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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 14, 1996
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ELECTRONIC DATA SYSTEMS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 75-2548221
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5400 LEGACY DRIVE, PLANO, TEXAS 75024-3199; (214) 604-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JOSEPH M. GRANT
CHIEF FINANCIAL OFFICER
ELECTRONIC DATA SYSTEMS CORPORATION
5400 LEGACY DRIVE
PLANO, TEXAS 75024-3199
(214) 604-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
D. GILBERT FRIEDLANDER
ELECTRONIC DATA SYSTEMS CORPORATION
5400 LEGACY DRIVE
PLANO, TX 75024-3199
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this 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. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /_/
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. /_/
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE
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Debt Securities (2) $2,000,000,000 $689,655.17
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) There are being registered hereunder an indeterminate principal amount of
Debt Securities as may be sold from time to time by the Registrant. If any Debt
Securities are being issued at an original issue discount, then the offering
price shall be in such greater principal amount as shall result in an aggregate
initial offering price not to exceed $2,000,000,000 less the dollar amount of
any securities previously issued hereunder. In no event will the aggregate
initial offering price of all securities issued from time to time pursuant to
this Registration Statement exceed $2,000,000,000, in U.S. dollars or equivalent
thereof.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BY ANY SALE OF THESE SECURUTIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
================================================================================
SUBJECT TO COMPLETION, DATED AUGUST 14, 1996
PROSPECTUS
ELECTRONIC DATA SYSTEMS CORPORATION
DEBT SECURITIES
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Electronic Data Systems Corporation ("EDS") may offer and sell from
time to time, at prices and on terms to be determined at or prior to the
time of sale, its debt securities consisting of debentures, notes or other
unsecured evidences of indebtedness (the "Debt Securities") with an
aggregate initial offering price not to exceed U.S. $2,000,000,000. 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.
The Debt Securities may be sold for U.S. dollars or one or more foreign
currency units 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 currency units or composite
currencies.
The terms of the Debt Securities, including where applicable the
specific designation, aggregate principal amount, denominations, ranking,
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 EDS or the holder, the currency or currency
unit in which principal, premium or interest is payable, any terms for
exchangeability, sinking fund payments, prepayment, the initial public
offering price, and the names of any underwriters or agents, the principal
amounts, if any, to be purchased by underwriters, the compensation, if any,
of such 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 an accompanying
Prospectus Supplement (the "Prospectus Supplement").
EDS may sell the Debt Securities to underwriters, to or through
dealers acting as principals for their own account or acting as agents,
through agents designated from time to time, or directly to other
purchasers. EDS may indemnify such underwriters, dealers and agents
against certain liabilities, including liabilities under the Securities Act
of 1933. See "Plan of Distribution."
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF THE DEBT
SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
___________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
___________________
The date of this Prospectus is August , 1996
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR IN AN APPLICABLE PROSPECTUS SUPPLEMENT IN
CONNECTION WITH ANY OFFER MADE BY THIS PROSPECTUS AND SUCH PROSPECTUS SUPPLEMENT
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY EDS OR ANY UNDERWRITER, DEALER, AGENT OR OTHER
PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR
ANY SALES MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF EDS SINCE THE DATE
HEREOF OR THEREOF OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OF
SOLICITATION IN SUCH JURISDICTION.
AVAILABLE INFORMATION
EDS is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by EDS with the Commission can be inspected, and copies may be
obtained, at the Public Reference Section of the Commission, Judiciary Plaza,
450 Fifth Street N.W., Washington D.C. 20549, at prescribed rates, as well as at
the following Regional Offices of the Commission: Seven World Trade Center, New
York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Such reports, proxy statements and other
information may also be obtained from the web site that the Commission maintains
at http://www.sec.gov. Reports, proxy statements and other information
concerning EDS can also be inspected at the offices of the New York Stock
Exchange, Inc. (the "NYSE"), 20 Broad Street, New York, New York 10005, and can
also be obtained electronically through a variety of databases, including, among
others, the Commission's Electronic Data Gathering And Retrieval ("EDGAR")
program, Knight-Ridder Information, Inc., Federal Filings/Dow Jones and
Lexis/Nexis.
This Prospectus constitutes part of a Registration Statement on Form S-3
(together with all amendments, supplements and exhibits thereto, the
"Registration Statement") filed by EDS with the Commission under the Securities
Act of 1933, as amended (the "Securities Act"). Pursuant to the rules and
regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement. Such information can be inspected at
and obtained from the Commission and the NYSE in the manner set forth above. For
further information pertaining to EDS and the Debt Securities, reference is
hereby made to the Registration Statement. Statements contained herein
concerning any document filed as an exhibit to the Registration Statement are
not necessarily complete and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by EDS with the Commission are hereby
incorporated by reference in this Prospectus: (i) Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1996 and June 30, 1996; and (ii) Current
Reports on Form 8-K dated April 23, 1996, June 7, 1996, June 18, 1996, and July
16, 1996.
All documents filed by EDS with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Debt Securities 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 by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
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EDS will provide without charge to each person to whom this Prospectus is
delivered, upon the written or oral request of such person, a copy of any and
all of the documents which have been or may be incorporated by reference in this
Prospectus, other than exhibits to such documents not specifically described
above. Requests for such documents should be directed to Electronic Data Systems
Corporation, Investor Relations, Mail Stop H3-6F-47, 5400 Legacy Drive, Plano,
Texas, 75024-3199 (Telephone Number: (214) 604-6000).
THE COMPANY
EDS is a world leader in applying information technology ("IT"), with over
30 years of experience in using advanced computer and communications
technologies to meet its clients' business needs. EDS offers its clients a
continuum of services worldwide, including the management of computers,
networks, information systems, information processing facilities, business
operations and related personnel, providing to its clients advantages in cost-
effectiveness, speed of implementation and state-of-the-art technology. In
delivering this continuum of services, EDS generally performs one or more of
five basic functions: management consulting services (through EDS' A.T. Kearney
subsidiary); creation of IT systems; assembly of IT platforms; management of IT
operations; and management of business operations. EDS is able to leverage its
extensive technical infrastructure and other numerous resources to offer IT
services at clients' sites or through large scale information processing centers
or specialized distributed service centers located worldwide.
EDS is incorporated under the laws of the State of Delaware. EDS'
principal executive offices are located at 5400 Legacy Drive, Plano, Texas
75024, telephone number: (214) 604-6000.
USE OF PROCEEDS
Except as may be set forth in an applicable Prospectus Supplement
accompanying this Prospectus, the net proceeds from the sale of the Debt
Securities offered hereby will be used for general corporate purposes,
which may include the reduction of short-term and other indebtedness, the
financing of acquisitions and capital expenditures, and the financing of
EDS' operations.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for EDS for the periods presented. The ratio has been computed by dividing
the sum of earnings (loss) before income taxes (excluding the cumulative
effect of an accounting change) and fixed charges (excluding capitalized
interest) by fixed charges (including capitalized interest). Fixed charges
consist of interest expense, interest capitalized (except as noted above)
and a portion of rentals for real and personal property deemed to be
representative of the interest component of rent expense.
FOR THE SIX
MONTHS ENDED FOR THE YEARS ENDED DECEMBER 31,
JUNE 30, 1996 1995 1994 1993 1992 1991
(a) 5.24 6.61 5.93 4.67 4.73
---- ---- ---- ---- ----
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(a) The deficiency in earnings to fixed charges for the six months ended
June 30, 1996 was $162.6 million. Earnings before income taxes for such
period include one-time charges of $850 million.
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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 applicable Prospectus Supplement. Accordingly, for a
description of the terms of a particular issue of Debt Securities, reference
must be made to both the Prospectus Supplement relating thereto and to the
following description.
The Debt Securities, which will represent general unsecured obligations of
EDS, may be issued in one or more series under an Indenture dated as of August
12, 1996 (the "Indenture") between EDS and Texas Commerce Bank National
Association, as trustee (the "Trustee"). The Indenture has been filed with the
Commission as an exhibit to the Registration Statement 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
definitions therein of certain terms. Unless otherwise defined herein, all
capitalized terms shall have the definitions set forth in the Indenture.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder. The Debt Securities may be issued from
time to time in one or more series up to the aggregate principal amount which
may be authorized from time to time by EDS. All Debt Securities will be
unsecured and will rank pari passu with all other unsecured unsubordinated
indebtedness of EDS. Except as described below, the Indenture does not limit the
amount of other indebtedness or securities which may be issued by EDS or any of
its subsidiaries or contain financial or similar restrictions on EDS or any of
its subsidiaries. EDS' rights and the rights of its creditors, including holders
of Debt Securities, to participate in any distribution of assets of any
subsidiary upon the latter's liquidation or reorganization or otherwise are
effectively subordinated to the claims of the subsidiary's creditors, except to
the extent that EDS or any of its creditors may itself be a creditor of that
subsidiary.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities of the series with respect to which such Prospectus
Supplement is being delivered:
(a) The title of the Debt Securities of the series;
(b) Any limit on the aggregate principal amount of the Debt
Securities of the series that may be authenticated and delivered under
the Indenture;
(c) The date or dates on which the principal and premium with
respect to the Debt Securities of the series are payable;
(d) The rate or rates (which may be fixed or variable) at which
the Debt Securities of the series shall bear interest (if any) or the
method of determining such rate or rates, the date or dates from which
such interest shall accrue, the interest payment dates on which such
interest shall be payable or the method by which such dates will be
determined, the record dates for the determination of holders thereof
to whom such interest is payable (in the case of Registered
Securities), and the basis upon which interest will be calculated if
other than that of a 360-day year of twelve 30-day months;
(e) The place or places, if any, in addition to or instead of the
corporate trust office of the Trustee (in the case of Registered
Securities) or the principal London office of the Trustee (in the case
of Bearer Securities), where the principal, premium, and interest with
respect to Debt Securities of the series shall be payable;
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(f) The price or prices at which, the period or periods within
which, and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of EDS or
otherwise;
(g) Whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both and, if Bearer
Securities are to be issued, whether coupons will be attached thereto,
whether Bearer Securities of the series may be exchanged for
Registered Securities of the series, and the circumstances under which
and the places at which any such exchanges, if permitted, may be made;
(h) If any Debt Securities of the series are to be issued as
Bearer Securities or as one or more Global Securities representing
individual Bearer Securities of the series, whether certain provisions
of the payment of additional interest or tax redemptions shall apply;
whether interest with respect to any portion of a temporary Bearer
Security of the series payable with respect to any interest payment
date prior to the exchange of such temporary Bearer Security for
definitive Bearer Securities of the series shall be paid to any
clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the persons entitled to interest payable on such interest
payment date; and the terms upon which a temporary Bearer Security may
be exchanged for one or more definitive Bearer Securities of the
series;
(i) The obligation, if any, of EDS to redeem, purchase, or repay
Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof and the
price or prices at which, the period or periods within which, and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, purchased, or repaid, in whole or in part, pursuant to such
obligations;
(j) The terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for other Debt Securities
or indebtedness or other securities of any kind of EDS or any other
issuer or obligor, and the terms and conditions upon which such
conversion or exchange shall be effected, including the initial
conversion or exchange price or rate, the conversion or exchange
period, and any other additional provisions;
(k) If other than denominations of $1,000 or any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(l) If the amount of principal, premium, or interest with respect
to the Debt Securities of the series may be determined with reference
to an index or pursuant to a formula, the manner in which such amounts
will be determined;
(m) If the principal amount payable at the stated maturity of
Debt Securities of the series will not be determinable as of any one
or more dates prior to such stated maturity, the amount that will be
deemed to be such principal amount as of any such date for any
purpose, including the principal amount thereof which will be due and
payable upon any maturity other than the stated maturity or which will
be deemed to be outstanding as of any such date (or, in any such case,
the manner in which such deemed principal amount is to be determined),
and if necessary, the manner of determining the equivalent thereof in
United States currency;
(n) Any changes or additions to the provisions of the Indenture
dealing with defeasance, including the addition of additional
covenants that may be subject to EDS' covenant defeasance option;
(o) If other than such coin or currency of the United States as
at the time of payment is legal tender for payment of public and
private debts, the coin or currency or currencies or units of two or
more
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currencies in which payment of the principal, premium, and
interest with respect to Debt Securities of the series shall be
payable;
(p) If other than the principal amount thereof, the portion of
the principal amount of Debt Securities of the series that shall be
payable upon declaration of acceleration of the maturity thereof or
provable in bankruptcy;
(q) Any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in the
right of the Trustee or the holders to declare the principal, premium,
and interest with respect to such Debt Securities due and payable;
(r) If the Debt Securities of the series shall be issued in whole
or in part in the form of a Global Security, the terms and conditions,
if any, upon which such Global Security may be exchanged in whole or
in part for other individual Debt Securities in definitive registered
form, the Depositary for such Global Security, and the form of any
legend or legends to be borne by any such Global Security in addition
to or in lieu of the legend referred to in the Indenture;
(s) Any addition to or change in the covenants and definitions
then set forth in the Indenture or in the terms then set forth in the
Indenture relating to permitted consolidations, mergers, or sales of
assets;
(t) With regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(u) Any other terms of the Debt Securities of the series (which
terms shall not be prohibited by the provisions of the Indenture).
The Prospectus Supplement will also describe any material United States
federal income tax consequences or other special considerations applicable to
the series of Debt Securities to which such Prospectus Supplement relates,
including those applicable to (a) Bearer Securities, (b) Debt Securities with
respect to which payments of principal, premium, or interest are determined with
reference to an index or formula (including changes in prices of particular
securities, currencies, or commodities), (c) Debt Securities with respect to
which principal, premium, or interest is payable in a foreign or composite
currency, (d) Debt Securities that are issued at a discount below their stated
principal amount, bearing no interest or interest at a rate that at the time of
issuance is below market rates ("Original Issue Discount Debt Securities"), and
(e) variable rate Debt Securities that are exchangeable for fixed rate Debt
Securities.
Payments of interest on Registered Securities may be made at the option of
EDS by check mailed to the registered holders thereof or, if so provided in the
applicable Prospectus Supplement, at the option of a holder by wire transfer to
an account designated by such holder. Except as otherwise provided in the
applicable Prospectus Supplement, no payment on a Bearer Security will be made
by mail to an address in the United States or by wire transfer to an account in
the United States.
Unless otherwise provided in the applicable Prospectus Supplement,
Registered Securities may be transferred or exchanged at the office of the
Trustee at which its corporate trust business is principally administered in the
United States or at the office of the Trustee or the Trustee's agent in the
Borough of Manhattan, the City and State of New York, at which its corporate
agency business is conducted, subject to the limitations provided in the
Indenture, without the payment of any service charge, other than any tax or
governmental charge payable in connection therewith. Bearer Securities will be
transferable only by delivery. Provisions with respect to the exchange of Bearer
Securities will be described in the Prospectus Supplement relating to such
Bearer Securities.
All funds paid by EDS to a payment agent for the payment of principal,
premium, or interest with respect to any Debt Securities that remain
unclaimed at the end of two years after such principal, premium, or
interest shall
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have become due and payable will be repaid to EDS, and the holders of such Debt
Securities or any coupons appertaining thereto will thereafter look only to EDS
for payment thereof.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities. A Global Security is a Debt Security that
represents, and is denominated in an amount equal to the aggregate principal
amount of, all outstanding Debt Securities of a series, or any portion thereof,
in either case having the same terms, including the same original issue date,
date or dates on which principal and interest are due, and interest rate or
method of determining interest. A Global Security will be deposited with, or on
behalf of, a Depositary, which will be identified in the Prospectus Supplement
relating to such Debt Securities. Global Securities may be issued in either
registered or bearer form and in either temporary or definitive form. Unless and
until it is exchanged in whole or in part for the individual Debt Securities
represented thereby, a Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary, by a nominee of the Depositary
to the Depositary or another nominee of the Depositary, or by the Depositary or
any nominee of the Depositary to a successor Depositary or any nominee of such
successor.
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such Debt Securities. EDS anticipates that the following provisions will
generally apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the individual Debt Securities represented by
such Global Security to the accounts of persons that have accounts with the
Depositary ("participants"). Such accounts shall be designated by the dealers or
underwriters with respect to such Debt Securities or, if such Debt Securities
are offered and sold directly by EDS or through one or more agents, by EDS or
such agents. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that hold beneficial interests through
participants. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary (with respect to interests of participants)
or records maintained by participants (with respect to interest of persons other
than participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limitations and laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner or holder of such Global Security, such Depositary or nominee,
as the case may be, will be considered the sole owner or holder of the
individual Debt Securities represented by such Global Security for all purposes
under the Indenture. Except as provided below, owners of beneficial interests in
a Global Security will not be entitled to have any of the individual Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any of such Debt
Securities in definitive form, and will not be considered the owners or holders
thereof under the Indenture.
Subject to the restrictions described under "-- Limitations on Issuance of
Bearer Securities," payments of principal, premium, and interest with respect to
individual Debt Securities represented by a Global Security will be made to the
Depositary or its nominee, as the case may be, as the registered owner or holder
of such Global Security. Neither EDS, the Trustee, any paying agent or registrar
for such Debt Securities, or any agent of EDS or the Trustee will have any
responsibility or liability for (a) any aspect of the records relating to or
payments made by the Depositary, its nominee, or any participants on account of
beneficial interests in the Global Security or for maintaining, supervising, or
reviewing any records relating to such beneficial interests, (b) the payment to
the owners of beneficial interests in the Global Security of amounts paid to the
Depositary or its nominee, or (c) any other matter relating to the actions and
practices of the Depositary, its nominee, or its participants. Neither EDS, the
Trustee, any paying agent or registrar for such Debt Securities, or any agent of
EDS or the Trustee will be liable for any delay by the Depositary, its nominee,
or any of its participants in identifying the owners of beneficial interests
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in the Global Security, and EDS and the Trustee may conclusively rely on, and
will be protected in relying on, instructions from the Depositary or its
nominee for all purposes.
EDS expects that the Depositary for a series of Debt Securities or its
nominee, upon receipt of any payment of principal, premium, or interest with
respect to a definitive Global Security representing any of such Debt
Securities, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security, as shown on the records of the Depositary or its
nominee. EDS also expects that payments by participants to owners of beneficial
interests in such Global Security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers and registered in "street
name." Such payments will be the responsibility of such participants. Receipt by
owners of beneficial interests in a temporary Global Security of payments of
principal, premium, or interest with respect thereto will be subject to the
restrictions described under "-- Limitations on Issuance of Bearer Securities."
If the Depositary for a series of Debt Securities is at any time unwilling,
unable, or ineligible to continue as depositary, EDS shall appoint a successor
depositary. If a successor depositary is not appointed by EDS within 90 days,
EDS will issue individual Debt Securities of such series in exchange for the
Global Security representing such series of Debt Securities. In addition, EDS
may at any time and in its sole discretion, subject to any limitations described
in the Prospectus Supplement relating to such Debt Securities, determine no
longer to have Debt Securities of a series represented by a Global Security and,
in such event, will issue individual Debt Securities of such series in exchange
for the Global Security representing such series of Debt Securities.
Furthermore, if EDS so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to EDS, the Trustee, and the
Depositary for such Global Security, receive individual Debt Securities of such
series in exchange for such beneficial interests, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities. In any
such instance, an owner of a beneficial interest in a Global Security will be
entitled to physical delivery of individual Debt Securities of the series
represented by such Global Security equal in principal amount to such beneficial
interest and to have such Debt Securities registered in its name (if the Debt
Securities are issuable as Registered Securities). Individual Debt Securities of
such series so issued will be issued (a) as Registered Securities in
denominations, unless otherwise specified by EDS, of $1,000 and integral
multiples thereof if the Debt Securities are issuable as Registered Securities,
(b) as Bearer Securities in the denomination or denominations specified by EDS
if the Debt Securities are issuable as Bearer Securities, or (c) as either
Registered Securities or Bearer Securities as described above if the Debt
Securities are issuable in either form. See, however, "-- Limitations on
Issuance of Bearer Securities" for a description of certain restrictions on the
issuance of individual Bearer Securities in exchange for beneficial interests in
a bearer Global Security.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
The Debt Securities of a series may be issued as Registered Securities
(which will be registered as to principal and interest in the register
maintained by the registrar for such Debt Securities) or Bearer Securities
(which will be transferable only by delivery). If such Debt Securities are
issuable as Bearer Securities, certain special limitations and considerations
will apply.
In compliance with United States federal income tax laws and regulations,
EDS and any underwriter, agent or dealer participating in an offering of Bearer
Securities will agree that, in connection with the original issuance of such
Bearer Securities and during the period ending 40 days after the issue date,
they will not offer, sell, or deliver any such Bearer Security, directly or
indirectly, to a United States Person (as defined below) or to any person within
the United States, except to the extent permitted under United States Treasury
regulations.
Bearer Securities will bear a legend to the following effect: "Any United
States Person who holds this obligation will be subject to limitations under the
United States federal income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code." The sections referred
to in the legend provide that, with certain exceptions, a United States taxpayer
who holds Bearer Securities will not be allowed to
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deduct any loss with respect to, and will not be eligible for capital gain
treatment with respect to any gain realized on the sale, exchange, redemption,
or other disposition of, such Bearer Securities.
For this purpose, "United States" includes the United States of America and
its possessions, and "United States Person" means a citizen or resident of the
United States, a corporation, partnership, or other entity created or organized
in or under the laws of the United States, or an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source.
Pending the availability of a definitive Global Security or individual
Bearer Securities, as the case may be, Debt Securities that are issuable as
Bearer Securities may initially be represented by a single temporary Global
Security, without interest coupons, to be deposited with a common depositary in
London for Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System ("Euroclear"), or Centrale de Livraison de
Valeurs Mobilieres S.A. ("CEDEL") for credit to the accounts designated by or on
behalf of the purchasers thereof. Following the availability of a definitive
Global Security in bearer form, without coupons attached, or individual Bearer
Securities and subject to any further limitations described in the applicable
Prospectus Supplement, the temporary Global Security will be exchangeable for
interests in such definitive Global Security or for such individual Bearer
Securities, respectively, only upon receipt of a "Certificate of Non-U.S.
Beneficial Ownership," which is a certificate to the effect that a beneficial
interest in a temporary Global Security is owned by a person that is not a
United States Person or is owned by or through a financial institution in
compliance with applicable United States Treasury regulations. No Bearer
Security will be delivered in or to the United States and no interest on a
Bearer Security will be paid within the United States. If so specified in the
applicable Prospectus Supplement, interest on a temporary Global Security will
be paid to each of Euroclear and CEDEL with respect to that portion of such
temporary Global Security held for its account, but only upon receipt as of the
relevant interest payment date of a Certificate of Non-U.S. Beneficial
Ownership.
EVENTS OF DEFAULT AND REMEDIES
The following events are defined in the Indenture as "Events of
Default" with respect to a series of Debt Securities:
(a) Default in the payment of any installment of interest on any
Debt Securities of that series or any payment with respect to the
related coupons, if any, as and when the same shall become due and
payable and continuance of such default for a period of 30 days;
(b) Default in the payment of principal or premium with respect
to any Debt Securities of that series as and when the same shall
become due and payable, whether at maturity, upon redemption, by
declaration, upon required repurchase, or otherwise;
(c) Default in the payment of any sinking fund payment with
respect to any Debt Securities of that series as and when the same
shall become due and payable;
(d) Default in the performance, or breach, of any covenant of EDS
in the Indenture (other than a covenant or a default in whose
performance or whose breach is otherwise specifically dealt with or
which has expressly been included in the Indenture solely for the
benefit of a series of Debt Securities other than that series) and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, written notice
specifying such default and requiring EDS to remedy the same to EDS by
the Trustee or to EDS and the Trustee by the holders of at least 25%
in aggregate principal amount of the Debt Securities of that series at
the time outstanding;
(e) Acceleration of any indebtedness of EDS in excess of
$50,000,000 under the terms of the instrument under which that
indebtedness is or may be outstanding, if the acceleration is not
annulled or the indebtedness is not paid within 10 days after written
notice to EDS by the Trustee or by the holders of at least 25% in
aggregate principal of the Debt Securities of that series at the time
outstanding;
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(f) EDS shall (1) voluntarily commence any proceeding or file any
petition seeking relief under the United States Bankruptcy Code or
other federal or state bankruptcy, insolvency, or similar law, (2)
consent to the institution of, or fail to controvert within the time
and in the manner prescribed by law, any such proceeding or the filing
of any such petition, (3) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, or similar official for
EDS or for a substantial part of its property, (4) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (5) make a general assignment for the benefit of
creditors, (6) admit in writing its inability or fail generally to pay
its debts as they become due, (7) take corporate action for the
purpose of effecting any of the foregoing, or (8) take any comparable
action under any foreign laws relating to insolvency;
(g) The entry of an order or decree by a court having competent
jurisdiction for (1) relief with respect to EDS or a substantial part
of any of its property under the United States Bankruptcy Code or any
other federal or state bankruptcy, insolvency, or similar law, (2) the
appointment of a receiver, trustee, custodian, sequestrator, or
similar official for EDS or for a substantial part of any of its
property, or (3) the winding-up or liquidation of EDS, and such order
or decree shall continue unstayed and in effect for 60 consecutive
days, or any similar relief is granted under any foreign laws and the
order or decree stayed in effect for 60 consecutive days; and
(h) Any other Event of Default provided with respect to Debt
Securities of that series.
