issued ........................................................................ | 2253 15,112 | 13.b.(2)
14. Other domestic debt securities ................................................................. | 3159 288,779 | 14.
15. Foreign debt securities ........................................................................ | 3160 1,235 | 15.
16. Equity securities: | ////////////////// |
a. Investments in mutual funds ................................................................. | 3161 0 | 16.a.
b. Other equity securities with readily determinable fair values ............................... | 3162 0 | 16.b.
c. All other equity securities ................................................................. | 3169 43,387 | 16.c.
17. Total held-to-maturity and available-for-sale securities (sum of items 10 through 16) .......... | 3170 2,975,850 | 17.
______________________
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
______________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
_____________________________________________________________________________________________________ ____________________
EITHER | ////////////////// |
1. Net due from the IBF of the domestic offices of the reporting bank .............................. | 3051 N/A | M.1.
OR | ////////////////// |
2. Net due to the IBF of the domestic offices of the reporting bank ................................ | 3059 N/A | M.2.
______________________
22
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-13
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-I--Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices.
__________
| C445 | (-
____________ ________
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
_____________________________________________________________________________________________________ ____________________
1. Total IBF assets of the consolidated bank (component of Schedule RC, item 12) .................. | 2133 N/A | 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, part I, item 12, | ////////////////// |
column A) ...................................................................................... | 2076 N/A | 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, item 4, column A) ..... | 2077 N/A | 3.
4. Total IBF liabilities (component of Schedule RC, item 21) ...................................... | 2898 N/A | 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of Schedule RC-E, | ////////////////// |
part II, items 2 and 3) ........................................................................ | 2379 N/A | 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5, and 6) ...... | 2381 N/A | 6.
Schedule RC-K--Quarterly Averages (1)
__________
| C455 | (-
_________________ ________
Dollar Amounts in Thousands | ///////// Bil Mil Thou |
_______________________________________________________________________________________________ _________________________
ASSETS | /////////////////////// |
1. Interest-bearing balances due from depository institutions ............................... | RCFD 3381 5,011 | 1.
2. U.S. Treasury securities and U.S. Government agency and corporation obligations(2) ....... | RCFD 3382 2,547,917 | 2.
3. Securities issued by states and political subdivisions in the U.S.(2) .................... | RCFD 3383 618 | 3.
4. a. Other debt securities(2) .............................................................. | RCFD 3647 291,657 | 4.a.
b. Equity securities(3) (includes investments in mutual funds and Federal Reserve stock) . | RCFD 3648 43,187 | 4.b.
5. 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 ...................... | RCFD 3365 4,112,124 | 5.
6. Loans: | /////////////////////// |
a. Loans in domestic offices: | /////////////////////// |
(1) Total loans ....................................................................... | RCON 3360 9,142,738 | 6.a.(1)
(2) Loans secured by real estate ...................................................... | RCON 3385 2,114,330 | 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers ............... | RCON 3386 89,121 | 6.a.(3)
(4) Commercial and industrial loans ................................................... | RCON 3387 3,920,930 | 6.a.(4)
(5) Loans to individuals for household, family, and other personal expenditures ....... | RCON 3388 1,401,685 | 6.a.(5)
(6) Obligations (other than securities and leases) of states and political subdivisions | /////////////////////// |
in the U.S. ....................................................................... | RCON 3389 73,657 | 6.a.(6)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs ............. | RCFN 3360 173,596 | 6.b.
7. Assets held in trading accounts .......................................................... | RCFD 3401 70,539 | 7.
8. Lease financing receivables (net of unearned income) ..................................... | RCFD 3484 211,267 | 8.
9. Total assets ............................................................................. | RCFD 3368 19,856,739 | 9.
LIABILITIES | /////////////////////// |
10. Interest-bearing transaction accounts in domestic offices (NOW accounts, ATS accounts, | /////////////////////// |
and telephone and preauthorized transfer accounts) (exclude demand deposits) ............. | RCON 3485 2,043,067 | 10.
11. Nontransaction accounts in domestic offices: | /////////////////////// |
a. Money market deposit accounts (MMDAs) ................................................. | RCON 3486 1,482,065 | 11.a.
b. Other savings deposits ................................................................ | RCON 3487 3,017,373 | 11.b.
c. Time certificates of deposit of $100,000 or more ...................................... | RCON 3345 873,340 | 11.c.
d. All other time deposits ............................................................... | RCON 3469 2,682,293 | 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement subsidiaries, and IBFs .. | RCFN 3404 398,354 | 12.
13. 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 .............. | RCFD 3353 715,846 | 13.
14. Other borrowed money ..................................................................... | RCFD 3355 76,692 | 14.
___________________________
_____________
(1) For all items, banks have the option of reporting either (1) an average of daily figures for the quarter, or
(2) an average of weekly figures (i.e., the Wednesday of each week of the quarter).
(2) Quarterly averages for all debt securities should be based on amortized cost.
(3) Quarterly averages for all equity securities should be based on historical cost.
23
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-14
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-L--Off-Balance Sheet Items
Please read carefully the instructions for the preparation of Schedule RC-L. Some of the amounts
reported in Schedule RC-L are regarded as volume indicators and not necessarily as measures of risk.
__________
| C460 | (-
____________ ________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
____________________________________________________________________________________________________ ____________________
1. Unused commitments: | ////////////////// |
a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., home | ////////////////// |
equity lines ............................................................................... | 3814 0 | 1.a.
b. Credit card lines .......................................................................... | 3815 0 | 1.b.
c. Commercial real estate, construction, and land development: | ////////////////// |
(1) Commitments to fund loans secured by real estate ....................................... | 3816 175,141 | 1.c.(1)
(2) Commitments to fund loans not secured by real estate ................................... | 6550 86,736 | 1.c.(2)
d. Securities underwriting .................................................................... | 3817 0 | 1.d.
e. Other unused commitments ................................................................... | 3818 6,243,833 | 1.e.