An Event of Default with respect to one series of Debt Securities is not
necessarily an Event of Default for another series.
If an Event of Default described in clause (a), (b), (c), (d), (e) or (h)
above occurs and is continuing with respect to any series of Debt Securities,
unless the principal and interest with respect to all the Debt Securities of
such series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding may declare the principal amount (or,
if Original Issue Discount Debt Securities, such portion of the principal amount
as may be specified in such series) of and interest on all the Debt Securities
of such series due and payable immediately. If an Event of Default described in
clause (f) or (g) above occurs, unless the principal and interest with respect
to all the Debt Securities of all series shall have become due and payable, the
principal amount (or, if any series are Original Issue Discount Debt Securities,
such portion of the principal amount as may be specified in such series) of and
interest on all Debt Securities of all series then outstanding shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any holder of Debt Securities.
If an Event of Default occurs and is continuing, the Trustee shall be
entitled and empowered to institute any action or proceeding for the collection
of the sums so due and unpaid or to enforce the performance of any provision of
the Debt Securities of the affected series or the Indenture, to prosecute any
such action or proceeding to judgment or final decree, and to enforce any such
judgment or final decree against EDS or any other obligor on the Debt Securities
of such series. In addition, if there shall be pending proceedings for the
bankruptcy or reorganization of EDS, or if a receiver, trustee, or similar
official shall have been appointed for its property, the Trustee shall be
entitled and empowered to file and prove a claim for the whole amount of
principal, premium, and interest (or, in the case of Original Issue Discount
Debt Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid with respect to the Debt Securities. No
holder of any Debt Security or coupon of any series shall have any right to
institute any action or proceeding upon or under or with respect to the
Indenture, for the appointment of a receiver or trustee, or for any other
remedy, unless (a) such holder previously shall have given to the Trustee
written notice of an Event of Default with respect to Debt Securities of that
series and of the continuance thereof, (b) the holders of not less than 25% in
aggregate principal amount of the outstanding Debt Securities of that series
shall have made written request to the Trustee to institute such action or
proceeding with respect to such Event of Default and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses,
and liabilities to be incurred therein or thereby, and (c) the Trustee, for 60
days after its receipt of such notice, request, and offer of indemnity shall
have failed to institute such action or
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proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to the provisions of the Indenture.
Prior to the acceleration of the maturity of the Debt Securities of any
series, the holders of a majority in aggregate principal amount of the Debt
Securities of that series at the time outstanding may, on behalf of the holders
of all Debt Securities and any related coupons of that series, waive any past
default or Event of Default and its consequences for that series, except (a) a
default in the payment of the principal, premium, or interest with respect to
such Debt Securities or (b) a default with respect to a provision of the
Indenture that cannot be amended without the consent of each holder affected
thereby. In case of any such waiver, such default shall cease to exist, any
Event of Default arising therefrom shall be deemed to have been cured for all
purposes, and EDS, the Trustee, and the holders of the Debt Securities of that
series shall be restored to their former positions and rights under the
Indenture.
The Trustee shall, within 90 days after the occurrence of a default known
to it with respect to a series of Debt Securities, give to the holders of the
Debt Securities of such series notice of all uncured defaults with respect to
such series known to it, unless such defaults shall have been cured or waived
before the giving of such notice; provided, however, that except in the case of
default in the payment of principal, premium, or interest with respect to the
Debt Securities of such series or in the making of any sinking fund payment with
respect to the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if it in good faith determines that the withholding of
such notice is in the interest of the holders of such Debt Securities.
CERTAIN COVENANTS
EDS has agreed to certain restrictions in connection with the issuance of
the Debt Securities. The covenants of EDS contained in the Indenture will not
necessarily afford holders of the Debt Securities protection in the event of a
highly leveraged transaction involving EDS, such as a leveraged buyout, or a
change of control of EDS.
Certain Definitions
"Attributable Debt" means, as to any sale and leaseback transaction, at any
date as of which the amount thereof is to be determined, the total amount
determined by multiplying (i) the greater of (a) the fair value of the Real
Property subject to the arrangement (as determined by EDS) or (b) the net
proceeds of the sale of the Real Property to the lender or investor by (ii) a
fraction, the numerator of which is the number of months in the unexpired
initial term of the lease of the Real Property and the denominator of which is
the number of months in the full initial term of such lease. Sale and leaseback
transactions with respect to Real Property financed by obligations issued by a
state or local governmental unit (whether or not tax exempt) will not be
included in any calculation of Attributable Debt.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
(a) all current liabilities (excluding any current liabilities for money
borrowed having a maturity of less than 12 months but by its terms being
renewable or extendible beyond 12 months from such date at the option of the
borrower) and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the
most recent balance sheet of EDS and its consolidated subsidiaries and computed
in accordance with generally accepted accounting principles.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Real Property" means any real property, and any building, structure or
other facility thereon, located in the United States (excluding its territories
and possessions, but including Puerto Rico), that EDS or any Subsidiary owns or
leases and that has a gross book value (without deduction of any depreciation
reserves) on the date as of which the determination is being made in excess of
1% of Consolidated Net Tangible Assets. The definition excludes any such real
property and any building, structure or other facility or portion thereof
thereon (i) which comprises EDS' former and current corporate headquarters in
Dallas and Plano, Texas, respectively; (ii) that is financed by obligations
issued by a state or local governmental unit (whether or not tax exempt); and
(iii) which if not owned or leased by EDS or any
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Subsidiary, in the opinion of the board of directors of EDS, would not have a
material adverse effect on the business conducted by EDS and its Subsidiaries as
an entirety.
"Restricted Subsidiary" means any Subsidiary (except a Subsidiary engaged
principally in financing the operations of EDS or its Subsidiaries, or both,
outside the United States) that owns a Real Property and either (i) has more
than 50% of its net sales and operating revenues during the preceding four
calendar quarters derived from, or more than 50% of its operating properties
located in, the United States (excluding its territories and possessions, but
including Puerto Rico), or (ii) has more than 50% of its assets consisting of
securities of other Restricted Subsidiaries.
"Subsidiary" means a corporation, association, partnership or other entity
of which EDS or one or more Subsidiaries of EDS own, directly or indirectly, 80%
or more of the outstanding voting interest.
Restrictions on Secured Debt.
EDS will not itself or permit any Restricted Subsidiary to incur, issue,
assume or guarantee any Debt secured by pledge of, or mortgage or other lien on,
any Real Property or on any shares of stock or Debt of any Restricted Subsidiary
(such pledges, mortgages and other liens being hereinafter called "Mortgage" or
"Mortgages"), without providing that the Debt Securities shall be secured
equally and ratably with (or prior to) such secured Debt.
This obligation will not apply if, after giving effect to the secured Debt,
the aggregate amount of all such Debt so secured together with all Attributable
Debt of EDS and its Restricted Subsidiaries in respect of sale and leaseback
transactions (other than sale and leaseback transactions in which the net
proceeds of the Real Property is applied to retire Debt Securities or certain
other Debt) involving Real Properties would not exceed 10% of EDS' Consolidated
Net Tangible Assets.
This obligation will not apply to, and there will be excluded in computing
secured Debt for the purpose of the restriction, Debt secured by (i) Mortgages
existing on the date the Indenture is signed, (ii) Mortgages on property, stock,
or Debt of any corporation, partnership, association or other entity existing at
the time that corporation, partnership, association or other entity becomes a
Restricted Subsidiary or obligor under the Indenture, (iii) Mortgages in favor
of EDS or a Restricted Subsidiary by a Restricted Subsidiary, (iv) Mortgages in
favor of the United States of America or any state thereof, or any agency,
department or other instrumentality thereof, to secure progress, advance or
other payments pursuant to any contract or provision of any statute, (v)
Mortgages on property, stock or Debt existing at the time of acquisition thereof
(including acquisition through merger or consolidation) or to secure the payment
of all or any part of the purchase price, construction cost or development cost
created or assumed within 360 days after such acquisition or completion of
construction or development, and (vi) any extension, renewal or refinancing (or
successive extensions, renewals or refinancings), as a whole or in part, of any
of the foregoing; provided, however, that (a) such extension, renewal or
refinancing Mortgage will be limited to all or a part of the same property,
shares of stock or Debt that secured the Mortgage extended, renewed or
refinanced (plus improvements on such property) and (b) the principal amount of
Debt secured by such Mortgage is not increased in an amount exceeding 105%
thereof.
Restrictions on Sales and Leasebacks.
Neither EDS nor any Restricted Subsidiary may enter into any sale and
leaseback transaction involving any Real Property, completion of construction
and commencement of full operation of which has occurred more than 360 days
previously, unless either (i) EDS or the Restricted Subsidiary could create Debt
secured by a Mortgage on the Real Property under the restrictions described
under "--Restrictions on Secured Debt" above in an amount equal to the
Attributable Debt with respect to the sale and leaseback transaction without
equally and ratably securing the Notes or (ii) EDS or the Restricted Subsidiary,
within 120 days, applies to the retirement of the Debt Securities or other Debt
of EDS or any of its Restricted Subsidiaries maturing more than one year after
the sale or transfer of an amount equal to the net proceeds of the sale of the
Real Property sold and leased pursuant to that arrangement. This restriction
will not apply to any sale leaseback transaction between EDS and a Restricted
Subsidiary or between Restricted Subsidiaries or involving the taking back of a
lease for a period of three years or less.
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CONSOLIDATION, MERGER, AND SALE OF ASSETS
EDS may not consolidate with, or sell or convey all or substantially all of
its assets to, or merge with or into any other person unless the following
conditions have been satisfied: (a) either (1) EDS shall be the continuing
person in the case of a merger or (2) the resulting, surviving, or transferee
person, if other than EDS (the "Successor Company"), shall be a corporation
organized and existing under the laws of the United States, any State, or the
District of Columbia and shall expressly assume all of the obligations of EDS
under the Debt Securities and coupons and the Indenture; (b) immediately after
giving effect to such transaction, no Default or Event of Default would occur or
be continuing; (c) the Successor Company waives any right to redeem any Bearer
Security under circumstances in which the Successor Company would be entitled to
redeem such Bearer Security but EDS would not have been so entitled to redeem if
the consolidation, merger, conveyance, transfer, or lease had not occurred; and
(d) EDS shall have delivered to the Trustee an officers' certificate and an
opinion of counsel, each stating that such consolidation, merger, or sale
complies with the Indenture.
MODIFICATION OF THE INDENTURE
EDS and the Trustee may enter into supplemental indentures without the
consent of the holders of Debt Securities for one or more of the following
purposes:
(a) To evidence the succession of another person to EDS pursuant
to the provisions of the Indenture relating to consolidations, mergers, and
sales of assets and the assumption by such successor of the covenants,
agreements, and obligations of EDS in the Indenture and in the Debt
Securities;
(b) To surrender any right or power conferred upon EDS by the
Indenture, to add to the covenants of EDS further covenants, restrictions,
conditions, or provisions for the protection of the holders of all or any
series of Debt Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants,
restrictions, conditions, or provisions a default or an Event of Default
under the Indenture (provided, however, that with respect to any such
additional covenant, restriction, condition, or provision, such
supplemental indenture may provide for a period of grace after default,
which may be shorter or longer than that allowed in the case of other
defaults, may provide for an immediate enforcement upon such default, or
may limit the right of holders of a majority in aggregate principal amount
of any or all series of Debt Securities to waive such default);
(c) To cure any ambiguity or to correct or supplement any
provision contained in the Indenture, in any supplemental indenture, or in
any Debt Securities that may be defective or inconsistent with any other
provision contained therein, to convey, transfer, assign, mortgage, or
pledge any property to or with the Trustee, or to make such other
provisions in regard to matters or questions arising under the Indenture,
provided that any such action shall not adversely affect the interests of
any holders of Debt Securities of any series;
(d) To modify or amend the Indenture in such a manner as to
permit the qualification of the Indenture or any supplemental indenture
under the Trust Indenture Act as then in effect;
(e) To add to or change any of the provisions of the Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal or premium
with respect to Registered Securities or of principal, premium, or interest
with respect to Bearer Securities, or to permit Registered Securities to be
exchanged for Bearer Securities, so long as any such action does not
adversely affect the interests of the holders of Debt Securities or any
coupons of any series in any material respect or permit or facilitate the
issuance of Debt Securities of any series in uncertificated form;
(f) To comply with the provisions of the Indenture relating to
consolidations, mergers, and sales of assets;
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(g) To add guarantees with respect to the Debt Securities or to
secure the Debt Securities;
(h) To make any change that does not adversely affect the rights
of any holder;
(i) To add to, change, or eliminate any of the provisions of the
Indenture with respect to one or more series of Debt Securities, so long as
any such addition, change, or elimination not otherwise permitted under the
Indenture shall (1) neither apply to any Debt Security of any series
created prior to the execution of such supplemental indenture and entitled
to the benefit of such provision nor modify the rights of the holders of
any such Debt Security with respect to such provision or (2) become
effective only when there is no such Debt Security outstanding;
(j) To evidence and provide for the acceptance of appointment by
a successor or separate Trustee with respect to the Debt Securities of one
or more series and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the
administration of the Indenture by more than one Trustee; and
(k) To establish the form or terms of Debt Securities and coupons
of any series, as described under "Description of Debt Securities--
General."
With the consent of the holders of a majority in aggregate principal amount
of the outstanding Debt Securities of each series affected thereby, EDS and the
Trustee may from time to time and at any time enter into a supplemental
indenture for the purpose of adding any provisions to, changing in any manner,
or eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the holder of the Debt
Securities of such series; provided, however, that without the consent of the
holders of each Debt Security so affected, no such supplemental indenture shall
(a) reduce the percentage in principal amount of Debt Securities of any series
whose holders must consent to an amendment, (b) reduce the rate of or extend the
time for payment of interest on any Debt Security or coupon or reduce the amount
of any payment to be made with respect to any coupon, (c) reduce the principal
of or change the stated maturity of principal of, or any installment of
principal of or interest on, any Debt Security or reduce the amount of principal
of any Original Issue Discount Security that would be due and payable upon
declaration of acceleration of maturity, (d) reduce the premium payable upon the
redemption of any Debt Security or change the time at which any Debt Security
may or shall be redeemed, (e) make any Debt Security payable in a currency other
than that stated in the Debt Security, (f) release any security that may have
been granted with respect to the Debt Securities, (g) make any change in the
provisions of the Indenture relating to waivers of defaults or amendments that
require unanimous consent, (h) change any obligation of EDS provided for in the
Indenture to pay additional interest with respect to Bearer Securities, (i)
limit the obligation of EDS to maintain a paying agency outside the United
States for payment on Bearer Securities or limit the obligation of EDS to redeem
certain Bearer Securities, (j) change any place of payment where any Debt
Security or any premium or interest thereon is payable; (k) impair the right to
institute suit for the enforcement of any payment on or after the stated
maturity of any Debt Security (or in the case of redemption, on or after the
date fixed for redemption); or (l) modify any of the provisions of this section
of the Indenture, 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.
SATISFACTION AND DISCHARGE OF THE INDENTURE; DEFEASANCE
The Indenture shall generally cease to be of any further effect with
respect to a series of Debt Securities if (a) EDS has delivered to the Trustee
for cancellation all Debt Securities of such series (with certain limited
exceptions) or (b) all Debt Securities and coupons of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable and EDS shall have deposited with the Trustee as trust funds the entire
amount sufficient to pay at maturity or upon redemption all such Debt Securities
and coupons (and if, in either case, EDS shall also pay or cause to be paid all
other sums payable under the Indenture by it).
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In addition, EDS shall have a "legal defeasance option" (pursuant to
which it may terminate, with respect to the Debt Securities of a particular
series, all of its obligations under such Debt Securities and the Indenture with
respect to such Debt Securities) and a "covenant defeasance option" (pursuant to
which it may terminate, with respect to the Debt Securities of a particular
series, its obligations with respect such Debt Securities under certain
specified covenants contained in the Indenture). If EDS exercises its legal
defeasance option with respect to a series of Debt Securities, payment of such
Debt Securities may not be accelerated because of an Event of Default. If EDS
exercises its covenant defeasance potion with respect to a series of Debt
Securities, payment of such Debt Securities may not be accelerated because of an
Event of Default related to the specified covenants.
EDS may exercise its legal defeasance option or its covenant defeasance
option with respect to the Debt Securities of a series only if (a) EDS
irrevocably deposits in trust with the Trustee cash or U.S. Government
Obligations (as defined in the Indenture) for the payment of principal, premium,
and interest with respect to such Debt Securities to maturity or redemption, as
the case may be, (b) EDS delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that the
payments of principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay the principal, premium, and interest when due with respect to
all the Debt Securities of such series to maturity or redemption, as the case
may be, (c) 123 days pass after the deposit is made and during the 123-day
period no default described in clause (f) or (g) under "Events of Default and
Remedies" above occurs that is continuing at the end of such period, (d) no
Default has occurred and is continuing on the date of such deposit and after
giving effect thereto, (e) the deposit does not constitute a default under any
other agreement binding on EDS, (f) EDS delivers to the Trustee an opinion of
counsel to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940, (g) EDS shall have delivered to the Trustee an
opinion of counsel addressing certain federal income tax matters relating to the
defeasance, and (h) EDS delivers to the Trustee an officers' certificate and an
opinion of counsel, each stating that all conditions precedent to the defeasance
and discharge of the Debt Securities of such series as contemplated by the
Indenture have been complied with. The Trustee shall hold in trust cash or U.S.
Government Obligations deposited with it as described above and shall apply the
deposited cash and the proceeds from deposited U.S. Government Obligations to
the payment of principal, premium, and interest with respect to the Debt
Securities and coupons of the defeased series.
THE TRUSTEE
Texas Commerce Bank National Association is the Trustee under the
Indenture. The Trustee is also the trustee under a prior indenture between EDS
and Texas Commerce Bank National Association and acts as a depository for funds
of, performs certain other services for, and transacts other banking business
with EDS and certain of its subsidiaries in the normal course of its business.
Chase Manhattan Bank, an affiliate of the Trustee, acts as a depository for
funds of, performs certain other services for, and transacts other banking
business with EDS and certain of its subsidiaries in the normal course of
business. Chase Manhattan Bank is a participating lender under EDS' current
credit facility.
EDS may appoint a separate Trustee for any series of Debt Securities.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by the laws of
the State of New York.
15
<PAGE>
PLAN OF DISTRIBUTION
EDS may sell Debt Securities in or outside the United States of America
through underwriters, dealers or agents or directly to one or more purchasers.
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, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from EDS or from purchasers of Debt Securities for whom they may
act as agents in the form of discounts, concessions or commissions. Underwriters
may sell Debt Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
Debt Securities may be deemed to be underwrites, and any discounts or
commissions received by them from EDS 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 or agent will be identified, and
any such compensation received from EDS will be described in the applicable
Prospectus Supplement. In the event EDS sells directly to one or more
purchasers, EDS' employees will not receive additional compensation in
connection with their participation in such sales, and, accordingly, EDS will
not register any employees as broker/dealers in reliance upon Rule 3a4-1 as
promulgated under the Exchange Act.
Under agreements which may be entered into by EDS, underwriters, dealers
and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by EDS against certain liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which the underwriters, dealers or agents may be required to make in
respect thereof.
The Debt Securities may or may not be listed on a national securities
exchange. No assurance can be given that there will be a market for the
Debt Securities.
LEGAL MATTERS
Certain matters with respect to the validity of the Debt Securities offered
hereby will be passed upon for EDS by D. Gilbert Friedlander, Senior Vice
President, General Counsel and Secretary of EDS, and for any underwriters,
dealers or agents by a firm named in the Prospectus Supplement relating to a
particular issue of Debt Securities. Mr. Friedlander is the beneficial owner of
shares of Common Stock of EDS.
EXPERTS
The consolidated financial statements and financial statement schedule of
EDS as of December 31, 1995 and 1994, and for each of the years in the three-
year period ended December 31, 1995, which are incorporated in this Prospectus
by reference to EDS' Current Report on Form 8-K dated April 23, 1996, have been
audited by KPMG Peat Marwick LLP, independent auditors, as stated in their
reports appearing therein and have been so incorporated by reference in reliance
upon such reports given upon the authority of that firm as experts in accounting
and auditing.
16
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. *
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee.. $ 689,655
Printing and engraving expenses...................... 80,000
Accounting fees and expenses......................... 30,000
Trustee Fees......................................... 40,000
Fees of rating agencies............................. 260,000
Blue Sky fees and expenses........................... 15,000
Miscellaneous........................................ 10,000
----------
Total $1,124,655
----------
</TABLE>
Estimated, except for the Securities and Exchange Commission
registration fee
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware General Corporation Law
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
Section 145(c) of the DGCL provides that 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 Section
145(a) and (b), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 145(d) of the DGCL provides that any indemnification under Section
145(a) and (b) (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Section 145(a) and
(b). Such determination shall be made (1) by a majority vote of the directors
who were not parties to such action, suit or proceeding, even though less than a
quorum, or (2) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (3) by the stockholders.
II-1
<PAGE>
Section 145(e) of the DGCL provides that expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in Section 145. Such
expenses (including attorneys' fees) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
Section 145(f) of the DGCL provides that the indemnification and
advancement of expenses provided by, or granted pursuant to, Section 145 shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 145(g) of the DGCL provides that a corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his capacity as such, whether or not the corporation
would have the power to indemnify him against such liability under Section 145.
RESTATED CERTIFICATE OF INCORPORATION
Article Seventh of the Restated Certificate of Incorporation of EDS
provides that no director of EDS shall be personally liable to EDS or any of its
stockholders for monetary damages for breach of fiduciary duty as a director
involving any act or omission of any such director; provided, however, that such
Article Seventh does not eliminate or limit the liability of a director (1) for
any breach of such director's duty of loyalty to EDS or its stockholders, (2)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) under Section 174 of the DGCL (which relates
to certain unlawful dividend payments or stock purchases or redemptions), as the
same exists or may hereafter be amended, supplemented or replaced, or (4) for a
transaction from which the director derived an improper personal benefit. If the
DGCL is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of EDS, in addition to
the limitation on personal liability described above, shall be limited to the
fullest extent permitted by the DGCL, as so amended. Furthermore, any repeal or
modification of Article Seventh of the Restated Certificate of Incorporation by
the stockholders of EDS shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of EDS existing at
the time of such repeal or modification.
BYLAWS
Article VI of the Amended and Restated Bylaws of EDS provides that each
person who at any time shall serve or shall have served as a director, officer,
employee or agent of EDS, or any person who, while a director, officer, employee
or agent of EDS, is or was serving at the written request of EDS (in accordance
with written procedures adopted from time to time by the Board of Directors of
EDS) as a director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan or
other enterprise, shall be entitled to (a) indemnification and (b) the
advancement of expenses incurred by such person from EDS as, and to the fullest
extent, permitted by Section 145 of the DGCL or any successor statutory
provision, as from time to time amended.
INDEMNIFICATION AGREEMENTS
EDS has entered into Indemnification Agreements (the "Indemnification
Agreements") with its directors and certain of its officers (the "Indemnitees").
Under the terms of the Indemnification Agreements, EDS has generally agreed to
indemnify, and advance expenses to, each Indemnitee to the fullest extent
permitted by applicable law on the date of such agreements and to such greater
extent as applicable law may thereafter permit. In addition, the Indemnification
Agreements contain specific provisions pursuant to which EDS has agreed to
indemnify each Indemnitee (i) if such person is, by reason of his or her status
as a director, nominee for director, officer, agent or fiduciary of EDS or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise with which such person was serving at the request of EDS
(any such status being hereinafter referred to as a "Corporate Status"), made or
threatened to be made a party to any threatened, pending or completed action,
suit, arbitration, alternative dispute resolution mechanism, investigation or
other proceeding (each, a "Proceeding"), other than a Proceeding by or in the
right of EDS, (ii) if such person is, by reason of his or her
II-2
<PAGE>
Corporate Status, made or threatened to be made a party to any Proceeding
brought by or in the right of EDS to procure a judgment in its favor, except
that no indemnification shall be made in respect of any claim, issue or matter
in such Proceeding as to which such Indemnitee shall have been adjudged to be
liable to EDS if applicable law prohibits such indemnification (unless and only
to the extent that a court shall otherwise determine), (iii) against expenses
actually and reasonably incurred by such person or on his or her behalf in
connection with any Proceeding to which such Indemnitee was or is a party by
reason of his or her Corporate Status and in which such Indemnitee is
successful, on the merits or otherwise, (iv) against expenses actually and
reasonably incurred by such person or on his or her behalf in connection with a
Proceeding to the extent that such Indemnitee is, by reason of his or her
Corporate Status, a witness or otherwise participates in any Proceeding at a
time when such person is not a party in the Proceeding and (v) against expenses
actually and reasonably incurred by such person in any judicial adjudication of
or any award in arbitration to enforce his or her rights under the
Indemnification Agreements.
Furthermore, under the terms of the Indemnification Agreements, EDS has agreed
to pay all reasonable expenses incurred by or on behalf of an Indemnitee in
connection with any Proceeding, whether brought by or in the right of EDS or
otherwise, in advance of any determination with respect to entitlement to
indemnification and within 15 days after the receipt by EDS of a written request
from such Indemnitee for such payment. In the Indemnification Agreements, each
Indemnitee has agreed that he or she will reimburse and repay EDS for any
expenses so advanced to the extent that it shall ultimately be determined that
he or she is not entitled to be indemnified by EDS against such expenses.
The Indemnification Agreements also include provisions that specify the
procedures and presumptions which are to be employed to determine whether an
Indemnitee is entitled to indemnification thereunder. In some cases, the nature
of the procedures specified in the Indemnification Agreements varies depending
on whether there has occurred a "Change in Control" (as defined in the
Indemnification Agreements) of EDS.
INSURANCE
EDS has obtained and intends to maintain in effect directors' and officers'
liability insurance policies providing customary coverage for its directors and
officers against losses resulting from wrongful acts committed by them in their
capacities as directors and officers of EDS.
The above discussion of EDS' Bylaws and Restated Certificate of
Incorporation, the Indemnification Agreements and Section 145 of the DGCL is not
intended to be exhaustive and is respectively qualified in its entirety by such
documents and statute.
II-3
<PAGE>
ITEM 16. EXHIBITS.
The following documents are exhibits to the Registration Statement.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
1 Form of Underwriting Agreement
4 Indenture dated as of August 12, 1996 between Electronic Data
Systems Corporation and Texas Commerce Bank National
Association.
5 Opinion of D. Gilbert Friedlander
12 Computation of Ratio of Earnings to Fixed Charges.
23(a) Consent of KPMG Peat Marwick LLP, independent auditors.
23(b) Consent of D. Gilbert Friedlander (included in Exhibit 5 to
this Registration Statement).
24 Powers of Attorney (included in the Signature Page to this
Registration Statement).
25 Form T-1 Statement of Eligibility and Qualification under Trust
Indenture Act of 1939 of Texas Commerce Bank National
Association.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
3. To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
4. That, for purposes of determining 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
II-4
<PAGE>
1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
5. For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
6. 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.
7. To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act (the "Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Act.
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 Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
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 Plano, State of Texas, on the
13th day of August, 1996.
Electronic Data Systems Corporation
By: /s/ LESTER M. ALBERTHAL, JR.
---------------------------- -
Lester M. Alberthal, Jr.
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Lester M. Alberthal, Jr.,
Gary J. Fernandes, Joseph M. Grant and Jeffrey M. Heller, and each of them,
his or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any or all amendments
(including pre- or 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, and hereby grants to such attorneys-in-fact and agents and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or
his or their 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 on August
13, 1996 in the capacities indicated.
SIGNATURE TITLE
--------- -----
/s/ LESTERM. ALBERTHAL,JR. Chairman of the Board, Chief Executive
- -------------------------- Officer and Director (Principal Executive
Lester M. Alberthal, Jr. Officer)
/s/ GARY J. FERNANDES Vice Chairman and Director
- ---------------------------
Gary J. Fernandes
/s/ JEFFREY M. HELLER President, Chief Operating Officer and
- --------------------------- Director
Jeffrey M. Heller
/s/ JOSEPH M. GRANT Executive Vice President and Chief Financial
- --------------------------- Officer (Principal Financial Officer)
Joseph M. Grant
/s/ H. PAULETT EBERHART Vice President and Controller (Principal
- --------------------------- Accounting Officer)
H. Paulett Eberhart
II-6
<PAGE>
SIGNATURE TITLE
--------- -----
/s/ JAMES A. BAKER, III Director
- --------------------------
James A. Baker, III
/s/ RICHARD B. CHENEY Director
- --------------------------
Richard B. Cheney
/s/ RAY J. GROVES Director
- --------------------------
Ray J. Groves
/s/ RAY L. HUNT Director
- --------------------------
Ray L. Hunt
/s/ C. ROBERT KIDDER Director
- --------------------------
C. Robert Kidder
/s/ JUDITH RODIN Director
- --------------------------
Judith Rodin
/s/ ENRIQUE J. SOSA Director
- --------------------------
Enrique J. Sosa
II-7
<PAGE>
EXHIBIT 1
ELECTRONIC DATA SYSTEMS CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
, 199
From time to time, Electronic Data Systems Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used
<PAGE>
herein, the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "supplement," "amendment" and "amend" as used herein shall
include all documents deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date of the Basic Prospectus by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than Contract Securities.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
------------------------------
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or
2
<PAGE>
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 1(b) do
not apply (A) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Manager expressly for use
therein or (B) to that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee.
(c) This Agreement has been duly authorized, executed and delivered
by the Company.
(d) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(e) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(f) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting
3
<PAGE>
Agreement, in the case of the Underwriters' Securities, or by institutional
investors in accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of the
Indenture, and will be valid and binding obligations of the Company, in each
case enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(g) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
(h) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(i) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or with
any person or affiliate located in Cuba.
2. DELAYED DELIVERY CONTRACTS. If the Prospectus provides for sales
--------------------------
of Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the
4
<PAGE>
Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
-------- -------
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. TERMS OF PUBLIC OFFERING. The Company is advised by the Manager
------------------------
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the Prospectus.
4. PAYMENT AND DELIVERY. Except as otherwise provided in this
--------------------
Section 4, payment for the Underwriters' Securities shall be made by wire
transfer payable to the order of the Company in Federal (same day) funds at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than one full business day prior
to the date of delivery, with any transfer taxes payable in connection with the
transfer of the Underwriters' Securities to the Underwriters duly paid.
5
<PAGE>
Delivery on the Closing Date of any Underwriters' Securities that are
Debt Securities in bearer form shall be effected by delivery of a single
temporary global Debt Security without coupons (the "Global Debt Security")
evidencing the Offered Securities that are Debt Securities in bearer form to a
common depositary for Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euro-clear System ("Euro-clear"), and for Centrale de
Livraison de Valeurs Mobilieres S.A. ("Cedel") for credit to the respective
accounts at Euro-clear or Cedel of each Underwriter or to such other accounts as
such Underwriter may direct. Any Global Debt Security shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the Company
in the net amount due to the Company for such Global Debt Security, by the
method and in the form set forth in the Underwriting Agreement. The Company
shall cause definitive Debt Securities in bearer form to be prepared and
delivered in exchange for such Global Debt Security in such manner and at such
time as may be provided in or pursuant to the Indenture; provided, however, that
-------- -------
the Global Debt Security shall be exchangeable for definitive Debt Securities in
bearer form only on or after the date specified for such purpose in the
Prospectus.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several
-------------------------------------------
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
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<PAGE>
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in the judgment of the
Manager, is material and adverse and that makes it, in the judgment of
the Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion
of D. Gilbert Friedlander, General Counsel of the Company or other counsel
reasonably acceptable to the Underwriters, dated the Closing Date, to the
effect that (as applicable):
(i) the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to
7
<PAGE>
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(iv) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability;
(v) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
Underwriters' Securities, or by institutional investors in accordance
with the terms of the Delayed Delivery Contracts, in the case of the
8
<PAGE>
Contract Securities, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities, and the Delayed Delivery
Contracts will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to the best
of such counsel's knowledge, any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Offered Securities, or the Delayed Delivery Contract,
except such as may be required by the securities or Blue Sky laws of
the various states and foreign jurisdictions in connection with the
offer and sale of the Offered Securities;
(vii) the statements in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution" (other than
as to the description of intersyndicate agreements and arrangements),
and the statements incorporated by reference in the Prospectus under
the caption "Relationship Between the Company and
9
<PAGE>
General Motors" (or comparable information) in the Company's reports
filed with the Commission under the Exchange Act, in each case insofar
as such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(viii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described or of any contract or other document that is required
to be described in the Registration Statement or the Prospectus or to
be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required;
(ix) such counsel is of the opinion ascribed to it in the Prospectus
under the caption "Certain United States Federal Income Tax
Consequences";
(x) such counsel (A) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules and other
financial information included therein as to which such counsel need
not express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) has not become aware of
any fact that leads such counsel to believe that (except for financial
statements and schedules and other financial information included
therein as to which such counsel need not express any belief and
10
<PAGE>
except for that part of the Registration Statement that constitutes the
Form T-1 heretofore referred to) each part of the Registration
Statement, when such part became effective, contained and, as of the
date such opinion is delivered, contains any untrue statement of a
material fact or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (C) is of the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules and other
financial information included therein as to which such counsel need
not express any opinion) comply as to form in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (D) has not become aware of any fact that
lead such counsel to believe that (except for financial statements and
schedules and other financial information included therein as to which
such counsel need not express any belief) the Prospectus as of the date
such opinion is delivered contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an
opinion of Vinson & Elkins L.L.P., special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in subparagraphs (ii), (iii), (iv), (v), (vii)(but only as to the
statements in the Prospectus under "Description of Debt Securities" and
"Plan of Distribution") and clauses (B), (C) and (D) of subparagraph
(x) of paragraph (c) above.
With respect to subparagraph (x) of paragraph (c) above, D. Gilbert
Friedlander ot such other counsel may state that his opinion and belief are
based upon his participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
11
<PAGE>
thereof, but are without independent check or verification, except as specified.
With respect to clauses (B), (C) and (D) of subparagraph (x) of paragraph (c)
above, Vinson & Elkins L.L.P. may state that their opinion and belief are based
upon their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein by reference), but
are without independent check or verification, except as specified.
The opinion of D. Gilbert Friedlander or such other counsel described
in paragraph (c) above shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Underwriters, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus.
6. COVENANTS OF THE COMPANY. In further consideration of the
------------------------
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, three signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto but including documents incorporated therein by reference)
and, during the period mentioned in paragraph (c) below, as many copies of
the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration
12
<PAGE>
Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which Offered Securities may have been sold by
the Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request, to maintain such qualification for as long as the
Manager shall reasonably request, and to pay all expenses (including
reasonable fees and disbursements of counsel) in connection therewith.
13
<PAGE>
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a
twelve month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earning statement
shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants or other rights to purchase debt securities of the
Company substantially similar to the Offered Securities (other than (i) the
Offered Securities and (ii) commercial paper issued in the ordinary course
of business), without the prior written consent of the Manager.
(g) To pay all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the
Offered Securities; (iii) the fees and disbursements of the Company's
counsel and accountants and of the Trustee and its counsel; (iv) the
qualification of the Offered Securities under state securities or Blue Sky
laws in accordance with the provisions of Section 6(d), including filing
fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
or Legal Investment Memoranda; (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of any
14
<PAGE>
preliminary prospectus and the Prospectus and any amendments or supplements
thereto; (vi) the printing and delivery to the Underwriters of copies of
any Blue Sky or Legal Investment Memoranda; (vii) any fees charged by
rating agencies for the rating of the Offered Securities; (viii) the filing
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. made in connection with
the Offered Securities; and (ix) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors.
7. COVENANTS OF THE UNDERWRITERS. Each of the several Underwriters
-----------------------------
represents and agrees with the Company that:
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold, and
during the restricted period will not offer or sell, Debt Securities in
bearer form (including any Debt Security in global form that is
exchangeable for Debt Securities in bearer form) to a person who is within
the United States or its possessions or to a United States person and (ii)
it has not delivered and will not deliver within the United States or its
possessions definitive Debt Securities in bearer form that are sold during
the restricted period;
(b) it has, and throughout the restricted period will have, in effect
procedures reasonably designed to ensure that its employees or agents who
are directly engaged in selling Debt Securities in bearer form are aware
that such Debt Securities may not be offered or sold during the restricted
period to a person who is within the United States or its possessions or to
a United States person, except as permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will
15
<PAGE>
only do so in accordance with the requirements of U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer form for
the purpose of offering or selling such Debt Securities during the
restricted period, it will either (i) obtain from such affiliate for the
benefit of the Company the representations and agreements contained in
clauses (a), (b) and (c) or (ii) repeat and confirm the representations and
agreements contained in clauses (a), (b) and (c) on such affiliate's behalf
and obtain from such affiliate the authority to so obligate it;
(e) it will obtain for the benefit of the Company the representations
and agreements contained in clauses (a), (b), (c) and (d) from any person
other than its affiliate with whom it enters into a written contract, as
defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4) for the offer or
sale during the restricted period of Debt Securities in bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given to them
by the U.S. Internal Revenue Code (the "Code") and regulations thereunder,
including the D Rules. The restricted period is defined at U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D)(7).
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter, the directors, partners and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securites Act or Section 20 of the Exchange Act from and
against (i) any and all losses, claims, damages, liabilities and reasonable
expenses arising out of any untrue statement or
16
<PAGE>
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
Prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any and all losses, claims, damages, liabilities
and reasonable expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, provided that any such settlement is effected with
the written consent of the Company, and (iii) any and all expenses whatsoever,
as incurred (including the fees and disbursements of counsel chosen by the
Manager), reasonably incurred in investigating, preparing and defending against
any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under the preceding clauses (i)
or (ii), promptly after receipt of adequate documentation relating thereto;
provided, however, that this indemnity shall not apply to any such losses,
claims, damages, liabilities or expenses arising out of any such untrue
statement or omission or alleged untrue statement or omission that is based upon
information furnished to the Company in writing by any Underwriter through the
Manager expressly for use therein; and provided that the foregoing indemnity
agreement with respect to any preliminary prospectuses shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages, liabilities or expenses purchased Offered Securities, or any
person controlling such Underwriter, if it shall be established that a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Offered
Securities to such person, and if the
17
<PAGE>
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability, and if the Company had previously
furnished copies thereof to such Underwriter in the quantities reasonably
requested by such Underwriter. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) of this Section 8, such
person (hereinafter called the indemnified party) shall promptly notify the
person against whom such indemnity may be sought (hereinafter called the
indemnifying party) in writing; provided, however, that the omission so to
notify the indemnifying party shall not relieve the indemnifying party of
any liability which it may have to such indemnified party except to the
extent that the indemnifying party was materially prejudiced by such
failure to notify and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement.
The indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall
18
<PAGE>
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party shall have agreed in writing to pay such fees and expenses,
(ii) the indemnifying party shall have failed to take reasonable steps necessary
to defend diligently any claim within ten calendar days after receiving written
notice from the indemnified party that the indemnified party believes the
indemnifying party has failed to take such steps or (iii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred after receipt of adequate documentation thereof. In the case of any
such separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent the indemnifying party agrees to
indemnify the indemnified party from
19
<PAGE>
and against any loss or liability by reason of such settlement.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 8 is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
20
<PAGE>
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by pro
---
rata allocation (even if the Underwriters were treated as one entity for such
- ----
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 8. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
9. TERMINATION. This Agreement shall be subject to termination by
-----------
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement
21
<PAGE>
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by the New York Stock Exchange, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Manager, is material and adverse and (b) in the
case of any of the events specified in clauses (a)(i) through (iv), such event,
singly or together with any other such event, makes it, in the judgment of the
Manager, impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
10. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or
-----------------------
more of the Underwriters shall fail or refuse to purchase Underwriters'
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
amount of Underwriters' Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
--------
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such amount of Underwriters' Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default
22
<PAGE>
occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company.
In any such case either the Manager or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. COUNTERPARTS. This Agreement may be signed in two or more
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and
--------------
construed in accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
23
<PAGE>
UNDERWRITING AGREEMENT
, 199
ELECTRONIC DATA SYSTEMS CORPORATION
5400 Legacy Drive
Plano, Texas 75024
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Electronic Data
Systems Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell [Currency and Principal Amount] aggregate initial offering price of
[Full title of Debt Securities] (the "Debt Securities"). (The Debt Securities
are also referred to herein as the "Offered Securities.") The Debt Securities
will be issued pursuant to the provisions of an Indenture dated as of ,
199 (the "Indenture"), between the Company and Texas Commerce Bank National
Association, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of % of the principal amount of
Debt Securities [, plus accrued interest, if any, from [Date of Offered
Securities] to the date of payment and
24
<PAGE>
delivery](1):
Principal Amount of
Name Debt Securities
---- -----------------------
Morgan Stanley & Co.
Incorporated
Morgan Stanley & Co. International Limited
[Insert syndicate list]
Total . . . . . .
[The principal amount of Debt Securities to be purchased by the
several Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.](2)
The Underwriters will pay for the Offered Securities [(less any
Offered Securities sold pursuant to delayed delivery contracts)] upon delivery
thereof at [office] at a.m. (New York time) on , 199 ,
or at such other time, not later than 5:00 p.m. (New York time) on ,
199 , as shall be designated by the Manager. The time and date
25
(1) To be added only if the transaction does not close "flat" (i.e., when
the purchaser pays accrued interest on the debt security at closing).
Unless otherwise provided in the Debt Securities, accrued interest, if any,
will be computed on the basis of a 360-day year of twelve 30-day months.
(2) To be added only if delayed delivery contracts are contemplated.
<PAGE>
of such payment and delivery are hereinafter referred to as the Closing Date.(3)
The Offered Securities shall have the terms set forth in the
Prospectus dated August , 1996, and the Prospectus Supplement dated
, 199 , including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)](4)
Form and Denomination:
[Other Terms:]
[The commission to be paid to the Underwriters in respect of the
Offered Securities purchased pursuant to delayed delivery contracts arranged by
the Underwriters shall be % of the principal amount of the Debt Securities so
purchased.](5)
All provisions contained in the document entitled Electronic Data Systems
Corporation Underwriting Agreement Standard
26
(3) This paragraph will be modified for any Offered Securities that are to
be issued in bearer form.
(4) To be added only if the transaction does not close flat.
(5) To be added only if delayed delivery contracts are contemplated.