2. Financial standby letters of credit and foreign office guarantees ............................. | 3819 1,104,325 | 2.
___________________________
a. Amount of financial standby letters of credit conveyed to others | RCFD 3820 | 71,651 | ////////////////// | 2.a.
___________________________
3. Performance standby letters of credit and foreign office guarantees ........................... | 3821 91,318 | 3.
a. Amount of performance standby letters of credit conveyed to | ////////////////// |
___________________________
others .......................................................... | RCFD 3822 | 5,389 | ////////////////// | 3.a.
___________________________
4. Commercial and similar letters of credit ...................................................... | 3411 228,326 | 4.
5. Participations in acceptances (as described in the instructions) conveyed to others by | ////////////////// |
the reporting bank ............................................................................ | 3428 0 | 5.
6. Participations in acceptances (as described in the instructions) acquired by the reporting | ////////////////// |
(nonaccepting) bank ........................................................................... | 3429 0 | 6.
7. Securities borrowed ........................................................................... | 3432 0 | 7.
8. Securities lent (including customers' securities lent where the customer is indemnified | ////////////////// |
against loss by the reporting bank) ........................................................... | 3433 6,473 | 8.
9. Mortgages transferred (i.e., sold or swapped) with recourse that have been treated as sold | ////////////////// |
for Call Report purposes: | ////////////////// |
a. FNMA and FHLMC residential mortgage loan pools: | ////////////////// |
(1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3650 0 | 9.a.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ................... | 3651 0 | 9.a.(2)
b. Private (nongovernment-issued or -guaranteed) residential mortgage loan pools: | ////////////////// |
(1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3652 0 | 9.b.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ................... | 3653 0 | 9.b.(2)
c. Farmer Mac agricultural mortgage loan pools: | ////////////////// |
(1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3654 0 | 9.c.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ................... | 3655 0 | 9.c.(2)
10. When-issued securities: | ////////////////// |
a. Gross commitments to purchase .............................................................. | 3434 17,339 | 10.a.
b. Gross commitments to sell .................................................................. | 3435 20,995 | 10.b.
11. Interest rate contracts (exclude when-issued securities): | ////////////////// |
a. Notional value of interest rate swaps ...................................................... | 3450 5,228,389 | 11.a.
b. Futures and forward contracts .............................................................. | 3823 1,036,450 | 11.b.
c. Option contracts (e.g., options on Treasuries): | ////////////////// |
(1) Written option contracts ............................................................... | 3824 330,476 | 11.c.(1)
(2) Purchased option contracts ............................................................. | 3825 1,330,476 | 11.c.(2)
12. Foreign exchange rate contracts: | ////////////////// |
a. Notional value of exchange swaps (e.g., cross-currency swaps) .............................. | 3826 0 | 12.a.
b. Commitments to purchase foreign currencies and U.S. dollar exchange (spot, forward, | ////////////////// |
and futures) ............................................................................... | 3415 1,037,599 | 12.b.
c. Option contracts (e.g., options on foreign currency): | ////////////////// |
(1) Written option contracts ............................................................... | 3827 21,110 | 12.c.(1)
(2) Purchased option contracts ............................................................. | 3828 21,110 | 12.c.(2)
______________________
24
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-15
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-L--Continued
__________
| C461 | (-
____________ ________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
____________________________________________________________________________________________________ ____________________
13. Contracts on other commodities and equities: | ////////////////// |
a. Notional value of other swaps (e.g., oil swaps) ............................................ | 3829 34,242 | 13.a.
b. Futures and forward contracts (e.g., stock index and commodity--precious metals, | ////////////////// |
wheat, cotton, livestock--contracts) ....................................................... | 3830 0 | 13.b.
c. Option contracts (e.g., options on commodities, individual stocks and stock indexes): | ////////////////// |
(1) Written option contracts ............................................................... | 3831 0 | 13.c.(1)
(2) Purchased option contracts ............................................................. | 3832 0 | 13.c.(2)
14. All other off-balance sheet liabilities (itemize and describe each component of this item | ////////////////// |
over 25% of Schedule RC, item 28, "Total equity capital") ..................................... | 3430 0 | 14.
| ////////////////// |
_____________ __________________________
a. | TEXT 3555 |______________________________________________________| RCFD 3555 | | ////////////////// | 14.a.
___________
b. | TEXT 3556 |______________________________________________________| RCFD 3556 | | ////////////////// | 14.b.
___________
c. | TEXT 3557 |______________________________________________________| RCFD 3557 | | ////////////////// | 14.c.
_____________
d. | TEXT 3558 |______________________________________________________| RCFD 3558 | | ////////////////// | 14.d.
_____________ __________________________
15. All other off-balance sheet assets (itemize and describe each component of this item | ////////////////// |
over 25% of Schedule RC, item 28, "Total equity capital") ..................................... | 5591 0 | 15.
| ////////////////// |
_____________ __________________________
a. | TEXT 5592 |______________________________________________________| RCFD 5592 | | ////////////////// | 15.a.
___________
b. | TEXT 5593 |______________________________________________________| RCFD 5593 | | ////////////////// | 15.b.
___________
c. | TEXT 5594 |______________________________________________________| RCFD 5594 | | ////////////////// | 15.c.
_____________
d. | TEXT 5595 |______________________________________________________| RCFD 5595 | | ////////////////// | 15.d.