<PAGE>
Provisions (Debt Securities) dated , 199 , a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control, (ii) all references in such document to a type of security
that is not an Offered Security shall not be deemed to be a part of this
Agreement, and (iii) all references in such document to a type of agreement that
has not been entered into in connection with the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
27
<PAGE>
[SIGNATURE PAGE WHERE MORGAN STANLEY & CO. INCORPORATED
------------------------------------------------------
OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED
---------------------------------------------
IS A CO-LEAD MANAGER]
---------------------
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
[Name of Other Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
By: MORGAN STANLEY & CO. INCORPORATED
MORGAN STANLEY & CO. INTERNATIONAL
LIMITED
By: _______________________________
Name:
Title:
Accepted:
ELECTRONIC DATA SYSTEMS CORPORATION
By: _________________________
28
<PAGE>
Name:
Title:
29
<PAGE>
[SIGNATURE PAGE WHERE MORGAN STANLEY & CO. INCORPORATED
-------------------------------------------------------
OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED
---------------------------------------------
IS SOLE MANAGER]
----------------
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
Acting severally on behalf of itself
and the several Underwriters named herein
By: _____________________________
Name:
Title:
Accepted:
ELECTRONIC DATA SYSTEMS CORPORATION
By: ___________________________
Name:
Title:
30
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
, 199
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Electronic Data Systems
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A annexed
hereto (the "Securities"), offered by the Company's Prospectus dated August ,
1996, and Prospectus Supplement dated , 199 , receipt of copies of
which are hereby acknowledged, at a purchase price stated in Schedule A and on
the further terms and conditions set forth in this Agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by wire
transfer in Federal (same day) funds at the office of , New York,
N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to the
31
<PAGE>
undersigned of the Securities to be purchased by the undersigned on the Delivery
Date, in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned as its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
32
<PAGE>
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser)
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
ELECTRONIC DATA SYSTEMS CORPORATION
By ________________________
33
<PAGE>
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------------
- --------------- --------------------- ----------------
34
<PAGE>
SCHEDULE A
----------
Securities:
- ----------
Principal Amounts or Numbers to be Purchased:
- --------------------------------------------
Purchase Price:
- --------------
Delivery
- --------
35
<PAGE>
EXHIBIT 4
- --------------------------------------------------------------------------------
ELECTRONIC DATA SYSTEMS CORPORATION
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
__________________
Indenture
Dated as of August 12, 1996
__________________
Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions
<TABLE>
<S> <C> <C>
SECTION 1.01. Certain Terms Defined................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act....................... 9
SECTION 1.03. Rules of Construction................................................... 10
</TABLE>
ARTICLE II
Debt Securities
<TABLE>
<S> <C> <C>
SECTION 2.01. Forms Generally......................................................... 10
SECTION 2.02. Form of Trustee's Certificate of Authentication......................... 11
SECTION 2.03. Principal Amount; Issuable in Series.................................... 11
SECTION 2.04. Execution of Debt Securities............................................ 14
SECTION 2.05. Authentication and Delivery of Debt Securities.......................... 15
SECTION 2.06. Denomination of Debt Securities......................................... 17
SECTION 2.07. Registration of Transfer and Exchange................................... 17
SECTION 2.08. Temporary Debt Securities............................................... 20
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.................... 21
SECTION 2.10. Cancellation of Surrendered Debt Securities............................. 22
SECTION 2.11. Provisions of the Indenture and Debt Securities for the Sole
Benefit of the Parties and the Holders.................................. 22
SECTION 2.12. Payment of Interest; Interest Rights Preserved.......................... 23
SECTION 2.13. Securities Denominated in Foreign Currencies............................ 24
SECTION 2.14. Wire Transfers.......................................................... 25
SECTION 2.15. Securities Issuable in the Form of a Global Security.................... 25
SECTION 2.16. Medium Term Securities.................................................. 28
SECTION 2.17. Defaulted Interest...................................................... 28
SECTION 2.18. Judgments............................................................... 30
</TABLE>
ARTICLE III
Redemption of Debt Securities
<TABLE>
<S> <C> <C>
SECTION 3.01. Applicability of Article................................................ 30
SECTION 3.02. Tax Redemption; Special Tax Redemption.................................. 30
SECTION 3.03. Notice of Redemption; Selection of Debt Securities...................... 33
SECTION 3.04. Payment of Debt Securities Called for Redemption........................ 35
SECTION 3.05. Mandatory and Optional Sinking Funds.................................... 36
SECTION 3.06. Redemption of Debt Securities for Sinking Fund.......................... 36
</TABLE>
<PAGE>
ARTICLE IV
Covenants of the Company
<TABLE>
<S> <C> <C>
SECTION 4.01 Payment of Principal of, and Premium, If Any, and Interest on,
Debt Securities......................................................... 38
SECTION 4.02 Maintenance of Offices or Agencies for Registration of Transfer,
Exchange and Payment of Debt Securities................................. 39
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.................. 40
SECTION 4.04. Duties of Paying Agents, etc............................................ 40
SECTION 4.05. Statement by Officers as to Default..................................... 41
SECTION 4.06. Payment of Additional Interest.......................................... 41
SECTION 4.07. Limitation on Liens..................................................... 43
SECTION 4.08. Limitation on Sales and Leasebacks...................................... 45
SECTION 4.09. Waiver of Certain Covenants............................................. 45
SECTION 4.10. Existence............................................................... 46
SECTION 4.11. Further Instruments and Acts............................................ 46
</TABLE>
ARTICLE V
Holders' Lists and Reports
<TABLE>
<S> <C> <C>
SECTION 5.01. Company to Furnish Trustee Information as to Names and Addresses
of Holders; Preservation of Information................................. 46
SECTION 5.02. Communications to Holders............................................... 47
SECTION 5.03. Reports by Company...................................................... 47
SECTION 5.04. Reports by Trustee...................................................... 47
SECTION 5.05. Record Dates for Action by Holders...................................... 48
</TABLE>
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
<TABLE>
<S> <C> <C>
SECTION 6.01. Events of Default....................................................... 49
SECTION 6.02. Collection of Indebtedness by Trustee, etc.............................. 51
SECTION 6.03. Application of Moneys Collected by Trustee.............................. 53
SECTION 6.04. Limitation on Suits by Holders.......................................... 54
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights
Not a Waiver of Default................................................. 55
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities
to Direct Trustee and to Waive Default.................................. 55
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold
Such Notice in Certain Circumstances.................................... 56
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits
under the Indenture or Against the Trustee.............................. 56
</TABLE>
<PAGE>
ARTICLE VII
Concerning the Trustee
<TABLE>
<S> <C> <C>
SECTION 7.01. Certain Duties and Responsibilities..................................... 57
SECTION 7.02. Certain Rights of Trustee............................................... 58
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities...... 60
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities.............. 60
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust.......................... 60
SECTION 7.06. Compensation and Reimbursement.......................................... 60
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate Where No
Other Evidence Specifically Prescribed.................................. 61
SECTION 7.08. Separate Trustee; Replacement of Trustee................................ 61
SECTION 7.09. Successor Trustee by Merger............................................. 63
SECTION 7.10. Eligibility; Disqualification........................................... 63
SECTION 7.11. Preferential Collection of Claims Against Company....................... 64
SECTION 7.12. Compliance with Tax Laws................................................ 64
</TABLE>
ARTICLE VIII
Concerning the Holders
<TABLE>
<S> <C> <C>
SECTION 8.01. Evidence of Action by Holders........................................... 64
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt Securities..... 64
SECTION 8.03. Who May Be Deemed Owner of Debt Securities.............................. 65
SECTION 8.04. Instruments Executed by Holders Bind Future Holders..................... 66
</TABLE>
ARTICLE IX
Supplemental Indentures
<TABLE>
<S> <C> <C>
SECTION 9.01. Purposes for Which Supplemental Indenture May Be Entered into
Without Consent of Holders.............................................. 67
SECTION 9.02. Modification of Indenture with Consent of Holders of Debt Securities.... 69
SECTION 9.03. Effect of Supplemental Indentures....................................... 70
SECTION 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures. 71
SECTION 9.05. Payment for Consent..................................................... 71
</TABLE>
<PAGE>
ARTICLE X
Consolidation, Merger, Sale or Conveyance
<TABLE>
<S> <C> <C>
SECTION 10.01. Consolidations and Mergers of the Company............................... 71
SECTION 10.02. Rights and Duties of Successor Corporation.............................. 72
</TABLE>
ARTICLE XI
Satisfaction and Discharge of Indenture; Defeasance;
Unclaimed Moneys
<TABLE>
<S> <C> <C>
SECTION 11.01. Applicability of Article................................................ 72
SECTION 11.02. Satisfaction and Discharge of Indenture; Defeasance..................... 73
SECTION 11.03. Conditions of Defeasance................................................ 74
SECTION 11.04. Application of Trust Money.............................................. 75
SECTION 11.05. Repayment to Company.................................................... 76
SECTION 11.06. Indemnity for U.S. Government Obligations............................... 76
SECTION 11.07. Reinstatement........................................................... 76
</TABLE>
ARTICLE XII
Miscellaneous Provisions
<TABLE>
<S> <C> <C>
SECTION 12.01. Successors and Assigns of Company Bound by Indenture.................... 76
SECTION 12.02. Acts of Board, Committee or Officer of Successor Company Valid.......... 76
SECTION 12.03. Required Notices or Demands............................................. 76
SECTION 12.04. Indenture and Debt Securities to Be Construed in Accordance
with the Laws of the State of New York.................................. 78
SECTION 12.05. Officers' Certificate and Opinion of Counsel to Be Furnished
upon Application or Demand by the Company............................... 78
SECTION 12.06. Payments Due on Legal Holidays.......................................... 78
SECTION 12.07. Provisions Required by Trust Indenture Act to Control................... 78
SECTION 12.08. Computation of Interest on Debt Securities.............................. 79
SECTION 12.09. Rules by Trustee, Paying Agent and Registrar............................ 79
SECTION 12.10. No Recourse Against Others.............................................. 79
SECTION 12.11. Severability............................................................ 79
SECTION 12.12. Effect of Headings...................................................... 79
SECTION 12.13. Indenture May Be Executed in Counterparts............................... 79
</TABLE>
<PAGE>
ELECTRONIC DATA SYSTEMS CORPORATION
Debt Securities
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive, of the Trust Indenture Act
of 1939.
<TABLE>
<CAPTION>
Indenture
TIA Section Section
- ----------- ---------
<S> <C>
310 (a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... 7.10
(a)(4)................................................... 7.10
(a)(5)................................................... 7.10
(b)...................................................... 7.10
(c)...................................................... N.A.**
311 (a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
3.12 (a)..................................................... 5.01
(b)...................................................... 5.02
(c)...................................................... 5.02
313 (a)...................................................... 5.04
(b)(1)................................................... 5.04
(b)(2)................................................... 5.04
(c)...................................................... 12.03
(d)...................................................... 5.04
</TABLE>
- ---------------------
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
<PAGE>
<TABLE>
<CAPTION>
Indenture
TIA Section Section
- ----------- ---------
<S> <C>
314 (a)(1)................................................... 5.03(a)
(a)(2)................................................... 5.03(b)
(a)(3)................................................... 5.03(a) & (b)
& 12.03
(a)(4)................................................... 4.05
(b)...................................................... N.A.
(c)(1)................................................... 12.05
(c)(2)................................................... 12.05
(c)(3)................................................... N.A.
(d)...................................................... 12.05
(e)...................................................... 4.06
315 (a)...................................................... 7.01(a)
(b)...................................................... 6.07 & 12.03
(c)...................................................... 7.01
(d)...................................................... 7.01
(e)...................................................... 6.08
316 (a) (last sentence)...................................... 1.01
(a)(1)(A)................................................ 6.06
(a)(1)(B)................................................ 6.06
(a)(2)................................................... 9.01(d)
(b)...................................................... 6.04
(c)...................................................... 5.05
317 (a)(1)................................................... 6.02
(a)(2)................................................... 6.02
(b)...................................................... 4.04
318 (a)...................................................... 12.07
</TABLE>
<PAGE>
INDENTURE dated as of August 12, 1996, between ELECTRONIC DATA SYSTEMS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter sometimes called the "Company"), and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association (hereinafter
sometimes called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Certain Terms Defined. The terms defined in this
----------------------
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
Indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires) shall have the meanings assigned to such terms in
the Trust Indenture Act and in the Securities Act as in force as of the date of
original execution of this Indenture.
"Affected Security" has the meaning specified in Section 3.02(b).
-----------------
"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
<PAGE>
respect to any 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.
"Attributable Debt" means, as to any particular Sale and Leaseback
-----------------
Transaction, at any date as of which the amount thereof is to be determined, the
total amount determined by multiplying (i) the greater of (a) the fair value of
the Real Property subject to such arrangement (as determined by any two of the
Company's Chairman of the Board, Vice Chairman, President, Treasurer and
Controller) or (b) the net proceeds of the sale of such Real Property to the
lender or investor by (ii) a fraction, the numerator of which is the number of
months in the unexpired initial term of the lease of such Real Property and the
denominator of which is the number of months in the full initial term of such
lease; provided, however, that Sale and Leaseback Transactions with respect to
Real Property financed by obligations issued by a state or local governmental
unit (whether or not tax exempt pursuant to Section 103(b)(4)(F), 103(b)(4)(E)
or 103(b)(6) of the Internal Revenue Code, or any successor provision thereof)
shall not be included in any calculation of Attributable Debt.
"Authorized Newspaper" means a newspaper in an official language of
--------------------
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 2.03
with respect to the Debt Securities of any series. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any business day in such
city.
"Bearer Holder" means, with respect to any Bearer Security or Coupon,
-------------
the bearer thereof.
"Bearer Security" means any Debt Security (with or without Coupons),
---------------
title to which passes by delivery only, but does not include any Coupons.
"Board of Directors" means either the Board of Directors of the
------------------
Company or any duly authorized committee or subcommittee of such Board, except
as the context may otherwise require.
"business day" means, when used with respect to any Place of Payment
------------
specified pursuant to Section 2.03, any day that is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies in
such Place of Payment are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 2.03.
2
<PAGE>
"Company" means Electronic Data Systems Corporation, a Delaware
-------
corporation, and, subject to the provisions of Article X, shall also include its
successors and assigns.
"Company Order" means a written order of the Company, signed by its
-------------
Chairman of the Board, Vice Chairman, President or any Vice President and by its
Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary.
"Consolidated Net Tangible Assets" means, as of any date of
--------------------------------
determination, the aggregate amount of assets (less applicable reserves and
other properly deductible items) after deducting therefrom (a) all current
liabilities (excluding any current liabilities for money borrowed having a
maturity of less than 12 months but by its terms being renewable or extendible
beyond 12 months from such date at the option of the borrower) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the most recent balance
sheet of the Company and its consolidated subsidiaries and computed in
accordance with generally accepted accounting principles.
"corporate trust office of the Trustee" or other similar term means
-------------------------------------
the office of the Trustee in Houston, Texas at which the corporate trust
business of the Trustee shall, at any particular time, be principally
administered in the United States of America, which is on the date hereof at 600
Travis Street, 8th Floor, Houston, Texas 77002, Attention: Global Trust Services
- - EDS, except that with respect to the presentation of Debt Securities for
payment or for registration of transfer and exchange, such term shall also mean
the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the city and state of New York, which on the date hereof is at 55 Water Street,
North Building, Room 234, Windows 20 and 21, New York, New York 10041, and the
office of the Trustee in the city of Dallas, Texas, which on the date hereof is
at 1201 Main Street, 18th Floor, Dallas, Texas 75202, in each case at which at
any particular time its corporate agency business shall be conducted.
"Coupon" means any interest coupon appertaining to any Bearer
------
Security.
"Coupon Security" means any Bearer Security authenticated and
---------------
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
--------
"Debt Security" or "Debt Securities" has the meaning stated in the
------------- ---------------
first recital of this Indenture and more particularly means any debt security or
debt securities, as the case may be, of any series authenticated and delivered
under this Indenture.
"Default" means any event which is, or after notice or passage of time
-------
or both would be, an Event of Default.
3
<PAGE>
"Depositary" means, unless otherwise specified by the Company pursuant
----------
to either Section 2.03 or 2.15, with respect to Debt Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
"Dollar" or "$" means such currency of the United States as at the
------ -
time of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a
-----------------
Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase of Dollars with the
applicable Foreign Currency as quoted by Citibank (unless another comparable
financial institution is designated by the Company) in New York, New York, at
approximately 11:00 a.m. (New York time) on the date two business days prior to
such determination.
"European Currency Units" has the meaning assigned to it from time to
-----------------------
time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
--------------------
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 6.01.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"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 specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued by the government of any
----------------
country other than the United States or a composite currency the value of which
is determined by reference to the values of the currencies of any group of
countries.
"Funded Debt" means all indebtedness for money borrowed having a
-----------
maturity of more than 12 months from the date as of which the amount thereof is
to be determined.
"Global Security" means with respect to any series of Debt Securities
---------------
issued hereunder, a Debt Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or
4
<PAGE>
resolution of the Board of Directors and set forth in an Officers' Certificate,
which shall be registered in the name of the Depositary or its nominee and which
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all the Outstanding Debt Securities of such series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due and interest rate or method of determining interest.
"Holder," "Holder of Debt Securities" or other similar terms means,
------ -------------------------
with respect to a Registered Security, the Registered Holder and, with respect
to a Bearer Security or a Coupon, the Bearer Holder.
"Indenture" means this instrument as originally executed, or, if
---------
amended or supplemented as herein provided, as so amended or supplemented, and
shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental indenture is entered into
with respect thereto.
"Interest" includes, when used with respect to a Bearer Security, any
--------
additional interest payable on such Bearer Security pursuant to Section 3.02 or
4.06.
"Lien" means any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind.
"Mortgage" has the meaning specified in Section 4.07.
--------
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board, the Vice Chairman, the President or any Vice President and by the
Treasurer, the Secretary or any Assistant Treasurer or Assistant Secretary of
the Company. Each such certificate shall include the statements provided for in
Section 12.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal
------------------
counsel for the Company (who may be an employee of the Company), or outside
counsel for the Company who shall be reasonably satisfactory to the Trustee.
Each such opinion shall include the statements provided for in Section 12.05, if
applicable.
"Original Issue Discount Debt Security" means any Debt Security which
-------------------------------------
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01.
"Outstanding", when used with respect to any series of Debt
-----------
Securities, means, as of the date of determination, all Debt Securities of that
series theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
5
<PAGE>
(ii) Debt Securities of that series 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; provided, 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 of that series which have been paid pursuant to
Section 2.09 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 the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver 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 request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes 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 6.01.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Debt Security denominated in one or more foreign currencies or
currency units that shall be deemed to be Outstanding for such purposes shall be
the Dollar Equivalent, determined in the manner provided as contemplated by
Section 2.03 on the date of original issuance of such Debt Security, of the
principal amount (or, in the case of any Original Issue Discount Security, the
Dollar Equivalent on the date of original issuance of such Security of the
amount determined as provided in the preceding sentence above) of such Debt
Security.
6
<PAGE>
"Person" means any individual, corporation, limited liability company,
------
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt
----------------
Securities of any series, 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 2.03.
"principal London office of the Trustee" means the office of the
--------------------------------------
Trustee in the city of London, England, which on the date hereof is at Chase
Manhattan Bank - London, Global Trust Services - Woolgate House, Coleman Street,
4th Floor, London, England EC2P 2HD, at which at any particular time its
corporate agency business, including presentation of Debt Securities for payment
or for registration of transfer and exchange, shall be conducted.
"Real Property" means any real property, and any building, structure
-------------
or other facility thereon, located in the United States (excluding its
territories and possessions, but including Puerto Rico), owned or leased by the
Company or any Subsidiary of the Company, the gross book value (without
deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 1% of Consolidated Net Tangible Assets,
other than any such real property, building, structure or other facility or
portion thereof (i) that is financed by obligations issued by a state or local
governmental unit (whether or not tax exempt pursuant to Section 103(b)(4)(F),
103(b)(4)(E) or 103(b)(6) of the Internal Revenue Code of 1954, or any successor
provision thereof in the Internal Revenue Code of 1986), (ii) that consists of
approximately 175.35 acres currently known as the Company's Forest Lane property
located in Dallas, Texas, and more particularly described on Exhibit A hereto,
---------
(iii) that consists of approximately 381 acres and currently known as the
Company's Plano headquarters property located in Plano, Texas, and more
particularly described on Exhibit A hereto, or (iv) which if not owned or leased
---------
by the Company or its Subsidiaries, in the opinion of the Board of Directors of
the Company, would not have a material adverse effect on the business conducted
by the Company and its Subsidiaries as an entirety.
"Registered Holder" means the Person in whose name a Registered
-----------------
Security is registered in the Debt Security Register (as defined in Section
2.07(a)).
"Registered Security" means any Debt Security registered as to
-------------------
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
---------
"responsible officer", when used with respect to the Trustee, means
-------------------
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-
7
<PAGE>
chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller 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.
"Restricted Subsidiary" means any Subsidiary that owns a Real
---------------------
Property, except a Subsidiary that is engaged primarily in financing the
operations of the Company or its Subsidiaries, or both, outside the states of
the United States, and (a) more than 50% of whose net sales and operating
revenues during the preceding four calendar quarters was derived from, or more
than 50% of whose operating properties is located in, the United States
(excluding its territories and possessions, but including Puerto Rico), or (b)
more than 50% of whose assets consists of securities of other Restricted
Subsidiaries.
"Sale and Leaseback Transaction" has the meaning specified in Section
------------------------------
4.08.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Stated Maturity" means, with respect to any security, the date
---------------
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" means a corporation, association, partnership or other
----------
entity of which more than 80% of the outstanding Voting Stock is owned, directly
or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries.
"Trustee" initially means Texas Commerce Bank National Association and
-------
any other Person or Persons appointed as such from time to time pursuant to
Section 7.08, and, subject to the provisions of Article VII, includes its or
their successors and assigns. 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 the Debt Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly provided)
-------------------
means the Trust Indenture Act of 1939 as in force at the date of this Indenture
as originally executed and, to the extent required by law, as amended.
8
<PAGE>
"United States" means the United States of America (including the
-------------
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
-------------------
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States Federal income
tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities that are (x) direct
---------------------------
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof.
"Voting Stock" means stock of the class or classes having general
------------
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation, association,
partnership or other entity (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
"Yield to Maturity" means the yield to maturity, calculated at the
-----------------
time of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance
with accepted financial practice.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
This Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this Indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
9
<PAGE>
"obligor" on the indenture securities means the Company and any other
obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, reference to another statute or defined by
rules of the Securities and Exchange Commission have the meanings assigned to
them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise
----------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with United States generally accepted accounting
principles;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular; and
(6) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with United States generally accepted accounting principles.
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally. The Debt Securities and Coupons, if
----------------
any, of each series shall be in substantially the form established without the
approval of any Holder by or pursuant to a resolution of the Board of Directors
or in one or more Indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture or as may be required or appropriate to comply with any law or
with any rules made pursuant thereto or with any rules of any securities
exchange on which such series of Debt Securities may be listed, or to conform to
general usage, or as may, consistently herewith, be determined by the officers
10
<PAGE>
executing such Debt Securities and Coupons, as evidenced by their execution of
the Debt Securities and Coupons.
The definitive Debt Securities of each series and Coupons, if any,
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Debt Securities and Coupons, as evidenced by their execution of such Debt
Securities and Coupons.
Each Bearer Security and each Coupon shall bear a legend substantially
to the following effect: "Any United States Person who holds this obligation
will be subject to limitations under the United States income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
------------------------------------------------
Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION,
As Trustee
By.....................
Authorized Signatory
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate
-------------------------------------
principal amount of Debt Securities which may be executed, authenticated,
delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established, without the approval of any Holders, pursuant to authority
granted by the Board of Directors and set forth in an Officers' Certificate,
(which shall be signed by an officer to whom authority to establish the terms of
each series of Debt Securities has been granted by the Board of Directors of the
Company), or established in one or more indentures supplemental hereto, prior to
the issuance of Debt Securities of any series any or all of the following:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
11
<PAGE>
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series is payable;
(4) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable, or the method by which such date will be determined, in the case
of Registered Securities, the record dates for the determination of Holders
thereof to whom such interest is payable, and the basis upon which interest
will be calculated if other than that of 360-day year of twelve thirty-day
months;
(5) the place or places, if any, in addition to or instead of the
corporate trust office of the Trustee (in the case of Registered
Securities) or the principal London office of the Trustee (in the case of
Bearer Securities), where the principal of, and premium, if any, and
interest, if any, on Debt Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(7) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto, whether
Bearer Securities of the series may be exchanged for Registered Securities
of the series and the circumstances under which and the places at which any
such exchanges, if permitted, may be made;
(8) if any Debt Securities of the series are to be issued as Bearer
Securities or as one or more Global Securities representing individual
Bearer Securities of the series, (x) whether the provisions of Sections
3.02 and 4.06 or other provisions for payment of additional interest or tax
redemptions shall apply and, if other provisions shall apply, such other
provisions; (y) whether interest in respect of any portion of a temporary
Bearer Security of the series (delivered pursuant to Section 2.08) payable
in respect of any interest payment date prior to the exchange of such
temporary Bearer Security for definitive Bearer Securities of the series
shall be paid to any clearing organization with respect to the portion of
such
12
<PAGE>
temporary Bearer Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such interest
payment date; and (z) the terms upon which a temporary Bearer Security may
be exchanged for one or more definitive Bearer Securities of the series;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the price or
prices at which and the period or periods within which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(10) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for other Debt Securities or warrants
for indebtedness or other securities of any kind of the Company or any
other obligor and the terms and conditions upon which such conversion or
exchange shall be effected, including the initial conversion or exchange
price or rate, the conversion or exchange period and any other provision in
addition to or in lieu of those described herein;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
(12) if the amount of principal of or any premium or interest on Debt
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
(13) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity
other than the Stated Maturity or which will be deemed to be Outstanding as
of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined); and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of Dollar Equivalent;
(14) any changes or additions to Article XI, including the addition of
additional covenants that may be subject to the covenant defeasance option
pursuant to Section 11.02(b)(ii);
13
<PAGE>
(15) if other than such coin or Currency of the United States as at
the time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or units of two or more
Currencies in which payment of the principal of, and premium, if any, and
interest on, Debt Securities of the series shall be payable;
(16) 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 6.01 or provable in bankruptcy pursuant to Section 6.02;
(17) any addition to or change in the Events of Default with respect
to the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of, and premium and
interest on, such Debt Securities due and payable;
(18) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Debt Securities in
definitive registered form; and the Depositary for such Global Security or
Securities and the form of any legend or legends to be borne by any such
Global Security or Securities in addition to or in lieu of the legend
referred to in Section 2.15;
(19) any trustees, authenticating or paying agents, transfer agents or
registrars;
(20) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in the
terms currently set forth in Article X;
(21) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(22) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of this Indenture).
All Debt Securities of any one series and the Coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the
Board of Directors and as set forth in such Officers' Certificate or in any such
Indenture supplemental hereto.
SECTION 2.04. Execution of Debt Securities. The Debt Securities and
-----------------------------
the Coupons, if any, shall be signed on behalf of the Company by its Chairman of
the
14
<PAGE>
Board, its Vice Chairman, its President or a Vice President and by its
Secretary, an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such
signatures upon the Debt Securities and Coupons may be the manual or facsimile
signatures of the present or any future such authorized officers and may be
imprinted or otherwise reproduced on the Debt Securities and Coupons. The seal
of the Company, if any, may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities and
Coupons.
Only such Debt Securities and Coupons as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
signed manually by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Debt Security or Coupon executed by the Company shall be
conclusive evidence that the Debt Security or Coupon so authenticated has been
duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities or Coupons shall cease to be such officer before the Debt
Securities or Coupons so signed shall have been authenticated and delivered by
the Trustee, or disposed of by the Company, such Debt Securities or Coupons
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities or Coupons had not ceased to be such
officer of the Company; and any Debt Security or Coupon may be signed on behalf
of the Company by such Persons as, at the actual date of the execution of such
Debt Security or Coupon, shall be the proper officers of the Company, although
at the date of such Debt Security or Coupon or of the execution of this
Indenture any such Person was not such officer.