_____________ ________________________________________________
Memoranda
______________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
____________________________________________________________________________________________________ ____________________
1. Not applicable | ////////////////// |
2. Not applicable | ////////////////// |
3. Unused commitments with an original maturity exceeding one year that are reported in | ////////////////// |
Schedule RC-L, items 1.a through 1.e, above (report only the unused portions of commitments | ////////////////// |
that are fee paid or otherwise legally binding) ............................................... | 3833 3,790,294 | M.3.
a. Participations in commitments with an original maturity | ////////////////// |
___________________________
exceeding one year conveyed to others ........................... | RCFD 3834 | 117,051 | ////////////////// | M.3.a.
___________________________
4. To be completed only by banks with $1 billion or more in total assets: | ////////////////// |
Standby letters of credit and foreign office guarantees (both financial and performance) issued | ////////////////// |
to non-U.S. addressees (domicile) included in Schedule RC-L, items 2 and 3, above ............. | 3377 37,344 | M.4.
5. To be completed for the September report only: | ////////////////// |
Installment loans to individuals for household, family, and other personal expenditures that | ////////////////// |
have been securitized and sold without recourse (with servicing retained), amounts | ////////////////// |
outstanding by type of loan: | ////////////////// |
a. Loans to purchase private passenger automobiles ............................................ | 2741 N/A | M.5.a.
b. Credit cards and related plans ............................................................. | 2742 N/A | M.5.b.
c. All other consumer installment credit (including mobile home loans) ........................ | 2743 N/A | M.5.c.
______________________
25
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-16
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-M--Memoranda
__________
| C465 | (-
____________ ________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
______________________________________________________________________________________________________ ____________________
1. Extensions of credit by the reporting bank to its executive officers, directors, principal | ////////////////// |
shareholders, and their related interests as of the report date: | ////////////////// |
a. Aggregate amount of all extensions of credit to all executive officers, directors, principal | ////////////////// |
shareholders, and their related interests ..................................................... | 6164 61,242 | 1.a.
b. Number of executive officers, directors, and principal shareholders to whom the amount of all | ////////////////// |
extensions of credit by the reporting bank (including extensions of credit to | ////////////////// |
related interests) equals or exceeds the lesser of $500,000 or 5 percent Number | ////////////////// |
____________________________
of total capital as defined for this purpose in agency regulations. | RCFD 6165 | 7 | ////////////////// | 1.b.
____________________________
2. Federal funds sold and securities purchased under agreements to resell with U.S. branches | ////////////////// |
and agencies of foreign banks(1) (included in Schedule RC, items 3.a and 3.b) .................... | 3405 0 | 2.
3. Not applicable. | ////////////////// |
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for others | ////////////////// |
(include both retained servicing and purchased servicing): | ////////////////// |
a. Mortgages serviced under a GNMA contract ...................................................... | 5500 0 | 4.a.
b. Mortgages serviced under a FHLMC contract: | ////////////////// |
(1) Serviced with recourse to servicer ........................................................ | 5501 0 | 4.b.(1)
(2) Serviced without recourse to servicer ..................................................... | 5502 0 | 4.b.(2)
c. Mortgages serviced under a FNMA contract: | ////////////////// |
(1) Serviced under a regular option contract .................................................. | 5503 0 | 4.c.(1)
(2) Serviced under a special option contract .................................................. | 5504 0 | 4.c.(2)
d. Mortgages serviced under other servicing contracts ............................................ | 5505 0 | 4.d.
5. To be completed only by banks with $1 billion or more in total assets: | ////////////////// |
Customers' liability to this bank on acceptances outstanding (sum of items 5.a and 5.b must | ////////////////// |
equal Schedule RC, item 9): | ////////////////// |
a. U.S. addressees (domicile) .................................................................... | 2103 6,186 | 5.a.
b. Non-U.S. addressees (domicile) ................................................................ | 2104 2,492 | 5.b.
6. Intangible assets: | ////////////////// |
a. Mortgage servicing rights ..................................................................... | 3164 4,049 | 6.a.
b. Other identifiable intangible assets: | ////////////////// |
(1) Purchased credit card relationships ....................................................... | 5506 0 | 6.b.(1)
(2) All other identifiable intangible assets .................................................. | 5507 167,998 | 6.b.(2)
c. Goodwill ...................................................................................... | 3163 417,779 | 6.c.
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10) ........................ | 2143 589,826 | 6.d.
e. Intangible assets that have been grandfathered for regulatory capital purposes ................ | 6442 0 | 6.e.
______________________
YES NO
______________________
7. Does your bank have any mandatory convertible debt that is part of your Tier 2 capital? .......... | 6167 |///| X | 7.
____________________
If yes, complete items 7.a through 7.e: | RCFD Bil Mil Thou |
____________________
a. Total equity contract notes, gross ............................................................ | 3290 N/A | 7.a.
b. Common or perpetual preferred stock dedicated to redeem the above notes ....................... | 3291 N/A | 7.b.
c. Total equity commitment notes, gross .......................................................... | 3293 N/A | 7.c.
d. Common or perpetual preferred stock dedicated to redeem the above notes ....................... | 3294 N/A | 7.d.
e. Total (item 7.a minus 7.b plus 7.c minus 7.d) ................................................. | 3295 N/A | 7.e.
______________________
_____________
(1) Do not report federal funds sold and securities purchased under agreements to resell with other
commercial banks in the U.S. in this item.