SECTION 2.05. Authentication and Delivery of Debt Securities. At any
-----------------------------------------------
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Debt Securities, with appropriate Coupons, if any, 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 shall thereupon authenticate and deliver said Debt
Securities and Coupons in accordance with the Company Order. In authenticating
such Debt Securities and Coupons, and accepting the additional responsibilities
under this Indenture in relation to such Debt Securities and Coupons, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of
Directors, certified by the Secretary or Assistant Secretary of the
Company, authorizing the terms of issuance and the form of any series of
Debt Securities and Coupons or authorizing the approval of any such terms
of issuance and form by an officer of the Company;
(2) an executed supplemental indenture, if any;
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(3) an Officers' Certificate; and
(4) an Opinion of Counsel prepared in accordance with Section 12.05
which shall also state:
(a) that the form of such Debt Securities and Coupons has been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Section 2.01 in
conformity with the provisions of this Indenture;
(b) that the terms of such Debt Securities and Coupons have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Section 2.03 in
conformity with the provisions of this Indenture;
(c) that such Debt Securities and Coupons, when authenticated
and delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(d) that the Company has the corporate power to issue such Debt
Securities and Coupons and has duly taken all necessary corporate
action with respect to such issuance;
(e) that the issuance of such Debt Securities and Coupons will
not contravene the certificate of incorporation or by-laws of the
Company or result in any material violation of any of the terms or
provisions of any law or regulation or of any indenture, mortgage or
other agreement known to such counsel by which the Company is bound;
(f) that authentication and delivery of such Debt Securities and
Coupons and the execution and delivery of any supplemental indenture
will not violate the terms of this Indenture; and
(g) such other matters as the Trustee may reasonably request.
16
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Such Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in a currency other than that
of the United States.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities or Coupons under this Section 2.05 if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
or if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors, trustees or vice presidents shall
determine that such action would expose the Trustee to personal liability to
existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Debt Securities and Coupons, if any, of any
series. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Debt Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
any Registrar, paying agent or agent for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any series,
each Debt Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise
--------------------------------
provided in the form of Debt Security for any series, the Debt Securities of
each series shall be issuable only as Registered Securities in such
denominations as shall be specified or contemplated by Section 2.03. In the
absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 2.07. Registration of Transfer and Exchange.
--------------------------------------
(a) The Company shall keep or cause to be kept a register for each
series of Registered Securities issued hereunder (hereinafter collectively
referred to as the "Debt Security Register"), in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the transfer of Registered Securities
as provided in this Article II. At all reasonable times the Debt Security
Register shall be open for inspection by the Trustee. Subject to Section 2.15,
upon due presentment for registration of transfer of any Registered Security at
any office or agency to be maintained by the Company in accordance with the
provisions of Section 4.02, the Company shall execute and, upon receipt of a
Company Order requesting authentication and delivery, the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of authorized denominations for a
like aggregate principal amount. Except as otherwise specified pursuant to
Section 2.03, in no event may Registered Securities, including
17
<PAGE>
Registered Securities received in exchange for Bearer Securities, be exchanged
for Bearer Securities.
Unless and until otherwise determined by the Company by resolution of
the Board of Directors, the register of the Company for the purpose of
registration, exchange or registration of transfer of the Registered Securities
shall be kept at the corporate trust office of the Trustee and, for this
purpose, the Trustee shall be designated "Registrar".
Registered Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for a like aggregate principal
amount of Registered Securities of the same series of other authorized
denominations. Subject to Section 2.15, Registered Securities to be exchanged
shall be surrendered at the office or agency to be maintained by the Company as
provided in Section 4.02, and the Company shall execute and, upon receipt of a
Company Order requesting the authentication and delivery, the Trustee shall
authenticate and deliver in exchange therefor the Registered Security or
Registered Securities which the Holder making the exchange shall be entitled to
receive.
At the option of the Holder of Bearer Securities of any series, except
as otherwise specified as contemplated by Section 2.03(7) or 2.03(18) with
respect to a Global Security representing Bearer Securities, Bearer Securities
of such series may be exchanged for Registered Securities (if the Debt
Securities of such series are issuable as Registered Securities) or Bearer
Securities of the same series, of any authorized denomination or denominations,
of like tenor and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at the office or agency of the Company maintained for
such purpose, with all unmatured Coupons and all matured Coupons in Default
thereto appertaining; provided, however, that delivery of a Bearer Security
-------- -------
shall occur only outside the United States. If such Holder is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in Default,
such exchange may be effected if such Holder's Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any paying agent harmless. If thereafter such Holder shall
surrender to any paying agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
-------- -------
Section 2.12, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and, upon receipt of a Company Order requesting the
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<PAGE>
authentication and delivery, the Trustee shall authenticate and deliver, the
Debt Securities that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the 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 exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, 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 (a) to issue, register the transfer
of or exchange any Debt Securities for a period of 15 days next preceding the
day of any mailing of notice of redemption of Debt Securities of such series or
(b) to register the transfer of or exchange any Debt Securities selected, called
or being called for redemption; provided, however, that, if specified pursuant
-------- -------
to Section 2.03, any Bearer Securities of any series that are exchangeable for
Registered Securities and that are called for redemption pursuant to Section
3.02 may, to the extent permitted by applicable law, be exchanged for one or
more Registered Securities of such series during the period preceding the
redemption date therefor.
Prior to the due presentation for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent or any Registrar may deem
and treat the Person in whose name a Debt Security is registered as the absolute
owner of such Debt Security for the purpose of receiving payment of principal
of, and premium, if any, and interest on, such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security is overdue, and none of
the Company, the Trustee, any paying agent or Registrar shall be affected by
notice to the contrary.
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Title to any Bearer Security and any Coupons appertaining thereto
shall pass by delivery. The Company, the Trustee, the paying agent and any agent
of the Company or the Trustee may treat the bearer of any Bearer Security and
the bearer of any Coupon as the absolute owner of such Bearer Security or Coupon
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or Coupon be
overdue, and none of the Company, the Trustee, the paying agent or any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.08. Temporary Debt Securities. Pending the preparation of
--------------------------
definitive Debt Securities of any series, the Company may execute and, upon
receipt of a Company Order requesting the authentication and delivery, the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form or, if authorized, in bearer
form with one or more Coupons or without Coupons, and with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities
and Coupons, all as may be determined by the Company with the concurrence of the
Trustee. Temporary Debt Securities and Coupons may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Debt
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debt Securities.
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. Except as otherwise specified as contemplated by Section
2.03(8)(z) with respect to a series of Debt Securities issuable as Bearer
Securities or as one or more Global Securities representing individual Bearer
Securities of the series, (a) after the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series 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 thereof,
except as provided in Section 2.07 in connection with a transfer and except that
a Person receiving definitive Bearer Securities shall bear the cost of
insurance, postage, transportation and the like unless otherwise specified
pursuant to Section 2.03, and (b) upon surrender for cancellation of any one or
more temporary Debt Securities of any series (accompanied by any unmatured
Coupons appertaining thereto), the Company shall execute and, upon receipt of a
Company Order requesting the authentication and delivery, 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
like tenor; provided, however, that no definitive Bearer Security shall be
-------- -------
delivered in exchange for a temporary Registered Security; and provided,
--------
further, however, that delivery of a Global Security representing individual
- ------- -------
Bearer Securities or a Bearer Security shall occur only
20
<PAGE>
outside the United States. Until so exchanged, 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, except as otherwise
specified as contemplated by Section 2.03(8)(y) with respect to the payment of
interest on Global Securities in temporary form.
Unless otherwise specified pursuant to Section 2.03, the Company will
execute and deliver each definitive Global Security representing individual
Bearer Securities and each Bearer Security to the Trustee at its principal
office in London or such other place outside the United States specified
pursuant to Section 2.03.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount to
exchanged and endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security or any mutilated Coupon with the Coupon
Security to which it appertains (and all unmatured Coupons attached thereto) is
surrendered to the Trustee at its corporate trust office (in the case of
Registered Securities) or at its principal London office (in the case of Bearer
Securities) or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or any
Coupon, 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 or Coupon has been acquired by a bona fide purchaser, then the Company
shall execute and, upon receipt of a Company Order requesting the authentication
and delivery, the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertained, a new Debt Security of the same series of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding, and, in the case of a Coupon Security, with such Coupons attached
thereto that neither gain nor loss in interest shall result from such exchange
or substitution. Upon the issuance of any substituted Debt Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Debt Security or Coupon which has
matured or is about to mature or which has been called for redemption shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Debt Security or Coupon, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Debt
Security or Coupon) if the applicant for such payment shall furnish the Company
and the Trustee with such security or indemnity as either may
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<PAGE>
require to save it harmless from all risk, however remote, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Debt Security or Coupon and of
the ownership thereof; provided, however, that payment of principal of, and
-------- -------
premium, if any, and interest on, Bearer Securities or Coupons shall, except as
otherwise provided in Section 2.12, be payable only at an office or agency
located outside the United States.
Every substituted Debt Security of any series, with its Coupons, if
any, issued pursuant to the provisions of this Section 2.09 by virtue of the
fact that any Debt Security or Coupon is destroyed, lost or stolen shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Debt Security or Coupon shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series and
Coupons, if any, duly issued hereunder. All Debt Securities and Coupons, if
any, shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities or Coupons, and shall
preclude any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. Cancellation of Surrendered Debt Securities. All Debt
--------------------------------------------
Securities surrendered for payment, redemption, registration of transfer or
exchange and all Coupons surrendered for payment or exchange shall, if
surrendered to the Company or any paying agent or a Registrar, be delivered to
the Trustee for cancellation by it, or if surrendered to the Trustee, shall be
canceled by it, and no Debt Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities and Coupons held by the Trustee shall
be destroyed (subject to the record retention requirements of the Exchange Act)
and certification of their destruction (or retention) delivered to the Company,
unless otherwise directed. On request of the Company, the Trustee shall deliver
to the Company canceled Debt Securities and Coupons held by the Trustee. If the
Company shall acquire any of the Debt Securities or Coupons, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until the same are delivered or
surrendered to the Trustee for cancellation. The Company may not issue new Debt
Securities or Coupons to replace Debt Securities or Coupons it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.11. Provisions of the Indenture and Debt Securities for the
-------------------------------------------------------
Sole Benefit of the Parties and the Holders. Nothing in this Indenture or in
- --------------------------------------------
the Debt Securities or Coupons, expressed or implied, shall give or be construed
to give to any Person, other than the parties hereto, the Holders or any
Registrar or paying agent, any legal or equitable right, remedy or claim under
or in respect of this Indenture, or under any covenant, condition or
provision herein contained; all its covenants, conditions and
22
<PAGE>
provisions being for the sole benefit of the parties hereto, the Holders and any
Registrar and paying agents.
SECTION 2.12. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
(a) Interest on any Registered 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 Registered Security is registered at the close
of business on the regular record date for such interest notwithstanding the
cancellation of such Registered Security upon any transfer or exchange
subsequent to the regular record date. In case a Coupon Security of any series
is surrendered in exchange for a Registered Security of such series after the
close of business (at an office or agency in a Place of Payment for such series)
on any regular record date and before the opening of business (at such office or
agency) on the next succeeding interest payment date, such Coupon Security shall
be surrendered without the Coupon relating to such interest payment date and
interest will not be payable on such interest payment date in respect of the
Registered Security issued in exchange for such Coupon Security, but will be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture. Payment of interest on Registered Securities
shall be made at the corporate trust office of the Trustee (except as otherwise
specified pursuant to Section 2.03), 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 Debt Security Register or, if provided by the terms of the
Registered Securities pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered Holder
by wire transfer to an account designated by the Registered Holder.
(b) No interest shall be payable with respect to a Bearer Security or
Coupon unless such certification requirements as are specified pursuant to
Section 2.03(8) are satisfied with respect to such Bearer Security or Coupon.
Interest on any Coupon Security that is payable and is punctually paid or duly
provided for on any interest payment date shall be paid to the Holder of the
Coupon that has matured on such interest payment date upon surrender of such
Coupon on such interest payment date at the principal London office of the
Trustee or at such other Place of Payment outside the United States specified
pursuant to Section 2.03.
Interest on any Bearer Security (other than a Coupon Security) that is
payable and is punctually paid or duly provided for on any interest payment date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such interest payment date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 2.03.
Unless otherwise specified pursuant to Section 2.03, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, and subject
to applicable laws and regulations, payments in respect of such Bearer Security
or Coupon will be
23
<PAGE>
made by check drawn on a bank in New York, New York or, if provided by the terms
of such Bearer Security or Coupon pursuant to Section 2.03 and in accordance
with arrangements satisfactory to the Trustee, by wire transfer to a Dollar
account maintained by such Holder with a bank outside the United States. If such
payment at the offices of all paying agents outside the United States becomes
illegal or is effectively precluded because of the imposition of exchange
controls or similar restrictions on the full payment or receipt of such amounts
in Dollars, the Company will appoint an office or agent in the United States at
which such payment may be made. Unless otherwise specified pursuant to Section
2.03, at the direction of the Holder of any Bearer Security or Coupon payable in
a Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or, if provided by the terms of
such Bearer Security or Coupon pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, by wire transfer to an appropriate
account maintained by such Holder outside the United States. Except as provided
in this paragraph, no payment on any Bearer Security or Coupon will be made by
mail to an address in the United States or by transfer to an account maintained
by the Holder thereof in the United States.
(c) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 2.13. Securities Denominated in Foreign Currencies.
---------------------------------------------
(a) Except as otherwise specified pursuant to Section 2.03 for Bearer
Securities of any series, payment of the principal of, and premium, if any, and
interest on, Bearer Securities of such series denominated in any Currency will
be made in such Currency.
(b) Except as otherwise specified pursuant to Section 2.03 for
Registered Securities of any series, payment of the principal of, and premium,
if any, and interest on, Registered Securities of such series denominated in any
Currency will be made in Dollars.
(c) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency or in units of two or
more Foreign Currencies (including European Currency Units) for any purpose
under this Indenture, the principal amount of such Debt Securities at any time
Outstanding shall be deemed to be the Dollar Equivalent of such principal amount
as of the date of any such calculation.
In the event any Foreign Currency or Currencies or units of two or
more Currencies in which any payment with respect to any series of Debt
Securities may be made ceases to be a freely convertible Currency on United
States Currency markets, for
24
<PAGE>
any date thereafter on which payment of principal of, or premium, if any, or
interest on, the Debt Securities of a series is due, the Company shall select
the Currency of payment for use on such date, all as provided in the Debt
Securities of such series. In such event, the Company shall notify the Trustee
of the Currency which it has selected to constitute the funds necessary to meet
the Company's obligations on such payment date and of the amount of such
Currency to be paid. Such amount shall be determined as provided in the Debt
Securities of such series. The payment with respect to such payment date shall
be deposited with the Trustee by the Company solely in the Currency so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to
---------------
the contrary in this Indenture, the Company may make any payment of monies
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Debt Securities (whether pursuant to
optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer in immediately available funds to an account designated by the
Trustee on or before the date such moneys are to be paid to the Holders of the
Debt Securities in accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global Security.
-----------------------------------------------------
(a) If the Company shall establish pursuant to Sections 2.01 and 2.03
that the Debt Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee or its agent shall, upon receipt of a Company Order
requesting authentication and delivery in accordance with Section 2.05,
authenticate and deliver, such Global Security or Securities, which (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 such Global Security or Securities, or such portion thereof as
the Company shall specify in an Officers' Certificate, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the Depositary
or pursuant to the 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 the individual Debt Securities represented hereby, this
Global Security may not be transferred except as 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", or such other
legend as may then be required by the Depositary for such Global Security or
Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a
25
<PAGE>
nominee of the Depositary to the Depositary or another nominee of the
Depositary, or by the Depositary or a nominee of the Depositary to a successor
Depositary for such Global Security selected or approved by the Company, or to a
nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole discretion determine
that the Debt Securities of any series or portion thereof issued or issuable in
the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Debt Securities of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Debt Securities
of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such series or portion thereof
in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.01 and 2.03
with respect to Debt Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Debt Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee upon receipt of a Company Order for the
authentication and delivery of definitive Debt Securities of such series, shall
authenticate and deliver, without service charge, (1) to each Person specified
by such Depositary a new Debt Security or Securities of the same series of like
tenor and terms and 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 Security; and (2) to such Depositary a new
Global Security of like tenor and terms and in an authorized denomination equal
to the difference, if any, between the principal
26
<PAGE>
amount of the surrendered Global Security and the aggregate principal amount of
Debt Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee, upon receipt of a Company
Order requesting the authentication and delivery of individual Debt Securities,
will authenticate and deliver individual Debt Securities. Upon the exchange of
the entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Registered Securities issued in exchange
for a Global Security pursuant to this Section 2.15 shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Registrar. The Trustee or the
Registrar shall deliver such Registered Securities to the Persons in whose names
such Registered Securities are so registered.
(v) Payments in respect of the principal of, premium, if any, and
interest on any Debt Securities registered in the name of the Depositary or its
nominee will be payable to the Depositary or such nominee in its capacity as the
registered owner of such Global Security. The Company and the Trustee may treat
the person in whose names the Debt Securities, including the Global Security,
are registered as the owner thereof for the purpose of receiving such payments
and for any and all other purposes whatsoever. None of the Company, the
Trustee, any Registrar, the paying agent or any agent of the Company or the
Trustee will have any responsibility or liability for (a) any aspect of the
records relating to or payments made on account of the beneficial ownership
interests of the Global Security by the Depositary or its nominee or any of the
Depositary's direct or indirect participants, or for maintaining, supervising or
reviewing any records of the Depositary, its nominee or any of its direct or
indirect participants relating to the beneficial ownership interests of the
Global Security, (b) the payments to the beneficial owners of the Global
Security of amounts paid to the Depositary or its nominee, or (c) for any other
matter relating to the actions and practices of the Depositary, its nominee or
any of its direct or indirect participants. None of the Company, the Trustee or
any such agent will be liable for any delay by the Depositary, its nominee, or
any of its direct or indirect participants in identifying the beneficial owners
of the Debt Securities, and the Company and the Trustee may conclusively rely
on, and will be protected in relying on, instructions from the Depositary or its
nominee for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Debt Securities to be
issued).
The Trustee shall deliver individual Bearer Securities issued in
exchange for a Global Security pursuant to this Section 2.15 to the Persons and
in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that individual Bearer Securities
-------- -------
shall be delivered in exchange for a Global
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Security only in accordance with the procedures set forth in Section 2.07 and as
may be specified pursuant to Section 2.03.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
SECTION 2.16. Medium Term Securities. Notwithstanding any contrary
-----------------------
provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental indenture, Opinion of Counsel or Company Order or any other
document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 12.05 at or
prior to the time of authentication of each Debt Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such
series to be issued; provided, that any subsequent request by the Company to the
--------
Trustee to authenticate Debt Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 and 12.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
authentication of an original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the written
order delivered to the Trustee or its agent by Persons designated in such
Company Order and that such Persons are authorized to determine, consistent with
the Officers' Certificate, supplemental indenture or resolution of the Board of
Directors relating to such Company Order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental
indenture or such resolution.
SECTION 2.17. Defaulted Interest.
-------------------
(a) Any interest on any Debt Security of a particular series which is
payable, but is not punctually paid or duly provided for, on the dates and in
the manner provided in the Debt Securities of such series and in this Indenture
(herein called "Defaulted Interest") shall, if such Debt Security is a
Registered Security, forthwith cease to be payable to the Registered Holder
thereof on the relevant record date by virtue of having been such Registered
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (i) or (ii) below:
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(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series 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 Registered Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. 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 pre-paid, to each Holder thereof at its address as it appears
in the Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and
the special record date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series are registered at the close of business on such
special record date. In case a Coupon Security of any such series is
surrendered in exchange for a Registered Security of such series after the
close of business (at an office or agency in a Place of Payment for such
series) on any special record date and before the opening of business (at
such office or agency) on the related proposed date of payment of Defaulted
Interest, such Coupon Security shall be surrendered without the Coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Coupon Security, but will be payable
only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest on the
Registered Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
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(b) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 12.03
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
SECTION 2.18 Judgments. The Company may provide pursuant to Section
----------
2.03 for Debt Securities of any series that (a) the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost of exchange) on the business day in
the country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to the Debt Securities of any series which are
redeemable before their Stated Maturity except as otherwise specified as
contemplated by Section 2.03 for Debt Securities of such series.
SECTION 3.02. Tax Redemption; Special Tax Redemption. (a) Unless
---------------------------------------
otherwise specified pursuant to Section 2.03, Bearer Securities of any series
may be redeemed at the option of the Company in whole, but not in part, at any
time, on giving not less than 30 or more than 60 days' notice in accordance with
Section 3.03 (which
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notice shall be irrevocable), at the redemption price thereof (calculated
without premium), plus interest accrued to the redemption date, if the Company
has or will become obligated to pay additional interest on such Bearer
Securities pursuant to Section 4.06 as a result of any change in, or amendment
to, the laws (or any regulations or rulings promulgated thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein, or any change in the application or official interpretation of such
laws, regulations or rulings, which change or amendment becomes effective on or
after the date on which any Person (including any Person acting as underwriter,
broker or dealer) agrees to purchase any of such Bearer Securities pursuant to
their original issuance, and such obligation cannot be avoided by the Company
taking reasonable measures available to it; provided, that no such notice of
--------
redemption shall be given earlier than 90 days prior to the earliest date on
which the Company would be obligated to pay such additional interest were a
payment in respect of the Bearer Securities of that series then due. Prior to
the publication of any notice of redemption pursuant to this Section 3.02(a),
the Company shall deliver to the Trustee (i) an Officers' Certificate stating
that the Company is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Company so to redeem have occurred and (ii) an Opinion of Counsel to the effect
that the Company has or will become obligated to pay such additional interest as
a result of such change or amendment.
(b) Unless otherwise specified pursuant to Section 2.03, if the
Company shall determine that any payment made outside the United States by the
Company or any of its paying agents in respect of any Bearer Security or Coupon,
if any, that is not a Floating Rate Security (an "Affected Security") would,
under any present or future laws or regulations of the United States, be subject
to any certification, documentation, information or other reporting requirement
of any kind, the effect of which requirement is the disclosure to the Company,
any paying agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United States
Alien (other than the certification requirements specified in Treas. Reg. 1.163-
5(c)(2)(i)(D)(3) and other than such a requirement (i) that would not be
applicable to a payment made by the Company or any one of its paying agents (A)
directly to the beneficial owner or (B) to a custodian, nominee or other agent
of the beneficial owner, or (ii) that can be satisfied by such custodian,
nominee or other agent certifying to the effect that the beneficial owner is a
United States Alien; provided, that, in any case referred to in clause (i)(B) or
--------
(ii), payment by the custodian, nominee or agent to the beneficial owner is not
otherwise subject to any such requirement), then the Company shall elect either
(x) to redeem such Affected Securities in whole, but not in part, at the
redemption price thereof (calculated without premium), plus interest accrued to
the redemption date, or (y) if the conditions of the next succeeding paragraph
are satisfied, to pay the additional interest specified in such paragraph. The
Company shall make such determination as soon as practicable and publish prompt
notice thereof in accordance with Section 12.03 (the "Determination Notice"),
stating the effective date of such certification, documentation, information or
other reporting requirement, whether the Company elects to redeem the Affected
Securities or to pay the additional interest
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<PAGE>
specified in the next succeeding paragraph and (if applicable) the last date by
which the redemption of the Affected Securities must take place, as provided in
the next succeeding sentence. If any Affected Securities are to be redeemed
pursuant to this paragraph, the redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Company shall specify by notice given to the Trustee at least 60 days before the
redemption date. Notice of such redemption shall be given to the Holders of the
Affected Securities not more than 60 days or less than 30 days prior to the
redemption date in accordance with Section 3.03. Notwithstanding the foregoing,
the Company shall not so redeem the Affected Securities if the Company shall
subsequently determine, not less than 30 days prior to the redemption date, that
subsequent payments on the Affected Securities would not be subject to any such
certification, documentation, information or other reporting requirement, in
which case the Company shall publish prompt notice of such subsequent
determination in accordance with Section 12.03, and any earlier redemption
notice given pursuant to this paragraph shall be revoked and of no further
effect. Prior to the publication of any Determination Notice pursuant to this
paragraph, the Company shall deliver to the Trustee (i) an Officers' Certificate
stating that the Company is entitled to make such determination and setting
forth a statement of facts showing that the conditions precedent to the
obligation of the Company to redeem the Affected Securities or to pay the
additional interest specified in the next succeeding paragraph have occurred and
(ii) an Opinion of Counsel to the effect that such conditions have occurred.