26
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-17
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-M--Continued
___________________________
Dollar Amounts in Thousands | ///////// Bil Mil Thou |
_____________________________________________________________________________________________ _________________________
8. a. Other real estate owned: | /////////////////////// |
(1) Direct and indirect investments in real estate ventures ......................... | RCFD 5372 0 | 8.a.(1)
(2) All other real estate owned: | /////////////////////// |
(a) Construction and land development in domestic offices ....................... | RCON 5508 43,398 | 8.a.(2)(a)
(b) Farmland in domestic offices ................................................ | RCON 5509 2,961 | 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices ....................... | RCON 5510 557 | 8.a.(2)(c)
(d) Multifamily (5 or more) residential properties in domestic offices .......... | RCON 5511 504 | 8.a.(2)(d)
(e) Nonfarm nonresidential properties in domestic offices ....................... | RCON 5512 59,333 | 8.a.(2)(e)
(f) In foreign offices .......................................................... | RCFN 5513 0 | 8.a.(2)(f)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7) ....... | RCFD 2150 106,753 | 8.a.(3)
b. Investments in unconsolidated subsidiaries and associated companies: | /////////////////////// |
(1) Direct and indirect investments in real estate ventures ......................... | RCFD 5374 0 | 8.b.(1)
(2) All other investments in unconsolidated subsidiaries and associated companies ... | RCFD 5375 0 | 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8) ....... | RCFD 2130 0 | 8.b.(3)
c. Total assets of unconsolidated subsidiaries and associated companies ................ | RCFD 5376 0 | 8.c.
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC, | /////////////////////// |
item 23, "Perpetual preferred stock and related surplus" ............................... | RCFD 3778 0 | 9.
10. Mutual fund and annuity sales in domestic offices during the quarter (include | /////////////////////// |
proprietary, private label, and third party mutual funds): | /////////////////////// |
a. Money market funds .................................................................. | RCON 6441 5,766,274 | 10.a.
b. Equity securities funds ............................................................. | RCON 8427 0 | 10.b.
c. Debt securities funds ............................................................... | RCON 8428 0 | 10.c.
d. Other mutual funds .................................................................. | RCON 8429 0 | 10.d.
e. Annuities ........................................................................... | RCON 8430 0 | 10.e.
___________________________
_________________________________________________________________________________________________________________________________
| |
______________________
|Memorandum Dollar Amounts in Thousands | RCFD Bil Mil Thou | |
_________________________________________________________________________________________________ ____________________
|1. Interbank holdings of capital instruments (to be completed for the December report only): | ////////////////// | |
| a. Reciprocal holdings of banking organizations' capital instruments ........................ | 3836 N/A | M.1.a. |
| b. Nonreciprocal holdings of banking organizations' capital instruments ..................... | 3837 N/A | M.1.b. |
______________________
| |
_________________________________________________________________________________________________________________________________
27
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-18
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-N--Past Due and Nonaccrual Loans, Leases,
and Other Assets
The FFIEC regards the information reported in
all of Memorandum item 1, in items 1 through 10,
column A, and in Memorandum items 2 through 4, __________
column A, as confidential. | C470 | (-
__________________________________________________________________
| (Column A) | (Column B) | (Column C) |
| Past due | Past due 90 | Nonaccrual |
| 30 through 89 | days or more | |
| days and still | and still | |
| accruing | accruing | |
__________________________________________________________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
_______________________________________________________________________________________________________________________
1. Loans secured by real estate: | //////////////////// | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ................ | | 1246 41,543 | 1247 91,683 | 1.a.
b. To non-U.S. addressees (domicile) ............ | | 1249 0 | 1250 0 | 1.b.
2. Loans to depository institutions and | //////////////////// | ////////////////// | ////////////////// |
acceptances of other banks: | //////////////////// | ////////////////// | ////////////////// |
a. To U.S. banks and other U.S. depository | //////////////////// | ////////////////// | ////////////////// |
institutions ................................. | | 5378 0 | 5379 0 | 2.a.
b. To foreign banks ............................. | | 5381 0 | 5382 0 | 2.b.
3. Loans to finance agricultural production and | //////////////////// | ////////////////// | ////////////////// |
other loans to farmers .......................... | | 1597 1,544 | 1583 7,059 | 3.
4. Commercial and industrial loans: | //////////////////// | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ................ | | 1252 6,782 | 1253 42,620 | 4.a.
b. To non-U.S. addressees (domicile) ............ | | 1255 203 | 1256 1,494 | 4.b.
5. Loans to individuals for household, family, and | //////////////////// | ////////////////// | ////////////////// |
other personal expenditures: | //////////////////// | ////////////////// | ///////////////// |
a. Credit cards and related plans ............... | | 5384 250 | 5385 0 | 5.a.
b. Other (includes single payment, installment, | //////////////////// | ////////////////// | ////////////////// |
and all student loans) ....................... | | 5387 17,464 | 5388 967 | 5.b.
6. Loans to foreign governments and official | //////////////////// | ////////////////// | ////////////////// |
institutions .................................... | | 5390 0 | 5391 0 | 6.
7. All other loans ................................. | | 5460 2,234 | 5461 4,825 | 7.
8. Lease financing receivables: | //////////////////// | ////////////////// | ////////////////// |
a. Of U.S. addressees (domicile) ................ | | 1258 0 | 1259 500 | 8.a.
b. Of non-U.S. addressees (domicile) ............ | | 1272 0 | 1791 0 | 8.b.
9. Debt securities and other assets (exclude other | //////////////////// | ////////////////// | ////////////////// |
real estate owned and other repossessed assets) . | | 3506 0 | 3507 29 | 9.
__________________________________________________________________
====================================================================================================================================
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and
leases. Report in item 10 below certain guaranteed loans and leases that have already been included in the amounts reported in
items 1 through 8.
_________________________________________________________________
| RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
10. Loans and leases reported in items 1 |____________________ _____________________ ____________________|
through 8 above which are wholly or partially | /////////////////// | ////////////////// | ////////////////// |
guaranteed by the U.S. Government ............... | | 5613 52,698 | 5614 87,483 | 10.
a. Guaranteed portion of loans and leases | /////////////////// | ////////////////// | ////////////////// |
included in item 10 above .................... | | 5616 50,447 | 5617 80,986 | 10.a.
_________________________________________________________________
28
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-19
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-N--Continued
_________
| C473 | (-
______________________________________________________ _________
| (Column A) | (Column B) | (Column C) |
| Past due | Past due 90 | Nonaccrual |
| 30 through 89 | days or more | |
| days and still | and still | |
Memoranda | accruing | accruing | |
____________________ _____________________ _____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________ ____________________ ____________________ _____________________
1. Restructured loans and leases included in | ////////////////// | ////////////////// | ////////////////// |
Schedule RC-N, items 1 through 8, above ......... | | | | M.1.
2. Loans to finance commercial real estate, | ////////////////// | ////////////////// | ////////////////// |
construction, and land development activities | ////////////////// | ////////////////// | ////////////////// |
(not secured by real estate) included in | ////////////////// | ////////////////// | ////////////////// |
Schedule RC-N, items 4 and 7, above ............. | | 6559 0 | 6560 523 | M.2.
____________________ ____________________ ____________________
3. Loans secured by real estate in domestic offices | RCON Bil Mil Thou | RCON Bil Mil Thou | RCON Bil Mil Thou |
____________________ ____________________ ____________________
(included in Schedule RC-N, item 1, above): | ////////////////// | ////////////////// | ////////////////// |
a. Construction and land development ............ | | 2769 3,663 | 3492 22,831 | M.3.a.
b. Secured by farmland .......................... | | 3494 0 | 3495 624 | M.3.b.
c. Secured by 1-4 family residential properties: | ////////////////// | ////////////////// | ////////////////// |
(1) Revolving, open-end loans secured by | ////////////////// | ////////////////// | ////////////////// |
1-4 family residential properties and | ////////////////// | ////////////////// | ////////////////// |
extended under lines of credit ........... | | 5399 0 | 5400 0 | M.3.c.(1)
(2) All other loans secured by 1-4 family | ////////////////// | ////////////////// | ////////////////// |
residential properties ................... | | 5402 4,401 | 5403 8,879 | M.3.c.(2)
d. Secured by multifamily (5 or more) | ////////////////// | ////////////////// | ////////////////// |
residential properties ....................... | | 3500 406 | 3501 6,041 | M.3.d.
e. Secured by nonfarm nonresidential properties . | | 3503 33,073 | 3504 53,308 | M.3.e.
________________________________________________________________
___________________________________________
| (Column A) | (Column B) |
| Past due 30 | Past due 90 |
| through 89 days | days or more |
____________________ ____________________
| RCFD Bil Mil Thou | RCFD Bil Mil Thou |
____________________ ____________________
4. Interest rate, foreign exchange rate, and other | ////////////////// | ////////////////// |
commodity and equity contracts: | ////////////////// | ////////////////// |
a. Book value of amounts carried as assets ...... | | 3528 0 | M.4.a.
b. Replacement cost of contracts with a | ////////////////// | ////////////////// |
positive replacement cost .................... | | 3530 0 | M.4.b.
___________________________________________
29
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-20
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-O--Other Data for Deposit Insurance Assessments
An amended Certified Statement should be submitted to the FDIC if the amounts reported in items 1
through 10 of this schedule are amended after the semiannual Certified Statement originally covering __________
this report date has been filed with the FDIC. | C475 | (-
____________ ________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
1. Unposted debits (see instructions): | ////////////////// |
a. Actual amount of all unposted debits ...................................................... | 0030 N/A | 1.a.
OR | ////////////////// |
b. Separate amount of unposted debits: | ////////////////// |
(1) Actual amount of unposted debits to demand deposits ................................... | 0031 0 | 1.b.(1)
(2) Actual amount of unposted debits to time and savings deposits(1) ...................... | 0032 0 | 1.b.(2)
2. Unposted credits (see instructions): | ////////////////// |
a. Actual amount of all unposted credits ..................................................... | 3510 N/A | 2.a.
OR | ////////////////// |
b. Separate amount of unposted credits: | ////////////////// |
(1) Actual amount of unposted credits to demand deposits .................................. | 3512 0 | 2.b.(1)
(2) Actual amount of unposted credits to time and savings deposits(1) ..................... | 3514 0 | 2.b.(2)
3. Uninvested trust funds (cash) held in bank's own trust department (not included in total | ////////////////// |
deposits in domestic offices) ................................................................ | 3520 0 | 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in | ////////////////// |
Puerto Rico and U.S. territories and possessions (not included in total deposits): | ////////////////// |
a. Demand deposits of consolidated subsidiaries .............................................. | 2211 3,039 | 4.a.
b. Time and savings deposits(1) of consolidated subsidiaries ................................. | 2351 16 | 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries ...................... | 5514 0 | 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions: | ////////////////// |
a. Demand deposits in insured branches (included in Schedule RC-E, Part II) .................. | 2229 0 | 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part II) ..... | 2383 0 | 5.b.
c. Interest accrued and unpaid on deposits in insured branches | ////////////////// |
(included in Schedule RC-G, item 1.b) ..................................................... | 5515 0 | 5.c.