If and so long as the certification, documentation, information or
other reporting requirement referred to in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect to pay as additional interest such amounts as may be necessary
so that every net payment made outside the United States following the effective
date of such requirement by the Company or any of its paying agents in respect
of any Affected Security of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any paying agent or any
governmental authority) (after deduction or withholding for or on account of
such backup withholding tax or similar charge that (i) would not be applicable
in the circumstances referred to in the parenthetical clause of the first
sentence of the preceding paragraph or (ii) is imposed as a result of
presentation of any such Affected Security for payment more than 15 days after
the date on which such payment became due and payable or on which payment
thereof was duly provided for, whichever occurred later), will not be less than
the amount provided in any such Affected Security to be then due and payable.
If the Company elects to pay additional interest pursuant to this paragraph, the
Company shall have the right to redeem the Affected Securities at any time in
whole, but not in part, at the redemption price thereof (calculated without
premium), plus interest accrued to the redemption date, subject to the
provisions of the last three sentences of the immediately preceding paragraph.
If the Company elects to pay additional interest pursuant to this paragraph and
the condition specified in the first sentence of this paragraph should no longer
be satisfied, then the Company shall redeem
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the Affected Securities in whole, but not in part, at the redemption price
thereof (calculated without premium), plus interest accrued to the redemption
date, subject to the provisions of the last three sentences of the immediately
preceding paragraph. Any redemption payments made by the Company pursuant to the
two immediately preceding sentences shall be subject to the continuing
obligation of the Company to pay additional interest pursuant to this paragraph.
If the Company elects to, or is required to, redeem the Affected Securities
pursuant to this paragraph, it shall publish prompt notice thereof in accordance
with Section 12.03 . If the Affected Securities are to be redeemed pursuant to
this paragraph, the redemption shall take place on such date, not later than one
year after publication of the notice of redemption, as the Company shall specify
by notice to the Trustee at least 60 days prior to the redemption date.
SECTION 3.03. Notice of Redemption; Selection of Debt Securities. In
---------------------------------------------------
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Debt Securities of any series in accordance with
their terms, the Company shall notify the Trustee and deliver certain documents
as set forth in the third paragraph of this Section 3.03 and shall fix a date
for redemption and shall give notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to the Holders of Debt
Securities of such series so to be redeemed as a whole or in part, in the manner
provided in Section 12.03. The notice if given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, failure to give such notice or any
defect in the notice to the Holder of any Debt Security of a series designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which Debt Securities of such series are to
be redeemed, the Place or Places of Payment that payment will be made upon
presentation and surrender of such Debt Securities, that any interest accrued to
the date fixed for redemption will be paid as specified in said notice, that the
redemption is for a sinking fund payment (if applicable), that, unless otherwise
specified in such notice, Coupon Securities of any series, if any, surrendered
for redemption must be accompanied by all Coupons maturing subsequent to the
date fixed for redemption, failing which the amount of any such missing Coupon
or Coupons will be deducted from the redemption price, if the Bearer Securities
of any series are to be redeemed and any Registered Securities of such series
are not to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on the applicable redemption
date pursuant to Section 2.15(c) or otherwise, the last date on which such
exchanges may be made, that, unless the Company defaults in making such
redemption payment or the paying agent is prohibited from making such payment
pursuant to the terms of this Indenture, on and after the redemption date any
interest thereon or on the portions thereof to be redeemed will cease to accrue,
that in the case of Original Issue Discount Securities, original issue discount
accrued after the date fixed for redemption will cease to accrue,
33
<PAGE>
and the terms of the Debt Securities of that series pursuant to which the Debt
Securities of that series are being redeemed. If less than all the Debt
Securities of a series are to be redeemed the notice of redemption shall specify
the CUSIP numbers of the Debt Securities of that series to be redeemed. In case
any Debt Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Debt Security, a new Debt Security or Debt Securities of that
series in principal amount equal to the unredeemed portion thereof, and with
appropriate Coupons, will be issued.
At least 60 days before the redemption date unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of
the redemption date, the principal amount of Debt Securities to be redeemed and
the series and terms of the Debt Securities pursuant to which such redemption
will occur. Such notice shall be accompanied by an Officers' Certificate (which
shall be signed by the Chief Executive Officer, Chief Financial Officer or Chief
Accounting Officer of the Company) and an Opinion of Counsel from the Company to
the effect that such redemption will comply with the conditions herein. If fewer
than all the Debt Securities of a series are to be redeemed, the record date
relating to such redemption shall be selected by the Company and given to the
Trustee, which record date shall be not less than 15 days after the date of
notice to the Trustee.
On or prior to the redemption date for any Registered 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) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price, plus interest accrued to the redemption date, of such Registered
Securities or any portions thereof that are to be redeemed on that date. In the
case of any redemption pertaining to Bearer Securities or Coupon Securities, the
Company shall, no later than the business day prior to such redemption date,
deposit with the Trustee or with a paying agent (other than the Company) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price, plus interest accrued to the redemption date, of such Bearer Securities
or Coupon Securities or any portion thereof that are to be redeemed on the
redemption date.
If less than all the Debt Securities of like tenor and terms of a
series are to be redeemed (other than pursuant to mandatory sinking fund
redemptions) the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debt Securities of that series or
portions thereof (in multiples of $1,000) to be redeemed. In any case where
more than one Registered 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 Registered 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
34
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principal amount thereof to be redeemed. If any Debt Security called for
redemption shall not be so paid upon surrender thereof on such redemption date,
the principal, premium, if any, and interest shall bear interest until paid from
the redemption date at the rate borne by the Debt Securities of that series. If
less than all the Debt Securities of unlike tenor and terms of a series are to
be redeemed, the particular Debt Securities to be redeemed shall be selected by
the Company. Provisions of this Indenture that apply to Debt Securities called
for redemption also apply to portions of Debt Securities called for redemption.
SECTION 3.04. Payment of Debt Securities Called for Redemption. If
-------------------------------------------------
notice of redemption has been given as provided in Section 3.03, the Debt
Securities or portions of Debt Securities of the series with respect to which
such notice has been given shall become due and payable on the date and at the
Place or Places of Payment stated in such notice at the applicable redemption
price, together with any interest accrued to the date fixed for redemption, and
on and after said date (unless the Company shall default in the payment of such
Debt Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue, any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue and any Coupons for such interest appertaining to any Coupon
Securities to be redeemed, except to the extent described below, shall be void.
On presentation and surrender of such Debt Securities at the Place or Places of
Payment in said notice specified, the said Debt Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with any interest accrued thereon to the date fixed
for redemption (except for interest accrued in respect of any Debt Securities or
portions thereof called for redemption that have been delivered by the Company
to the Trustee for cancellation).
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
applicable redemption date, the redemption price for such Coupon Security may be
reduced by an amount equal to the face amount of all such missing Coupons. If
thereafter the Holder of such Coupon shall surrender to any paying agent outside
the United States any such missing Coupon in respect of which a deduction shall
have been made from the redemption price, such Holder shall be entitled to
receive the amount so deducted. The surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any paying
agent harmless.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the corporate trust office of the Trustee or such other office or
agency of the Company as is specified pursuant to Section 2.03 (in the case of
Registered Securities) and at the principal London office of the Trustee or such
other office or agency of the Company outside the United States as is specified
pursuant to Section 2.03 (in the case of Bearer
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Securities) with, if the Company, the Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company, the Registrar and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing, and the Company shall execute, and,
upon receipt of a Company Order requesting authentication and delivery, 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, and, in
the case of a Coupon Security, with appropriate Coupons attached; except that if
a Global Security is so surrendered, the Company shall execute, and, upon
receipt of a Company Order requesting authentication and delivery, the Trustee
shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global 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.
SECTION 3.05. Mandatory and Optional Sinking Funds. The minimum
-------------------------------------
amount of any sinking fund payment provided for by the terms of Debt Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of Debt
Securities of any series is herein referred to as an "optional sinking fund
payment".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Debt Securities of that series
(together with the unmatured Coupons, if any, appertaining thereto) theretofore
purchased or otherwise acquired by the Company or (b) receive credit for the
principal amount of Debt Securities of that series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities; provided, that such Debt
--------
Securities have not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 3.06. Redemption of Debt Securities for Sinking Fund. Not
-----------------------------------------------
less than 60 days prior to each sinking fund payment date for any series of Debt
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Debt Securities of
such series are denominated (except as provided
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pursuant to Section 2.03) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Debt Securities of that series pursuant to
this Section 3.06 (which Debt Securities, if not previously redeemed, will
accompany such certificate) and whether the Company intends to exercise its
right to make any permitted optional sinking fund payment with respect to such
series. Such certificate shall also state that no Event of Default has occurred
and is continuing with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company to deliver such
certificate (or to deliver the Debt Securities and Coupons, if any, specified in
this paragraph) shall not constitute a Default, but such failure shall require
that the sinking fund payment due on the next succeeding sinking fund payment
date for that series shall be paid entirely in cash and shall be sufficient to
redeem the principal amount of such Debt Securities subject to a mandatory
sinking fund payment without the option to deliver or credit Debt Securities as
provided in this Section 3.06 and without the right to make any optional sinking
fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the redemption price specified by the terms of such
Debt Securities for operation of the sinking fund together with any accrued
interest to the date fixed for redemption. Any sinking fund moneys not so
applied or allocated by the Trustee to the redemption of Debt Securities shall
be added to the next cash sinking fund payment received by the Trustee for such
series and, together with such payment, shall be applied in accordance with the
provisions of this Section 3.06. Any and all sinking fund moneys with respect
to the Debt Securities of any particular series held by the Trustee on the last
sinking fund payment date with respect to Debt Securities of such series and not
held for the payment or redemption of particular Debt Securities shall be
applied by the Trustee, together with other moneys, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the
Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.03 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.04.
37
<PAGE>
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own paying
agent, the Company shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) equal to any interest accrued to the date
fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.06.
The Trustee shall not redeem any Debt Securities of a series with
sinking fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Debt Securities, except that if the notice of
redemption of any such Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such Default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such Default or
Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Event of Default or Default shall have been
- -------- -------
cured or waived as provided herein, such moneys shall thereafter be applied on
the next sinking fund payment date for such Debt Securities on which such moneys
may be applied pursuant to the provisions of this Section 3.06.
ARTICLE IV
Covenants of the Company
------------------------
SECTION 4.01. Payment of Principal of, and Premium, If Any, and
-------------------------------------------------
Interest on, Debt Securities. The Company, for the benefit of each series of
- -----------------------------
Debt Securities, will duly and punctually pay or cause to be paid the principal
of, and premium, if any, and interest on, each of the Debt Securities and pay
any Coupons at the Place of Payment, at the respective times and in the manner
provided herein, in the Debt Securities and in the Coupons. Each installment of
interest on the Registered Securities may, at the Company's option, be paid by
mailing checks for such interest payable to the Person entitled thereto pursuant
to Section 2.07(a) to the address of such Person as it appears on the Debt
Security Register, or if provided by the terms of the Registered Securities
pursuant to Section 2.03 and in accordance with arrangements satisfactory to the
Trustee, at the option of the Registered Holder by wire transfer to an account
designated by the Registered Holder. Any interest due on Coupon Securities on
or before the Stated Maturity of the related Debt Security, other than
additional interest, if any, payable as provided in Section 4.06 in respect of
principal of, or premium, if any, on such
38
<PAGE>
a Debt Security, shall be payable only upon presentation and surrender of the
several Coupons for such interest installments as are evidenced thereby as they
severally mature. Payments of principal of or premium, if any, on any Debt
Security shall be payable only upon presentation and surrender of the Debt
Security.
Principal, premium and interest of Debt Securities of any series shall
be considered paid on the date due if on such date the Trustee or any paying
agent holds in accordance with this Indenture money sufficient to pay in the
Currency in which the Debt Securities of such series are denominated with
respect to Bearer Securities or in Dollars with respect to Registered Securities
(in each case, except as otherwise provided pursuant to Section 2.03) all
principal, premium and interest then due.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
------------------------------------------------------
Transfer, Exchange and Payment of Debt Securities. The Company will maintain in
- --------------------------------------------------
each Place of Payment for any series of Debt Securities and Coupons, if any, an
office or agency where Debt Securities and Coupons of such series (but, except
as otherwise provided in Section 2.12, unless such Place of Payment is located
outside the United States, not Bearer Securities or Coupons) may be presented or
surrendered for payment, where Debt Securities of such series may be surrendered
for transfer or exchange and where notices and demands to or upon the Company in
respect of the Debt Securities and Coupons of such series and this Indenture may
be served. So long as any Bearer Securities of any series remain outstanding,
the Company will maintain for such purposes one or more offices or agencies
outside the United States in such city or cities specified pursuant to Section
2.03 and, if any Bearer Securities are listed on a securities exchange that
requires an office or agency for the payment of principal of, and premium, if
any, or interest on, such Bearer Securities in a location other than the
location of an office or agency specified pursuant to Section 2.03, the Company
will maintain for such purposes an office or agency in such location so long as
any Bearer Securities are listed on such securities exchange and such exchange
so requires. 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 (in the case of Registered Securities) and at the
principal London office of the Trustee (in the case of Bearer Securities), and
the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designation; provided, however,
-------- -------
39
<PAGE>
that no such designation or rescission shall in any manner relieve the Company
of its obligations described in the preceding paragraph. The Company will give
prompt written notice to the Trustee of any such additional designation or
rescission of designation and any change in the location of any such different
or additional office or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
------------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder with respect to each series
of Debt Securities.
SECTION 4.04. Duties of Paying Agents, etc.. (a) The Company shall
------------------------------
cause each paying agent, if any, other than the Trustee, to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series and the payment of any related Coupons (whether
such sums have been paid to it by the Company or by any other obligor on
the Debt Securities or Coupons of such series) in trust for the benefit of
the Holders of the Debt Securities and Coupons of such series;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities or Coupons of such
series) to make any payment of the principal of, and premium, if any, or
interest on, the Debt Securities of such series or any payment on any
related Coupons when the same shall be due and payable; and
(iii) that it will at any time during the continuance of an Event
of Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, and premium, if any, or interest on,
the Debt Securities and Coupons, if any, of any series, set aside, segregate and
hold in trust for the benefit of the Holders of the Debt Securities and Coupons
of such series a sum sufficient to pay such principal, premium, if any, or
interest so becoming due. The Company will promptly notify the Trustee of any
failure by the Company to take such action or the failure by any other obligor
on such Debt Securities or Coupons to make any payment of the principal of, and
premium, if any, or interest on, such Debt Securities or Coupons when the same
shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of
40
<PAGE>
this Indenture, or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by it or any paying agent, as required by this Section
4.04, 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.
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities and Coupons, it will, prior to each due
date of the principal of, 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, premium 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.
(e) Anything in this Section 4.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.04 is subject
to the provisions of Section 11.05.
(f) The Company initially appoints the Trustee as the paying agent
hereunder.
SECTION 4.05. Statement by Officers 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 (currently on a calendar year basis)
ending after the date hereof, an Officers' Certificate stating, as to each
officer signing such certificate, that (i) in the course of his performance of
his duties as an officer of the Company he would normally have knowledge of any
Default, (ii) whether or not to the best of his knowledge any Default occurred
during such year and (iii) if to the best of his knowledge the Company is in
Default, specifying all such Defaults and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.06. Payment of Additional Interest. Unless otherwise
-------------------------------
provided pursuant to Section 2.03, the provisions of this Section 4.06 shall be
applicable to Bearer Securities of any series.
The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest to the Holder of any Bearer Security or Coupon
that is a United States Alien such amounts as may be necessary so that every net
payment on such Bearer Security or Coupon, after deduction or withholding for or
on account of any present or future tax, assessment or other governmental charge
by the United States (or any political subdivision or taxing authority thereof
or therein) imposed upon or as a result of such payment, will not be less than
the amount provided in such Bearer Security or Coupon to be then due and
payable. However, the Company will not be required to make any such payment of
additional interest for or on account of:
41
<PAGE>
(a) any tax, assessment or other governmental charge that would not
have been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor or beneficiary of, or a
Person holding a power over, such Holder, if such Holder is an estate or a
trust, or a member or shareholder of such Holder, if such Holder is a
partnership or corporation) and the United States, including such Holder (or
such fiduciary, settlor, beneficiary, Person holding a power, member or
shareholder) being or having been a citizen or resident thereof or being or
having been engaged in trade or business or present therein or having or having
had a permanent establishment therein or (ii) such Holder's past or present
status as a personal holding company, foreign personal holding company or
private foundation or other tax-exempt organization with respect to the United
States or as a corporation that accumulates earnings to avoid United States
Federal income tax;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge that would not
have been imposed but for the presentation by the Holder of a Bearer Security or
Coupon for payment more than 15 days after the date on which such payment became
due and payable or on which payment thereof was duly provided for, whichever
occurs later;
(d) any tax, assessment or other governmental charge that is payable
otherwise than by deduction or withholding from a payment on a Bearer Security
or Coupon;
(e) any tax, assessment or other governmental charge which is
required to be deducted or withheld from a payment on a Bearer Security or
Coupon because such payment is made by or through a U.S. middleman (as defined
in Proposed Treasury Regulation Section 1.6049-5(d)(1)) that, as a custodian or
nominee of the Holder, collects the payment for, or on behalf of, the Holder;
(f) any tax, assessment or other governmental charge that would not
have been imposed but for a failure to comply with applicable certification,
documentation, information or other reporting requirement concerning the
nationality, residence, identity or connection with the United States of the
Holder or beneficial owner of a Bearer Security or Coupon if, without regard to
any tax treaty, such compliance is required by statute or regulation of the
United States as a precondition to relief or exemption from such tax, assessment
or other governmental charge;
(g) any tax, assessment or other governmental charge imposed on a
Holder that actually or constructively owns ten percent or more of the combined
voting power of all classes of stock of the Company or that is a controlled
foreign corporation related to the Company through stock ownership; or
42
<PAGE>
(h) any tax, assessment, or other governmental charge imposed on a
Holder that is a foreign bank pursuant to a determination that amounts paid or
accrued with respect to a Bearer Security or Coupon constitute interest received
by the bank on an extension of credit made pursuant to a loan agreement entered
into in the ordinary course of the bank's trade or business (within the meaning
of Section 881(c)(3)(A) of the Code);
nor shall additional interest be paid with respect to a payment on a Bearer
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent a beneficiary or settlor
with respect to such fiduciary or a member of such partnership or a beneficial
owner would not have been entitled to the additional interest had such
beneficiary, settlor, member or beneficial owner been the Holder of such Bearer
Security or Coupon.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, or premium, if any, or interest on, any Debt
Security or payment with respect to any Coupon of any series, such mention shall
be deemed to include mention of the payment of additional interest provided for
in the terms of such Debt Securities and this Section 4.06 to the extent that,
in such context, additional interest is, was or would be payable in respect
thereof pursuant to the provisions of this Section 4.06 and express mention of
the payment of additional interest (if applicable) in any provisions hereof
shall not be construed as excluding additional interest in those provisions
hereof where such express mention is not made.
If the payment of additional interest becomes required in respect of
the Debt Securities of a series, at least ten days prior to the first interest
payment date with respect to which such additional interest will be payable (or
if the Debt Securities of that series will not bear interest prior to its Stated
Maturity, the first day on which a payment of principal, and premium, if any, is
made and on which such additional interest will be payable), and at least ten
days prior to each date of payment of principal, and premium, if any, or
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers' Certificate, the Company will furnish the Trustee
and each paying agent with an Officers' Certificate that shall specify by
country the amount, if any, required to be withheld on such payments to Holders
of Debt Securities or Coupons that are United States Aliens, and the Company
will pay to the Trustee or such paying agent the additional interest, if any,
required by the terms of such Debt Securities and this Section 4.06. The
Company covenants to indemnify the Trustee and any paying agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section 4.06.
SECTION 4.07. Limitation on Liens. The Company will not itself, and
--------------------
will not permit any Restricted Subsidiary to, incur, issue, assume or guarantee
any notes,
43
<PAGE>
bonds, debentures or other similar evidences of indebtedness for money borrowed
(notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed being hereinafter called "Debt") secured by pledge of, or mortgage or
other lien on, any Real Property of the Company or any Restricted Subsidiary, or
any shares of stock or Debt of any Restricted Subsidiary (pledges, mortgages and
other liens being hereinafter called "Mortgage" or "Mortgages"), without
effectively providing that the Debt Securities (together with, if the Company
shall so determine, any other Debt of the Company or that Restricted Subsidiary
then existing or thereafter created that is not subordinate to such Securities)
shall be secured equally and ratably with (or prior to) such secured Debt (for
the purpose of providing such equal and ratable security the principal amount of
such Debt Securities shall mean and shall not be less than that principal amount
which could be declared to be due and payable pursuant to Section 6.01 on the
date of the making of such effective provision and the extent of such equal and
ratable security shall be adjusted, to the extent permitted by law, as and when
that principal amount changes over time pursuant to Section 6.01 and any other
provision hereof), so long as such secured Debt shall be so secured, unless,
after giving effect thereto, the aggregate amount of all such secured Debt plus
all Attributable Debt of the Company and its Restricted Subsidiaries in respect
of Sale and Leaseback Transactions (other than such Sale and Leaseback
Transactions the proceeds of which are applied to reduce indebtedness under
clause (2) of Section 4.08) would not exceed 10% of Consolidated Net Tangible
Assets; provided, however, that this Section shall not apply to, and there shall
be excluded from secured Debt in any computation under this Section, Debt
secured by:
(1) Mortgages existing as of the date of this Indenture;
(2) Mortgages on property of, or on any shares of stock (or other
interest in) or Debt of, any corporation, association, partnership or other
entity existing at the time such entity becomes a Restricted Subsidiary or
an obligor under this Indenture;
(3) Mortgages in favor of the Company or any Restricted Subsidiary by
a Restricted Subsidiary;
(4) Mortgages (including the assignment of moneys due or to become due
thereon) in favor of the United States of America or any state thereof, or
any agency, department or other instrumentality thereof, to secure
progress, advance or other payments pursuant to any contract or provision
of any statute;
(5) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price, construction cost, or development cost thereof or to secure any Debt
incurred prior to, at the time of, or within 360 days after, the
acquisition of such property or shares or Debt or the completion of any
such construction or development for the purpose of financing all
44
<PAGE>
or any part of the purchase price or construction cost or development cost
thereof; and
(6) any extension, renewal or refinancing (or successive extensions,
renewals or refinancings), as a whole or in part, of any Mortgage referred
to in the foregoing clauses (1) to (5), inclusive; provided, however, that
(i) such extension, renewal or refinancing Mortgage shall be limited to all
or a part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or refinanced (plus improvements on such
property) and (ii) the principal amount of Debt secured by such Mortgage at
such time is not increased in an amount exceeding 105% thereof.
SECTION 4.08. Limitation on Sales and Leasebacks. The Company will
-----------------------------------
not itself, and it will not permit any Restricted Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or investor (not
including the Company or any Restricted Subsidiary) or to which any such lender
or investor is a party, providing for the leasing by the Company or any such
Restricted Subsidiary for a period, including renewals, in excess of three years
of any Real Property that has been or is to be sold or transferred, more than
360 days after the completion of construction and commencement of full operation
thereof, by the Company or any such Restricted Subsidiary to such lender or
investor or to any Person to whom funds have been or are to be advanced by such
lender or investor on the security of such Real Property (herein referred to as
a "Sale and Leaseback Transaction") unless either:
(1) the Company or such Restricted Subsidiary could create Debt
secured by a Mortgage pursuant to Section 4.07 on the Real Property to be
leased back in an amount equal to the Attributable Debt with respect to
such Sale and Leaseback Transaction without equally and ratably securing
the Securities, or
(2) the Company or such Restricted Subsidiary within 120 days after
the sale or transfer shall have been made by the Company or by any such
Restricted Subsidiary, applies an amount equal to the net proceeds of the
sale of the Real Property sold and leased back pursuant to such arrangement
to the retirement of Debt Securities or Funded Debt of the Company or any
of its Restricted Subsidiaries.
SECTION 4.09. Waiver of Certain Covenants. The Company may omit in
----------------------------
any particular instance to comply with any term, provision or condition set
forth in Sections 4.07 and 4.08 with respect to the Debt Securities of any
series if before or after the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Debt Securities of
such series shall either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the
45
<PAGE>
Company in respect of any such term, provision or condition shall remain in full
force and effect.