______________________
______________________
Item 6 is not applicable to state nonmember banks that have not been authorized by the | ////////////////// |
Federal Reserve to act as pass-through correspondents. | ////////////////// |
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on | ////////////////// |
behalf of its respondent depository institutions that are also reflected as deposit liabilities| ////////////////// |
of the reporting bank: | ////////////////// |
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, | ////////////////// |
Memorandum item 4.a) ...................................................................... | 2314 1,974 | 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule RC-E, Part I, | ////////////////// |
Memorandum item 4.b) ...................................................................... | 2315 0 | 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1) | ////////////////// |
a. Unamortized premiums ...................................................................... | 5516 12,476 | 7.a.
b. Unamortized discounts ..................................................................... | 5517 0 | 7.b.
______________________
_______________________________________________________________________________________________________________________________
| |
|8. To be completed by banks with "Oakar deposits." |
______________________
| Total "Adjusted Attributable Deposits" of all institutions acquired under Section 5(d)(3) of | ////////////////// | |
| the Federal Deposit Insurance Act (from most recent FDIC Oakar Transaction Worksheet(s)) .... | 5518 N/A | 8. |
______________________
| |
_______________________________________________________________________________________________________________________________
______________________
9. Deposits in lifeline accounts ................................................................ | 5596 ///////////// | 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total | ////////////////// |
deposits in domestic offices) ................................................................ | 8432 0 | 10.
______________________
______________
(1) For FDIC insurance assessment purposes, "time and savings deposits" consists of nontransaction
accounts and all transaction accounts other than demand deposits.
30
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-21
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-O--Continued
Memoranda (to be completed each quarter except as noted)
______________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
1. Total deposits in domestic offices of the bank (sum of Memorandum items 1.a.(1) and 1.b.(1) | ////////////////// |
must equal Schedule RC, item 13.a): | ////////////////// |
a. Deposit accounts of $100,000 or less: | ////////////////// |
(1) Amount of deposit accounts of $100,000 or less ........................................ | 2702 8,952,562 | M.1.a.(1)
(2) Number of deposit accounts of $100,000 or less (to be Number | ////////////////// |
___________________________
completed for the June report only) ........................ | RCON 3779 | 1,253,217 | ////////////////// | M.1.a.(2)
___________________________
b. Deposit accounts of more than $100,000: | ////////////////// |
(1) Amount of deposit accounts of more than $100,000 ........... Number | 2710 6,516,111 | M.1.b.(1)
___________________________
(2) Number of deposit accounts of more than $100,000 ........... | RCON 2722 | 16,476 | ////////////////// | M.1.b.(2)
_________________________________________________
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by multiplying the number of
deposit accounts of more than $100,000 reported in Memorandum item 1.b.(2) above by
$100,000 and subtracting the result from the amount of deposit accounts of more than
$100,000 reported in Memorandum item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a method or procedure for YES NO
______________________
determining a better estimate of uninsured deposits than the estimate described above ..... | 6861| |///| X | M.2.a.
____________________
X
b. If the box marked YES has been checked, report the estimate of uninsured deposits | RCON Bil Mil Thou |
____________________
determined by using your bank's method or procedure ....................................... | 5597 N/A | M.2.b.
______________________
_____________________________________________________________________________________________________________________________
| C477 | (-
Person to whom questions about the Reports of Condition and Income should be directed: __________
Karen Gatenby, Vice President (713) 216-5263
___________________________________________________________________________________ ______________________________________
Name and Title (TEXT 8901) Area code and phone number (TEXT 8902)
31
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-22
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-R--Risk-Based Capital
This schedule must be completed by all banks as follows: Banks that reported total assets of $1 billion or more in Schedule RC,
item 12, for June 30, 1993, must complete items 2 through 9 and Memorandum item 1. Banks with assets of less than
$1 billion must complete items 1 through 3 below or Schedule RC-R in its entirety, depending on their response to item 1 below.
____________
| C480 | (-
1. Test for determining the extent to which Schedule RC-R must be completed. To be completed _____ __________
only by banks with total assets of less than $1 billion. Indicate in the appropriate | YES NO |
box at the right whether the bank has total capital greater than or equal to eight percent __________ _______________
of adjusted total assets ............................................................... | RCFD 6056 | |////| | 1.
_____________________________
For purposes of this test, adjusted total assets equals total assets less cash, U.S. Treasuries, U.S. Government
agency obligations, and 80 percent of U.S. Government-sponsored agency obligations plus the allowance for loan
and lease losses and selected off-balance sheet items as reported on Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to complete items 2 and 3 below. If the box marked
NO has been checked, the bank must complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual risk-based capital ratio is less than eight
percent or that the bank is not in compliance with the risk-based capital guidelines.
___________________________________________
| (Column A) | (Column B) |
|Subordinated Debt(1)| Other |
| and Intermediate | Limited- |
Items 2 and 3 are to be completed by all banks. | Term Preferred | Life Capital |
| Stock | Instruments |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
2. Subordinated debt(1) and other limited-life capital instruments (original | ////////////////// | ////////////////// |
weighted average maturity of at least five years) with a remaining | ////////////////// | ////////////////// |
maturity of: | ////////////////// | ////////////////// |
a. One year or less ...................................................... | 3780 0 | 3786 0 | 2.a.
b. Over one year through two years ....................................... | 3781 0 | 3787 0 | 2.b.
c. Over two years through three years .................................... | 3782 0 | 3788 0 | 2.c.
d. Over three years through four years ................................... | 3783 0 | 3789 0 | 2.d.
e. Over four years through five years .................................... | 3784 7,000 | 3790 0 | 2.e.
f. Over five years ....................................................... | 3785 338,000 | 3791 0 | 2.f.