SECTION 4.10. Existence. Other than in connection with a transaction
----------
permitted pursuant to Article X, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if an
officer of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the Company's business.
SECTION 4.11. Further Instruments and Acts. The Company will, upon
-----------------------------
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
ARTICLE V
Holders' Lists and Reports
--------------------------
by the Company and the Trustee
------------------------------
SECTION 5.01. Company to Furnish Trustee Information as to Names and
------------------------------------------------------
Addresses of Holders; Preservation of Information. The Company covenants and
- --------------------------------------------------
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as
of such record date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and contents as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
- -------- -------
lists shall not be required to be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its paying agents other than the Trustee as to the names and
addresses of the Bearer Holders of all series; provided, however, that the
-------- -------
Company shall have no obligation to investigate any matter relating to any
Bearer Holders.
46
<PAGE>
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list furnished to it as provided in this Section
5.01 or (2) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 5.01 upon receipt of a new list so furnished.
SECTION 5.02. Communications to Holders. Holders may communicate
--------------------------
pursuant to Section 312(b) of the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Debt Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.
SECTION 5.03. Reports by Company. (a) The Company covenants and
-------------------
agrees, and any obligor hereunder shall covenant and agree, to file with the
Trustee and the Holders (in the manner and to the extent provided in Section
5.04), within 15 days after the Company or such obligor, as the case may be, is
required to file the same with the Securities and Exchange Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company or such obligor,
as the case may be, may be required to file with said Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company or such
obligor, as the case may be, is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee, the
Holders (in the manner and to the extent provided in Section 5.04) and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees, and any obligor hereunder shall
covenant and agree, to file with the Trustee, the Holders (in the manner and to
the extent provided in Section 5.04) and the Securities and Exchange Commission,
in accordance with the rules and regulations prescribed from time to time by
said Commission, such additional information, documents, and reports with
respect to compliance by the Company or such obligor, as the case may be, with
the conditions and covenants provided for in this Indenture as may be required
from time to time by such rules and regulations.
SECTION 5.04. Reports by Trustee. As promptly as practicable after
-------------------
each January 1 beginning with the January 1 following the date of this
Indenture, and in
47
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any event prior to March 1 in each year, the Trustee shall mail to each Holder a
brief report dated as of December 31 of the prior year if and to the extent
required by Section 313(a) of the Trust Indenture Act. The Trustee also shall
comply with Section 313(b) of the Trust Indenture Act.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of such
Holders appear in the Debt Security Register;
(2) to such Bearer Holders of any series as have, within two years
preceding such transmission, filed their names and addresses with the
Trustee for such series for that purpose; and
(3) except in the cases of reports under Section 313(b)(2) of the
Trust Indenture Act, 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 Section 5.02.
A copy of each report at the time of its mailing to Holders shall be
filed with the Securities and Exchange Commission and each stock exchange (if
any) on which the Debt Securities of any series are listed. The Company agrees
to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Company
-----------------------------------
shall solicit from the Holders of Debt Securities of any series any action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action), the Company may,
at its option, by resolution of the Board of Directors, fix in advance a record
date for the determination of Holders of Debt Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed,
such action may be sought or given before or after the record date, but only the
Holders of Debt Securities of record at the close of business on such record
date shall be deemed to be Holders of Debt Securities for the purpose of
determining whether Holders of the requisite proportion of Debt Securities of
such series Outstanding have authorized or agreed or consented to such action,
and for that purpose the Debt Securities of such series Outstanding shall be
computed as of such record date.
48
<PAGE>
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default. If any one or more of the following
------------------
shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an "Event of Default"):
(a) default in the payment of any installment of interest upon any
Debt Securities of that series or any payment with respect to the related
Coupons, if any, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on
any Debt Securities of that series as and when the same shall become due
and payable, whether at maturity, upon redemption, by declaration, upon
required repurchase or otherwise; or
(c) default in the payment of any sinking fund payment with respect
to any Debt Securities of that series as and when the same shall become due
and payable; or
(d) default in the performance, or breach, of any covenant of the
Company in this Indenture, including failure on the part of the Company to
comply with Article X, (other than a covenant or a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of a series of Debt Securities other than that series), and
continuance of such default or breach for a period of 90 days after the
date on which written notice specifying such failure, stating that such
notice is a "notice of default" hereunder, and requiring the Company to
remedy the same shall have 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 25% in aggregate principal amount of the Debt Securities of
that series at the time Outstanding; or
(e) if an event of default as defined in any mortgage, indenture,
bonds, debentures, notes or instrument under which there may be issued, or
by which there may be secured or evidenced, any indebtedness of the Company
for money borrowed, whether such indebtedness now exists or shall hereafter
be created, shall happen and shall result in more than $50,000,000 (or its
equivalent in any other currency) in principal amount of such indebtedness
becoming or being declared due and payable before the date on which it
would otherwise become due and payable, and that acceleration shall not be
rescinded or annulled, or that indebtedness shall not have been discharged,
within a period of 10 days after there has been given, by
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registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Debt Securities of that series at the time outstanding a written
notice specifying the event of default and requiring the Company to cause
the acceleration to be rescinded or annulled or to cause that indebtedness
to be discharged and stating that such notice is a "notice of default"
hereunder; or
(f) the Company shall (i) voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of the United States Code or any
other Federal or State bankruptcy, insolvency or similar law, (ii) consent
to the institution of, or fail to controvert within the time and in the
manner prescribed by law, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or for
a substantial part of its property, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) admit in
writing its inability or fail generally to pay its debts as they become
due, (vii) take corporate action for the purpose of effecting any of the
foregoing, or (viii) take any comparable action under any foreign laws
relating to insolvency; or
(g) the entry of an order or decree by a court having competent
jurisdiction in the premises for (i) relief in respect of the Company or a
substantial part of any of its property under Title 11 of the United States
Code or any other Federal or State bankruptcy, insolvency or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator or
similar official for the Company or for a substantial part of any of its
property or (iii) the winding-up or liquidation of the Company, and such
order or decree shall continue unstayed and in effect for 60 consecutive
days; or any similar relief is granted under any foreign laws and the order
or decree stays in effect for 60 consecutive days; or
(h) any other Event of Default provided with respect to Debt
Securities of that series;
then and in each and every case that an Event of Default described in clause
(a), (b), (c), (d), (e) or (h) with respect to Debt Securities of that series at
the time Outstanding occurs and is continuing, unless the principal of and
interest on all the Debt Securities of that series shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the principal of (or, if the Debt Securities of that
series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of that series) and interest
on all the Debt Securities of that series to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Debt
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Securities or Coupons appertaining thereto of that series contained to the
contrary notwithstanding. If an Event of Default described in clause (f) or (g)
occurs, then and in each and every such case, unless the principal of and
interest on all the Debt Securities shall have become due and payable, the
principal of (or, if any Debt Securities are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms thereto) and interest on all the Debt Securities then Outstanding
hereunder shall ipso facto become and be immediately due and payable without any
---- -----
declaration or other act on the part of the Trustee or any Holders, anything in
this Indenture or in the Debt Securities contained to the contrary
notwithstanding.
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The Holders of a majority in principal amount of the Debt Securities
of a particular series by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree already rendered and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. Upon any such rescission, the parties hereto shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the parties hereto shall continue as though no
such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (d), (e) or (h) indicating its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc.. If an
--------------------------------------------
Event of Default occurs and is continuing, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid or enforce the performance of any provision of the Debt Securities of
the affected series or this
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Indenture, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
any other obligor upon the Debt Securities, and the Coupons, if any,
appertaining thereto, of such series (and collect in the manner provided by law
out of the property of the Company or any other obligor wherever situated upon
the Debt Securities and Coupons of such series) the moneys adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Debt Securities
and Coupons, if any, of any series under Title 11 of the United States Code or
any other Federal or State bankruptcy, insolvency or similar law, or in case a
receiver, trustee or other similar official shall have been appointed for its
property, or in case of any other similar judicial proceedings relative to the
Company or any other obligor upon the Debt Securities of any series, its
creditors or its property, the Trustee, irrespective of whether the principal of
Debt Securities and Coupons, if any, of any series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, and interest (or, if the Debt Securities
of such series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series) owing and
unpaid in respect of the Debt Securities and Coupons 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 reasonable compensation to
the Trustee, its agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith) and of the Holders thereof allowed
in any such judicial proceedings relative to the Company, or any other obligor
upon the Debt Securities and Coupons of such series, its creditors or its
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of such Holders and of the Trustee on their behalf, and
any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of such Holders to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of payments directly to such
Holders, to pay to the Trustee such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other reasonable expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities and the Coupons, if any, appertaining thereto,
of any series, may be enforced by the Trustee without the possession of any such
Debt Securities or Coupons, or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name
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as trustee of an express trust, and any recovery of judgment (except for any
amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities or Coupons in respect
of which such action was taken.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys
-------------------------------------------
collected by the Trustee pursuant to Section 6.02 with respect to Debt
Securities and Coupons, if any, of any series shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Debt Securities or Coupons of such
series in respect of which moneys have 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 money due the Trustee pursuant to
Section 7.06;
SECOND: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall not have become due,
to the payment of interest on the Debt Securities or Coupons of such series
in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Debt Securities) borne by
the Debt Securities or Coupons of such series, such payments to be made
ratably to the Persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Debt Securities or Coupons of such series for principal and
premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the rate or Yield
to Maturity (in the case of Original Issue Discount Debt Securities) borne
by the Debt Securities or Coupons of such series; and, in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid
upon the Debt Securities and Coupons of such series, then to the payment of
such principal and premium, if any, and interest,
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without preference or priority of principal and premium, if any, over
interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any
Debt Security or Coupon of such series over any Debt Security or Coupon of
such series, ratably to the aggregate of such principal and premium, if
any, and interest; and
FOURTH: The remainder, if any, shall be paid to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.03. At least 15 days before such record
date, the Company shall mail to each Holder and the Trustee a notice that states
the record date, the payment date and amount to be paid.
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt
-------------------------------
Security or Coupon of any series shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or proceeding at law
or in equity or in bankruptcy or otherwise, upon or under or with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to Debt Securities of
that same series and of the continuance thereof and unless the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debt Securities
of that series shall have made written request upon the Trustee to institute
such action or proceedings in respect of such Event of Default in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security or Coupon with every other Holder and the Trustee, that no one or
more Holders shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any Holders, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all such Holders. For the protection and enforcement of the
provisions of this Section 6.04, each and every Holder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the
right of any Holder of any Debt Security or Coupon to receive payment of the
principal of, and premium, if any, and (subject to Section 2.12) interest on,
such Debt Security or Coupon, on or after the respective due dates expressed in
such Debt Security, and to institute suit
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<PAGE>
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
-----------------------------------------------------
Rights Not a Waiver of Default. All powers and remedies given by this Article
- -------------------------------
VI to the Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such Default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
----------------------------------------------------
Debt Securities to Direct Trustee and to Waive Default. The Holders of a
- -------------------------------------------------------
majority in aggregate principal amount of the Debt Securities of any series at
the time Outstanding 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, however, that such direction shall not be
-------- -------
otherwise than in accordance with law and the provisions of this Indenture, and
that subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided, further, however, that nothing in this Indenture contained shall
-------- ------- -------
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities and any related Coupons of that series waive
any past Default or Event of Default and its consequences for that series
specified in the terms thereof as contemplated by Section 2.03, except (i) a
Default in the payment of the principal of, and premium, if any, or interest on,
any of the Debt Securities or in the payment of any related Coupon and (ii) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected thereby. In case of any such
waiver, such Default shall cease to exist, any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture, and the Company, the Trustee and the Holders of the Debt Securities
of that series shall be restored to their former positions
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<PAGE>
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
-------------------------------------------------------
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90
- ----------------------------------------------
days after the occurrence of a Default known to it with respect to a series of
Debt Securities or Coupons, if any, give to the Holders thereof, in the manner
provided in Section 12.03, notice of all Defaults with respect to such series
known to the Trustee, unless such Defaults shall have been cured or waived
before the giving of such notice; provided, that, except in the case of Default
--------
in the payment of the principal of, or premium, if any, or interest on, any of
the Debt Securities or Coupons of such series or in the making of any sinking
fund payment with respect to the 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 committee of directors or responsible
officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders thereof and provided further that, in
-------- -------
the case of any Default as described in Section 6.01(d) with respect to Debt
Securities of such series, no such notice to Holders of Debt securities of such
series shall be given until the 90th day after the date of the notice specified
in such Section shall have been given. Except with respect to a Default or an
Event of Default pursuant to Section 6.01(a), (b) or (c), the Trustee will not
be charged with knowledge of any Default or Event of Default unless written
notice thereof shall have been given to a responsible officer by the Company or
any Holder and such notice references the Debt Securities generally, the Company
or this Indenture.
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain
-----------------------------------------------------
Suits under the Indenture or Against the Trustee. All parties to this Indenture
- -------------------------------------------------
agree, and each Holder of any Debt Security or Coupon by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit in the manner and to the extent provided in the Trust Indenture
Act, 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 6.08 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 ten percent in principal
amount of the Outstanding Debt Securities of that series or to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
or premium, if any, or interest on, any Debt Security or Coupon on or after the
due date for such payment expressed in such Debt Security or Coupon.
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ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and Responsibilities. The Trustee,
------------------------------------
prior to the occurrence of an Event of Default and after the curing or waiving
of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to
the Debt Securities of a series and after the curing or waiving of all
Events of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
Debt Securities and Coupons, if any, of any series shall be determined
solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and
obligations with respect to such series as are specifically set forth
in this Indenture, and no implied covenants or obligations with
respect to such series shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
57
<PAGE>
(c) the Trustee shall not be liable for an 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; and
(d) the Trustee shall not be liable with respect to any action taken
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 not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of that 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 with respect to Debt Securities of such series.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise
--------------------------
provided in Section 7.01:
(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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Order (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a
copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) whenever in the administration of the 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 provided) may, in the absence of bad
faith on its part, rely on an Officers' Certificate;
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(d) the Trustee may consult with counsel or require an Opinion of
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 or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of Debt Securities or Coupons of any series
pursuant to the provisions of this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
(f) the Trustee shall not be liable for any action taken or omitted
by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(g) prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, 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, approval, bond, debenture,
note, coupon, other evidence of indebtedness, or other paper or document,
unless requested in writing to do so by the Holders of a majority in
aggregate principal amount of the then Outstanding Debt Securities of a
series affected by such matter; provided, however, that if the payment
-------- -------
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is not, in the opinion of the Trustee, reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder;
(i) if any property other than cash shall at any time be subject to a
Lien in favor of the Holders, the Trustee, if and to the extent authorized
by a receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the
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purpose of preserving such property or of discharging tax Liens or other
prior Liens or encumbrances thereon; and
(j) for all purposes under this Indenture, the Trustee shall not be
deemed to have notice or knowledge of any Default or Event of Default
(other than under Section 6.01(a), (b) or (c)) unless written notice of
such Default or Event of Default is received by a responsible officer from
the Company or a Holder and such notice references the Debt Securities
generally, the Company or this Indenture.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
-------------------------------------------------------
Securities. The recitals contained herein, in the Debt Securities (except the
- -----------
Trustee's certificate of authentication) and in any Coupons shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. 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 or any prospectus related to the Debt Securities of any
series. The Trustee shall not be accountable for the use or application by the
Company of any of the Debt Securities or of the proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt
-----------------------------------------------
Securities. The Trustee or any paying agent or Registrar, in its individual or
- -----------
any other capacity, may become the owner or pledgee of Debt Securities or
Coupons and subject to the provisions of the Trust Indenture Act relating to
conflicts of interest and preferential claims may otherwise deal with the
Company with the same rights it would have if it were not Trustee, paying agent
or Registrar.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust.
-----------------------------------------------
Subject to the provisions of Section 11.05, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder. So long as no
Event of Default shall have and be continuing, all interest allowed on any such
moneys shall be paid from time to time to the Company upon a Company Order.
SECTION 7.06. Compensation and Reimbursement. The Company covenants
-------------------------------
and agrees to pay in Dollars to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
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regularly in its employ and including all costs, expenses and losses associated
with the payment of principal of, premium, if any, and interest on any Debt
Securities denominated in a Foreign Currency) except any such expense,
disbursement or advances as may arise from its negligence or bad faith. The
Company also covenants to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
willful misconduct or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim of liability in connection with the exercise or performance of
any of its powers or duties hereunder. The obligations of the Company under
this Section 7.06 to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be secured by a
Lien prior to that of the Debt Securities and Coupons, if any, upon all property
and funds held or collected by the Trustee, as such, except funds held in trust
for the payment of principal of, and premium, if any, or interest on, particular
Debt Securities and Coupons.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
----------------------------------------------------
Where No Other Evidence Specifically Prescribed. Except as otherwise provided
- ------------------------------------------------
in Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company
-----------------------------------------
may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
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(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee with respect to the affected series of Debt
Securities. No resignation or removal of the Trustee and no appointment of a
successor Trustee shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of this
Section 7.08.
If no successor Trustee with respect to the Debt Securities of any
series shall have been so appointed by the Company or the Holders and accepted
in the manner required by this Section 7.08, any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the Lien provided for
in Section 7.06. 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 to all Holders of Debt Securities of such series in the manner
provided in Section 12.03. Each notice shall include the name of the successor
Trustee with respect to the Debt Securities of such series and the address of
the corporate trust office of such successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
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If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series may 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.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.06 shall continue for
the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, any retiring Trustee and each successor or separate Trustee with
respect to the Debt Securities of any applicable series shall execute and
deliver an indenture supplemental hereto (1) which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of any retiring Trustee with respect to the Debt
Securities of any series as to which any such retiring Trustee is not retiring
shall continue to be vested in such retiring Trustee and (2) that shall add to
or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such separate, retiring or successor Trustee shall be
Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
----------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
------------------------------
all times satisfy the requirements of Section 310(a) of the Trust Indenture Act.
The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most
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recent published annual report of condition. No obligor upon the Debt Securities
or Coupons, if any, of a particular series or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve
as Trustee upon the Debt Securities and Coupons of such series. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act; provided, however,
--------- --------
that there shall be excluded from the operation of Section 310(b)(1) of the
Trust Indenture Act this Indenture or any indenture or indentures under which
other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion
set forth in Section 310(b)(1) of the Trust Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
--------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to
-------------------------
comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Registrar, paying
agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders. Whenever in this
------------------------------
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of any or all series may take action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in Person or by agent or proxy
appointed in writing, (b) by the record of the Holders voting in favor thereof
at any meeting of Holders duly called and held in accordance with the provisions
of Section 5.02 or (c) by a combination of such instrument or instruments and
any such record of such a meeting of Holders.
SECTION 8.02. Proof of Execution of Instruments and of Holding of
---------------------------------------------------
Debt Securities. Subject to the provisions of Sections 7.01, 7.02 and 12.11,
- ----------------
proof of the execution of any instrument by a Holder or his agent or proxy shall
be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee.
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The ownership of Registered Securities of any series shall be proved
by the Debt Security Register or by a certificate of the Registrar for such
series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state on the date thereof a
Bearer Security bearing a specified identifying number or other mark was
deposited with or exhibited to the Person executing such certificate by the
Person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the Person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other Person, (3) such Bearer Security shall have been
registered on the Debt Security Register, if, pursuant to Section 2.03, such
Bearer Security can be so registered, or (4) such Bearer Security shall have
been canceled or paid.
The Trustee may require such additional proof of
any matter referred to in this Section 8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to
-------------------------------------------
due presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Section
2.03) interest on such Registered Security and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Registrar shall
be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
The Company, the Trustee and any paying agent may deem and treat the
Holder of any Bearer Security or Coupon as the absolute owner of such Bearer
Security or Coupon (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and premium,
if any, and (subject to Section 2.03) interest on such Bearer Security or Coupon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent shall be affected by any notice to the contrary; and all such
payments so made to any such Holder for the time being, or upon
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his order, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Bearer Security or Coupon.
None of the Company, the Trustee, any paying agent or the Registrar
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
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 8.04. Instruments Executed by Holders Bind Future Holders.
----------------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Holder. Except as aforesaid, any such action taken by
the Holder of any Debt Security shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Debt Security and all past,
present and future Holders of Coupons, if any, appertaining thereto, and of any
Debt Security issued upon transfer 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 or Coupons. Any action
taken by the Holders of the percentage in aggregate principal amount of the Debt
Securities of any series specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Securities and Coupons of such series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
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ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental Indenture May Be
------------------------------------------------
Entered into Without Consent of Holders. The Company and the Trustee may from
- ----------------------------------------
time to time and at any time, without the consent of Holders, enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to evidence the succession pursuant to Article X of another
Person to the Company, or successive successions, and the assumption by the
Successor Company (as defined in Section 10.01) of the covenants,
agreements and obligations of the Company in this Indenture and in the Debt
Securities;
(b) to surrender any right or power herein conferred upon the
Company, to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
all or any series of Debt Securities and the Coupons, if any, appertaining
thereto (and if such covenants are to be for the benefit of less than all
series of Debt Securities, stating that such covenants are expressly being
included solely for the benefit of such series), and to make the
occurrence, or the occurrence and continuance, of a Default in any of such
additional covenants, restrictions, conditions or provisions a Default or
an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture; provided, that in respect of any such
--------
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after Default (which
period may be shorter or longer than that allowed in the case of other
Defaults) or may provide for an immediate enforcement upon such Default or
may limit the right of the Holders of a majority in aggregate principal
amount of any or all series of Debt Securities to waive such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein, in any supplemental indenture or in any Debt Security of
any series that may be defective or inconsistent with any other provision
contained herein, in any supplemental indenture or in the Debt Securities
of such series; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other provisions in regard
to matters or questions arising under this Indenture, provided that any
such action shall not adversely affect the interests of any Holders of Debt
Securities of any series;
(d) to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental hereto
under the
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Trust Indenture Act as then in effect, except that nothing herein
contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act;
(e) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registerable as to principal, to
change or eliminate any restrictions on the payment of principal of, or
premium, if any, on, Registered Securities or of principal of, or premium,
if any, or interest on, Bearer Securities or to permit Registered
Securities to be exchanged for Bearer Securities; provided, that any such
--------
action shall not adversely affect the interests of the Holders of Debt
Securities or any Coupons of any series in any material respect or permit
or facilitate the issuance of Debt Securities of any series in
uncertificated form;
(f) to comply with Article X;
(g) to add guarantees with respect to the Debt Securities or to
secure the Debt Securities;
(h) to make any change that does not adversely affect the rights of
any Holder;
(i) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
--------
however, that any such addition, change or elimination (i) shall neither
-------
(A) apply to any Debt Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Debt Security
with respect to such provision or (ii) shall become effective only when
there is no such Debt Security Outstanding;
(j) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; and
(k) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.01 and 2.03.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Debt Securities or Coupons, if any, appertaining
thereto at the time Outstanding, notwithstanding any of the provisions of
Section 9.02.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
SECTION 9.02. Modification of Indenture with Consent of Holders of
----------------------------------------------------
Debt Securities. Without notice to any Holder but with the consent (evidenced
- ----------------
as provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such supplemental indenture, the Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time enter into an Indenture or Indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in force at the
date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Debt Securities of such series; provided, that no such
--------
supplemental indenture, without the consent of the Holders of each Debt Security
so affected, shall (i) reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to an amendment; (ii) reduce
the rate of or extend the time for payment of interest on any Debt Security or
Coupon or reduce the amount of any payment to be made with respect to any
Coupon; (iii) reduce the principal of or change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Debt
Security or reduce the amount of principal of any Original Issue Discount
Security that would be due and payable upon declaration of acceleration of
maturity; (iv) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed
in accordance with Article III; (v) make any Debt Security payable in Currency
other than that stated in the Debt Security; (vi) release any security that may
have been granted in respect of the Debt Securities; (vii) make any change in
Section 6.06 or the second sentence of this Section 9.02; (viii) change any
obligation of the Company to pay additional interest pursuant to Section 4.06;
(ix) limit the obligation of the Company to maintain a paying agency outside the
United States for payment on Bearer Securities as provided in Section 4.02 or
limit the obligation of the Company to redeem an Affected Security as provided
in Section 3.02(b); (x) change any Place of Payment where any Debt Security or
any premium or interest thereon is payable; (xi) impair the right to institute
suit for the enforcement of any payment on or after the Stated Maturity of any
Debt Security (or in the case of redemption, on or after the date fixed for
redemption); or (xii) modify any of the provisions of this Section, Section 4.09
or Section
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6.06, 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 Section 9.02 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, Section 4.09, or the deletion of this
proviso, in accordance with the requirements of Section 7.08 and 9.01(j).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has been expressly included solely for
the benefit of one or more particular series of Debt Securities and Coupons, if
any, or which modifies the rights of the Holders of Debt Securities and Coupons
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
and Coupons, if any, of any other series.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion but shall not be obligated to enter
into such supplemental indenture. The Trustee shall be entitled to receive, and
shall be fully protected in relying upon (subject to Section 7.01), an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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SECTION 9.04. Debt Securities May Bear Notation of Changes by
-----------------------------------------------
Supplemental Indentures. Debt Securities and Coupons, if any, of any series
- ------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article IX 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. New Debt Securities and Coupons of
any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Debt Securities
and Coupons of such series then Outstanding. Failure to make the appropriate
notation or to issue a new Debt Security or Coupon of such series shall not
affect the validity of such amendment.