___________________________________________
______________________
3. Total qualifying capital (i.e., Tier 1 and Tier 2 capital) allowable under the risk-based | RCFD Bil Mil Thou |
____________________
capital guidelines ............................................................................ | 3792 1,759,720 | 3.
______________________
___________________________________________
| (Column A) | (Column B) |
Items 4-9 and Memorandum item 1 are to be completed | Assets | Credit Equiv- |
by banks that answered NO to item 1 above and | Recorded | alent Amount |
by banks with total assets of $1 billion or more. | on the | of Off-Balance |
| Balance Sheet | Sheet Items(2) |
____________________ ____________________
4. Assets and credit equivalent amounts of off-balance sheet items assigned | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
____________________ ____________________
to the Zero percent risk category: | ////////////////// | ////////////////// |
a. Assets recorded on the balance sheet: | ////////////////// | ////////////////// |
(1) Securities issued by, other claims on, and claims unconditionally | ////////////////// | ////////////////// |
guaranteed by, the U.S. Government and its agencies and other | ////////////////// | ////////////////// |
OECD central governments .......................................... | 3794 1,296,824 | ////////////////// | 4.a.(1)
(2) All other ......................................................... | 3795 708,024 | ////////////////// | 4.a.(2)
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3796 0 | 4.b.
___________________________________________
______________
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.e, "Total."
(2) Do not report in column B the risk-weighted amount of assets reported in column A.
32
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-23
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Schedule RC-R--Continued
___________________________________________
| (Column A) | (Column B) |
| Assets | Credit Equiv- |
| Recorded | alent Amount |
| on the | of Off-Balance |
| Balance Sheet | Sheet Items(1) |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
5. Assets and credit equivalent amounts of off-balance sheet items | ////////////////// | ////////////////// |
assigned to the 20 percent risk category: | ////////////////// | ////////////////// |
a. Assets recorded on the balance sheet: | ////////////////// | ////////////////// |
(1) Claims conditionally guaranteed by the U.S. Government and its | ////////////////// | ////////////////// |
agencies and other OECD central governments ........................| 3798 828,077 | ////////////////// | 5.a.(1)
(2) Claims collateralized by securities issued by the U.S. Govern- | ////////////////// | ////////////////// |
ment and its agencies and other OECD central governments; by | ////////////////// | ////////////////// |
securities issued by U.S. Government-sponsored agencies; and | ////////////////// | ////////////////// |
by cash on deposit .................................................| 3799 158,164 | ////////////////// | 5.a.(2)
(3) All other ..........................................................| 3800 7,501,299 | ////////////////// | 5.a.(3)
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3801 434,717 | 5.b.
6. Assets and credit equivalent amounts of off-balance sheet items | ////////////////// | ////////////////// |
assigned to the 50 percent risk category: | ////////////////// | ////////////////// |
a. Assets recorded on the balance sheet .................................. | 3802 511,492 | ////////////////// | 6.a.
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3803 32,045 | 6.b.
7. Assets and credit equivalent amounts of off-balance sheet items | ////////////////// | ////////////////// |
assigned to the 100 percent risk category: | ////////////////// | ////////////////// |
a. Assets recorded on the balance sheet .................................. | 3804 9,930,242 | ////////////////// | 7.a.
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3805 2,809,610 | 7.b.
8. On-balance sheet asset values excluded from the calculation of the | ////////////////// | ////////////////// |
risk-based capital ratio(2) .............................................. | 3806 109,001 | ////////////////// | 8.
9. Total assets recorded on the balance sheet (sum of | ////////////////// | ////////////////// |
items 4.a, 5.a, 6.a, 7.a, and 8, column A)(must equal Schedule RC, | ////////////////// | ////////////////// |
item 12 plus items 4.b and 4.c) .......................................... | 3807 21,043,123 | ////////////////// | 9.
___________________________________________
___________________________________________
| (Column A) | (Column B) |
| Notional | Replacement |
| Principal | Cost |
Memorandum | Value | (Market Value) |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
1. Notional principal value and replacement cost of interest rate and | ////////////////// | ////////////////// |
foreign exchange rate contracts (in column B, report only those | ////////////////// | ////////////////// |
contracts with a positive replacement cost): | ////////////////// | ////////////////// |
a. Interest rate contracts (exclude futures contracts) ................... | ////////////////// | 3808 130,423 | M.1.a.
(1) With a remaining maturity of one year or less ..................... | 3809 1,901,817 | ////////////////// | M.1.a.(1)
(2) With a remaining maturity of over one year ........................ | 3810 5,710,837 | ////////////////// | M.1.a.(2)
b. Foreign exchange rate contracts (exclude contracts with an original | ////////////////// | ////////////////// |
maturity of 14 days or less and futures contracts) .................... | ////////////////// | 3811 14,817 | M.1.b.
(1) With a remaining maturity of one year or less ..................... | 3812 324,170 | ////////////////// | M.1.b.(1)
(2) With a remaining maturity of over one year ........................ | 3813 41,311 | ////////////////// | M.1.b.(2)
___________________________________________
______________
(1) Do not report in column B the risk-weighted amount of assets reported in column A.
(2) Until a final rule on the regulatory capital treatment of net unrealized holding gains (losses) on available-for-sale
securities that is applicable to the reporting bank has taken effect, a bank that has adopted FASB Statement No. 115 should
include the difference between the fair value and the amortized cost of its available-for-sale securities in item 8 and report
the amortized cost of these securities in items 4 through 7 above. Item 8 also includes on-balance sheet asset values (or
portions thereof) of off-balance sheet interest rate, foreign exchange rate, and commodity contracts and those contracts (e.g.,
futures contracts) not subject to risk-based capital. Exclude from item 8 margin accounts and accrued receivables as well as
any portion of the allowance for loan and lease losses in excess of the amount that may be included in Tier 2 capital.
33
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-24
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on June 30, 1994
Texas Commerce Bank National Association Houston Texas
_______________________________________________________________ __________________________________, ___________________________
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, sub- the truncated statement will appear as the bank's statement
mit a brief narrative statement on the amounts reported in both on agency computerized records and in computer-file
the Reports of Condition and Income. This optional statement releases to the public.
will be made available to the public, along with the publicly
available data in the Reports of Condition and Income, in re- All information furnished by the bank in the narrative state-
sponse to any request for individual bank report data. How- ment must be accurate and not misleading. Appropriate ef-
ever, the information reported in column A and in all of forts shall be taken by the submitting bank to ensure the
Memorandum item 1 of Schedule RC-N is regarded as confidential statement's accuracy. The statement must be signed, in the
and will not be released to the public. BANKS CHOOSING TO space provided below, by a senior officer of the bank who
SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE thereby attests to its accuracy.
STATEMENT DOES NOT CONTAIN THE NAMES OR OTHER
IDENTIFICATIONS OF INDIVIDUAL BANK CUSTOMERS, REFERENCES If, subsequent to the original submission, material changes
TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN are submitted for the data reported in the Reports of Condi-
SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY ARE tion and Income, the existing narrative statement will be
NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD deleted from the files, and from disclosure; the bank, at its
COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing option, may replace it with a statement, under signature, ap-
not to make a statement may check the "No comment" box below propriate to the amended data.
and should make no entries of any kind in the space provided
for the narrative statement; i.e., DO NOT enter in this space The optional narrative statement will appear in agency
such phrases as "No statement," "Not applicable," "N/A," records and in release to the public exactly as submitted (or
"No comment," and "None." amended as described in the preceding paragraph) by the
management of the bank (except for the truncation of state-
ments exceeding the 750-character limit described above).
THE STATEMENT WILL NOT BE EDITED OR SCREENED IN ANY
The optional statement must be entered on this sheet. The WAY BY THE SUPERVISORY AGENCIES FOR ACCURACY OR
statement should not exceed 100 words. Further, regardless RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT
of the number of words, the statement must not exceed 750 SIGNIFY THAT ANY FEDERAL SUPERVISORY AGENCY HAS
characters, including punctuation, indentation, and standard VERIFIED OR CONFIRMED THE ACCURACY OF THE INFORMATION
spacing between words and sentences. If any submission CONTAINED THEREIN. A STATEMENT TO THIS EFFECT WILL
should exceed 750 characters, as defined, it will be truncated APPEAR ON ANY PUBLIC RELEASE OF THE OPTIONAL STATEMENT
at 750 characters with no notice to the submitting bank and SUBMITTED BY THE MANAGEMENT OF THE REPORTING BANK.
_________________________________________________________________________________________________________________________________
No comment | | (RCON 6979) | C471 | C472 |(-
___ ___________________
BANK MANAGEMENT STATEMENT (please type or print clearly):
(TEXT 6980)
Signature of Kenneth L. Tilton appears here July 28, 1994
_____________________________________________ ________________________________
Signature of Executive Officer of Bank Date of Signature
34
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/94 ST-BK: 48-3926
Address: P.O. Box 2558
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
- ----------------------------------------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF BANK | OMB No. For OCC: 1557-0081
| OMB No. For FDIC: 3064-0052
| OMB No. For Federal Reserve: 7100-0036
| Expiration Date: 2/28/95
|
PLACE LABEL HERE | SPECIAL REPORT
| (Dollar Amounts in Thousands)
|
__________________________________________________________________
| CLOSE OF BUSINESS | FDIC Certificate Number | |
| DATE | | C-700 | (-
| 6/30/94 | |0|3|2|6|3| | |
__________________________________________________________________________________________________________________________________
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
- ----------------------------------------------------------------------------------------------------------------------------------
The following information is required by Public Laws 90-44 and 102-242, but does not constitute a part of the Report of Condition.
With each Report of Condition, these Laws require all banks to furnish a report of all loans or other extensions of credit to their
executive officers made since the date of the previous Report of Condition. Data regarding individual loans or other extensions of
credit are not required. If no such loans or other extensions of credit were made during the period, insert "none" against subitem
(a). (Exclude the first $15,000 of indebtedness of each executive officer under bank credit card plan.) See Sections 215.2 and
215.3 of Title 12 of the Code of Federal Regulations (Federal Reserve Board Regulation O) for the definitions of "executive officer"
and "extension of credit," respectively. Exclude loans and other extensions of credit to directors and principal shareholders who
are not executive officers.
- ----------------------------------------------------------------------------------------------------------------------------------
_____________________________
a. Number of loans made to executive officers since the previous Call Report date .............. | RCFD 3561 | 0 a.
____________________________
b. Total dollar amount of above loans (in thousands of dollars) ................................ | RCFD 3562 | 0 b.
_____________________________
c. Range of interest charged on above loans _______________________________________________________
(example: 9 3/4% = 9.75) .......................................... | RCFD 7701 | 0.00 | % to | RCFD 7702 | 0.00 | % c.
_______________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT | DATE (Month, Day, Year)
|
|
|
Signature of Kenneth L. Tilton appears here |
__________________________________________________________________________________________________________________________________
NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED (TEXT 8903) | AREA CODE/PHONE NUMBER (TEXT 8904)
|
Karen Gatenby, Vice President | (713) 216-5263
|
__________________________________________________________________________________________________________________________________
FDIC 8040/53 (12-92)
35