SECTION 9.05. Payment for Consent. Neither the Company nor any
--------------------
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Debt Securities or Coupons, if any,
appertaining thereto unless such consideration is offered to be paid to all
Holders that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. Consolidations and Mergers of the Company. The
------------------------------------------
Company shall not consolidate with, or sell or convey or lease all or
substantially all of its assets to, or merge with or into any other Person,
unless: (i) either (a) the Company shall be the continuing corporation in the
case of a merger or (b) the resulting, surviving or transferee Person if other
than the Company (the "Successor Company") shall be a corporation organized and
existing under the laws of the United States, any State thereof or the District
of Columbia and the Successor Company shall expressly assume, by an Indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the Debt Securities and
Coupons, if any, according to their tenor, and this Indenture; (ii) immediately
after giving effect to such transaction, no Default or Event of Default would
occur or be continuing; (iii) the Successor Company waives any right to redeem
any Bearer Security under circumstances in which the Successor Company would be
entitled to redeem such Bearer Security but the Company would not have been so
entitled to redeem if the consolidation, merger, conveyance, transfer or lease
had not occurred; and (iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
71
<PAGE>
that such consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
SECTION 10.02. Rights and Duties of Successor Corporation. In case
-------------------------------------------
of any consolidation or merger, or conveyance or sale of the assets of the
Company as an entirety or substantially as an entirety in accordance with
Section 10.01, the Successor Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the predecessor corporation shall be relieved of any further
obligation under the Indenture and the Securities. The Successor Company
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of the Successor Company, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Debt Securities
and Coupons, if any, appertaining thereto, which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debt Securities and Coupons, if any, appertaining
thereto, which the Successor Company thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Debt Securities and Coupons,
if any, appertaining thereto so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Debt Securities and Coupons, if
any, appertaining thereto theretofore or thereafter issued in accordance with
the terms of this Indenture as though all such Debt Securities and Coupons had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities and Coupons, if any, appertaining thereto thereafter to be issued as
may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture; Defeasance;
---------------------------------------------------
Unclaimed Moneys
----------------
SECTION 11.01. Applicability of Article. If, pursuant to Section
-------------------------
2.03, provision is made for the defeasance of Debt Securities of a series and if
the Debt Securities of such series are Registered Securities and denominated and
payable only in Dollars (except as provided pursuant to Section 2.03), then the
provisions of this Article XI relating to defeasance of Debt Securities shall be
applicable except as otherwise specified pursuant to Section 2.03 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or for Bearer Securities may be specified
pursuant to Section 2.03.
72
<PAGE>
SECTION 11.02. Satisfaction and Discharge of Indenture; Defeasance.
---------------------------------------------------
(a) If at any time (i) the Company shall have delivered to the
Trustee for cancellation all Debt Securities of any series theretofore
authenticated and delivered (other than (1) Coupons appertaining to Bearer
Securities of such series called for redemption and maturing after the relevant
redemption date, surrender of which has been waived, (2) any Debt Securities and
Coupons of such series which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.09 and (3) Debt
Securities and Coupons for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Company as provided in Section 11.05) or (ii)
all Debt Securities and the Coupons, if any, of such series not theretofore
delivered to the Trustee for cancellation shall have become due and payable,
whether by redemption or at Stated Maturity or otherwise, and the Company shall
deposit with the Trustee as trust funds the entire amount in the Currency in
which such Debt Securities are denominated with respect to Bearer Securities or
in Dollars with respect to Registered Securities (in each case except as
otherwise provided pursuant to Section 2.03) sufficient to pay at maturity or
upon redemption all Debt Securities of such series not theretofore delivered to
the Trustee for cancellation, including principal and premium, if any, and
interest due or to become due on such date of maturity or redemption date, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
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 of, and premium, if any, and
interest on, such Debt Securities and any right to receive additional interest
as provided in Section 4.06 and rights of the Trustee under Section 7.06) with
respect to the Debt Securities of such series, and the Trustee, on demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel and at
the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, (i)
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series ("legal defeasance option")
or (ii) its obligations with respect to the Debt Securities of such series under
Sections 4.07 and 4.08 and clause (iii) of Section 10.01 and the related
operation of Section 6.01(d) and the operation of Sections 6.01(d) and (h)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of the Debt Securities
73
<PAGE>
of the defeased series may not be accelerated because of an Event of Default
specified in Sections 6.01(c), (d) and (h) (except to the extent covenants or
agreements referenced in such Sections remain applicable).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06
and 11.07 shall survive until the Debt Securities of the defeased series have
been paid in full. Thereafter, the Company's obligations in Sections 7.06,
11.05 and 11.06 shall survive.
SECTION 11.03. Conditions of Defeasance. The Company may exercise
-------------------------
its legal defeasance option or its covenant defeasance option with respect to
Debt Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium and
interest when due on all the Debt Securities of such series to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-
day period no Default specified in Section 6.01(f) or (g) with respect to
the Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment company under the Investment
Company Act of 1940;
74
<PAGE>
(7) in the event of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case of the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
Debt Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(8) in the event of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred;
(9) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Debt Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(10) such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act); and
(11) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Debt Securities of such
series as contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
SECTION 11.04. Application of Trust Money. The Trustee shall hold
---------------------------
in trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities and Coupons, if any, of the defeased series.
75
<PAGE>
SECTION 11.05. Repayment to Company. The Trustee and any paying
---------------------
agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors.
SECTION 11.06. Indemnity for U.S. Government Obligations. The
------------------------------------------
Company shall pay and shall indemnify the Trustee and the Holders against any
tax, fee or other change imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is
--------------
unable to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE XII
Miscellaneous Provisions
------------------------
SECTION 12.01. Successors and Assigns of Company Bound by Indenture.
-----------------------------------------------------
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 12.02. Acts of Board, Committee or Officer of Successor
------------------------------------------------
Company Valid. Any act or proceeding by any provision of this Indenture
- --------------
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any Successor Company.
SECTION 12.03. Required Notices or Demands. Except as otherwise
----------------------------
expressly provided in this Indenture, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders to or on the Company may be given or served by
being deposited postage prepaid in a
76
<PAGE>
post office letter box in the United States addressed (until another address is
filed by the Company with the Trustee) as follows: Electronic Data Systems
Corporation, 5400 Legacy Drive, Mail Stop H2-8W-40, Plano, Texas 75024-3199,
Attention: Chief Financial Officer. Except as otherwise expressly provided in
this Indenture, any notice, direction, request or demand by the Company or by
any Holder to or upon the Trustee may be given or made, for all purposes, by
being deposited postage prepaid in a post office letter box in the United States
addressed to the corporate trust office of the Trustee initially at 600 Travis,
8th Floor, Houston, Texas 77002, Attention: Global Trust Services - EDS. The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Company
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited postage prepaid in a post office letter
box in the United States addressed to such Holder at the address of such Holder
as shown on the Debt Security Register. Any report pursuant to Section 313 of
the Trust Indenture Act shall be transmitted in compliance with subsection (c)
therein.
Any notice required or permitted to a Bearer Holder by the Company or
the Trustee pursuant to this Indenture shall be deemed to be properly given if
published on two separate business days in an Authorized Newspaper or Newspapers
in such Place or Places of Payment specified pursuant to Section 2.03, the first
such publication to be not earlier than the earliest date and not later than two
business days prior to the latest date prescribed for the giving of such notice.
Notwithstanding the foregoing, any notice to Holders of Floating Rate Debt
Securities regarding the determination of a periodic rate of interest, if such
notice is required pursuant to Section 2.03, shall be sufficiently given if
given in the manner specified pursuant to Section 2.03.
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, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspaper
or by reason of any other cause it shall be impracticable to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in
it or any defect in any notice by publication as to a Holder shall not affect
the sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
77
<PAGE>
SECTION 12.04. Indenture and Debt Securities to Be Construed in
------------------------------------------------
Accordance with the Laws of the State of New York. This Indenture, each Debt
- --------------------------------------------------
Security and each Coupon shall be deemed to be New York contracts, and for all
purposes shall be construed in accordance with the laws of said State (without
reference to principles of conflicts of law).
SECTION 12.05. Officers' Certificate and Opinion of Counsel to Be
--------------------------------------------------
Furnished upon Application or Demand by the Company. Upon any application or
- ----------------------------------------------------
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 12.06. Payments Due on Legal Holidays. In any case where the
-------------------------------
date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, 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 date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date. If a record date
is not a business day, the record date shall not be affected.
SECTION 12.07. Provisions Required by Trust Indenture Act to Control.
------------------------------------------------------
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required to
be included in this Indenture by any of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such required provision shall control.
78
<PAGE>
SECTION 12.08. Computation of Interest on Debt Securities. Interest,
-------------------------------------------
if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 12.09. Rules by Trustee, Paying Agent and Registrar. The
---------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their functions.
SECTION 12.10. No Recourse Against Others. An incorporator or any
---------------------------
past, present or future director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the Company
under the Debt Securities, the Coupons or this Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Debt Security or Coupon, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issue of the Debt Securities and Coupons.
SECTION 12.11. Severability. In case any provision in this
-------------
Indenture, the Debt Securities or the Coupons 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 12.12. Effect of Headings. The article and section headings
-------------------
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 12.13. Indenture May Be Executed in Counterparts. This
------------------------------------------
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms
and conditions hereinafter set forth.
79
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed as of the date first written above.
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ Joseph M. Grant
-------------------------------------
Name: Joseph M. Grant
Title: Executive Vice President and Chief
Financial Officer
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ Terry Stewart
-------------------------------------
Name: Terry Stewart
Title: Assistant Vice President and Trust
Officer
80
<PAGE>
EXHIBIT A
---------
FOREST LANE DESCRIPTION
The Forest Lane property consists of 175.3498 acres located in the City of
Dallas, Dallas County, Texas, Being part of Block 7462 of Electronic Data
Systems Addition M.J. Sanchez Survey Abstract 1272 and Hiram Wilburn Survey
Abstract 1568. The site is bound by White Rock Creek on the East, Forest Lane
on the South, Hillcrest Road on the West and Churchill Way on the North.
PLANO TEXAS DESCRIPTION
The Plano Texas property consists of 363 acres (plus the approximately 18-acre
parcel on which the Education Buildings referred to below are located) located
in the City of Plano, Collin County, Texas, bound by White Rock Creek on the
East, Tennyson Parkway on the South, Parkwood Drive on the West and Legacy Drive
on the North. The property currently contains the following principal
facilities;
EDS Centre Building, Cluster I, Cluster II, Cluster III; IPC I, IPC II, IPC III,
IPC IV; IMC Command Center; Health and Fitness Facility; Vehicle Service Center;
Heliport; and Ground Maintenance Facility.
Also included in this Plano Texas Description is Education Building I, Education
Building 2, Education Building 3, and Education Building 4 located in the City
of Plano, Collin County, Texas, bound by Tennyson Parkway on the North and
Democracy Drive on the West.
A-1
<PAGE>
EXHIBIT 5
[EDS Letterhead]
August 13, 1996
Electronic Data Systems Corporation
5400 Legacy Drive
Plano, Texas 75024-3199
Ladies and Gentlemen:
I have acted as counsel to Electronic Data Systems Corporation, a
Delaware corporation ("EDS"), in connection with the registration by EDS under
the Securities Act of 1933, as amended (the "Securities Act"), on a Registration
Statement on Form S-3 (the "Registration Statement") of the offer and sale from
time to time pursuant to Rule 415 under the Securities Act of debt securities of
EDS with an aggregate initial offering price not to exceed $2,000,000,000 (the
"Debt Securities"). The Debt Securities may be issued in one or more series
under an Indenture dated as of August 12, 1996 (the "Indenture") between EDS and
Texas Commerce Bank National Association, as trustee (the "Trustee"). This
opinion is being furnished to you for filing as Exhibit 5 to the Registration
Statement.
In reaching the opinions set forth herein, I have reviewed the Restated
Certificate of Incorporation and By-laws of EDS, resolutions adopted by the
Board of Directors of EDS, and the Indenture.
Based upon the undersigned's examination as aforesaid, and subject to the
limitations and qualifications hereinafter set forth, the undersigned is of the
opinion that when (A) the Chief Financial Officer of EDS has taken all necessary
action to approve the issuance and terms of the Debt Securities, the terms of
the offering thereof and related matters and (B) the Debt Securities have been
duly executed, authenticated, issued and delivered in accordance with the
provisions of the Indenture and the applicable definitive purchase, underwriting
or similar agreement approved by an authorized officer of EDS upon payment of
the consideration therefor provided for therein, such Debt Securities will be
legally issued and will constitute (assuming the due authentication of the Debt
Securities by the Trustee) valid and binding obligations of EDS, enforceable
against EDS in accordance with their terms, except as such enforcement is
subject to (i) any applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other law relating to or
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at equity or
at law).
<PAGE>
The opinion expressed above is subject in all respects to the following
assumptions, exceptions and qualifications:
(a) I have assumed that (i) the Registration Statement and any amendments
thereto (including post-effective amendments) will have become effective and
comply with all applicable laws; (ii) the Registration Statement will be
effective and will comply with all applicable laws at the time the Debt
Securities are offered or issued as contemplated by the Registration Statement
(if such offering or issuance requires the delivery of a prospectus under the
Securities Act or pursuant to any other law); (iii) the Indenture will have been
duly qualified under the Trust Indenture Act of 1939, as amended, (iv) a
Prospectus Supplement will have been prepared and filed with the Securities and
Exchange Commission describing the Debt Securities offered thereby and will
comply with all applicable laws; (v) all Debt Securities will be issued and sold
in compliance with applicable federal and state securities laws and in the
manner stated in the Registration Statement and the appropriate Prospectus
Supplement; and (vi) a definitive purchase, underwriting or similar agreement
with respect to any Debt Securities offered or issued will have been duly
authorized, executed and delivered by EDS and the other parties thereto, that
such agreement will constitute the legal, valid and binding obligation of each
such other party, enforceable against each such other party in accordance with
its terms, and that each such other party will have the requisite power and
authority to perform its obligations thereunder and to effect the purchase of
the Debt Securities.
(b) I have assumed that the trustee is qualified to act as trustee under
the Indenture and that the Trustee has duly executed and delivered the
Indenture.
(c) I express no opinion as to (i) the enforceability of provisions in
the Indenture or any other agreement or instrument with respect to delay or
omission of enforcement of rights or remedies, or waivers or defenses, or
waivers of benefits of stay, extension, moratorium, redemption, statutes of
limitation or other nonwaivable benefits bestowed by operation of law, or (ii)
the enforceability of indemnification provisions to the extent they purport to
related to liabilities resulting from or based upon negligence or any violation
of federal or state securities or blue sky laws.
(d) I express no opinion as to the requirements of or compliance with
federal or state securities laws or regulations.
(e) The opinions expressed above are limited to the laws of the State of
Texas, the General Corporation Law of the State of Delaware, and the federal
laws of the United States of America. I am not admitted to the practice of law
in the State of Delaware. I note that the Indenture is, and the Debt Securities
will be, governed by the laws of the State of New York. While I express no
opinion with respect to the laws of the State of New York, I have assumed,
without any independent investigation, that the laws of the State of New York
are the same as the laws of the State of Texas.
<PAGE>
The undersigned hereby consents to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement
and to the reference to the undersigned beneath the caption "Legal Matters" in
the Prospectus forming a part of the Registration Statement.
Very truly yours,
/S/ D. GILBERT FRIEDLANDER
D. Gilbert Friedlander
Senior Vice President and
General Counsel
<PAGE>
EXHIBIT 12
ELECTRONIC DATA SYSTEMS CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR TO DATE
JUNE YEARS ENDED DECEMBER 31,
1996 1995 1994 1993 1992 1991
------------- -------- -------- -------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
(DOLLARS IN MILLIONS)
Income (loss) before cumulative
effect of accounting change $(107.7) $ 938.9 $ 821.9 $ 724.0 $ 635.5 $ 563.0
United States, foreign, and other
income taxes (60.6) 528.1 462.3 407.3 365.3 330.7
Equity in (income) losses of
affiliates 2.4 8.8 6.2 4.9 (3.4) 9.5
Cash dividends received from
affiliates 3.0 2.2 -- 0.6 0.6 0.5
Amortization of capitalized interest 0.3 0.5 0.5 0.5 -- --
------- -------- -------- -------- -------- --------
Income before income taxes,
undistributed (income) losses of
affiliates, and amortization of
capitalized interest (162.6) 1,478.5 1,290.9 1,137.3 998.0 903.7
------- -------- -------- -------- -------- --------
Fixed charges included in net income:
Interest and related charges on debt 72.3 120.8 51.7 34.5 43.0 28.3
Portion of rentals deemed to be
interest 111.8 228.0 176.9 189.9 206.1 194.1
------- -------- -------- -------- -------- --------
Total fixed charges included in
net income 184.1 348.8 228.6 224.4 249.1 222.4
------- -------- -------- -------- -------- --------
Earnings available for fixed charges $ 21.5 $1,827.3 $1,519.5 $1,361.7 $1,247.1 $1,126.1
======= ======== ======== ======== ======== ========
Fixed charges:
Fixed charges included in net income $ 184.1 $ 348.8 $ 228.6 $ 224.4 $ 249.1 $ 222.4
Interest capitalized in the period -- -- 1.2 5.4 18.1 15.5
------- -------- -------- -------- -------- --------
Total fixed charges $ 184.1 $ 348.8 $ 229.8 $ 229.8 $ 267.2 $ 237.9
------- -------- -------- -------- -------- --------
Fixed charge coverage (deficiency) $(162.6) $1,478.5 $1,289.7 $1,131.9 $ 979.9 $ 888.2
======= ======== ======== ======== ======== ========
Ratio of earnings to fixed charges n/a 5.24 6.61 5.93 4.67 4.73
======= ======== ======== ======== ======== ========
</TABLE>
<PAGE>
EXHIBIT 23(A)
CONSENT OF INDEPENDENT AUDITORS
THE BOARD OF DIRECTORS
ELECTRONIC DATA SYSTEMS CORPORATION:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ KPMG PEAT MARWICK LLP
Dallas, Texas
August 13, 1996
<PAGE>
EXHIBIT 25
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)______
_______________
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
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
___________________
ELECTRONIC DATA SYSTEMS CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 75-2548221
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5400 LEGACY DRIVE
PLANO, TEXAS 75024
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
================================================================================
<PAGE>
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.
<PAGE>
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 BENEFICIALLY 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.
<PAGE>
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
BENEFICIALLY 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
BENEFICIALLY 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
BENEFICIALLY 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.
<PAGE>
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.
<PAGE>
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
<TABLE>
<C> <C> <S>
.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.
- -------------
</TABLE>
. Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits
to the Form S-3 File No. 33-56195.
# 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.
* 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 exhibits to
the Form S-3 File No. 33-65055.
_______________________________
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.
<PAGE>
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 7TH DAY OF AUGUST, 1996.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Terry L. Stewart
-----------------------
Terry L. Stewart
Assistant Vice President
<PAGE>
EXHIBIT 7
<PAGE>
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Expires March 31, 1999
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
- --------------------------------------------------------------------------------
[1]
[LOGO OF Please refer to page i,
EDS APPEARS Table of Contents, for
HERE] the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES-FFIEC 031
REPORT AT THE CLOSE OF BUSINESS JUNE 30, 1996
This report is required by law: 12 U.S.C. (S) 324 (State member banks); 12
U.S.C. (S) 1817 (State nonmember banks); and 12 U.S.C. (S) 161 (National banks).
- --------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National banks. I, Kenneth L. Tilton, Executive Vice President
-------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are
true to the best of my knowledge and belief.
/s/ Kenneth L. Tilton
- -------------------------------------------
Signature of Officer Authorized to Sign Report
July 31, 1996
- -------------------------------------------
Date of Signature
- --------------------------------------------------------------------------------
FOR BANKS SUBMITTING HARD COPY REPORT FORMS:
STATE MEMBER BANKS: Return the original and one copy to the appropriate Federal
Reserve District Bank.
STATE NONMEMBER BANKS: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
- --------------------------------------------------------------------------------
FDIC Certificate Number |0|3|2|6|3|
___________
(RCRI 9050)
(960630)
___________
(RCRI 9999)
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
- --------------------------------------------------------------------------------
The Reports of Condition and Income are to be prepared in accordance wth Federal
regulatory authority instructions. NOTE: These instructions may in some cases
differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
/s/ Signature Appears Here
- ------------------------------------
Director (Trustee)
/s/ Signature Appears Here
- ------------------------------------
Director (Trustee)
/s/ Signature Appears Here
- ------------------------------------
Director (Trustee)
- --------------------------------------------------------------------------------
NATIONAL BANKS: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
- --------------------------------------------------------------------------------
CALL NO. 196 31 06-30-96
STBK:P 48-3926 00373 STCERT: 48-03263
TEXAS COMMERCE BANK NATIONAL ASSOCIA
712 MAIN STREET
HOUSTON, TX 77001
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE>
FFIEC 031
Page i
[2]
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Signature Page Cover
Report of Income
Schedule RI-Income Statement..................................... RI-1, 2, 3
Schedule RI-A-Changes in Equity Capital.......................... RI-4
Schedule RI-B-Charge-offs and Recoveries and Changes in Allowance
for Loan and Lease Losses....................................... RI-4, 5
Schedule RI-C-Applicable Income Taxes by Taxing Authority........ RI-5
Schedule RI-D-Income from International Operations............... RI-6
Schedule RI-E-Explanations....................................... RI-7, 8
</TABLE>
DISCLOSURE OF ESTIMATED BURDEN
The estimated average burden associated with this information collection is 32.2
hours per respondent and is estimated to vary from 15 to 230 hours per response,
depending on individual circumstances. Burden estimates include the time for
reviewing instructions, gathering and maintaining data in the required form, and
completing the information collection, but exclude the time for compiling and
maintaining business records in the normal course of a respondent's activities.
Comments concerning the accuracy of this burden estimate and suggestions for
reducing this burden should be directed to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, D.C. 20503, and
to one of the following:
Secretary
Board of Governors of the Federal Reserve System
Washington, D.C. 20551
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
Report of Condition
<TABLE>
<S> <C>
Schedule RC-Balance Sheet........................................ RI-1, 2
Schedule RC-A-Cash and Balances Due From Depository Instituions.. RC-3
Schedule RC-B-Securities......................................... RC-3, 4, 5
Schedule RC-C-Loans and Lease Financing Receivables:
Part I. Loans and Leases...................................... RC-6, 7
Part II. Loans to Small Businesses and Small Farms (included
in the forms for June 30 only).............................. RC-7a, 7b
Schedule RC-D-Trading Assets and Liabilities (to be completed
only by selected banks)........................................ RC-8
Schedule RC-E-Deposit Liabilities................................ RC-9, 10, 11
Schedule RC-F-Other Assets....................................... RC-11
Schedule RC-G-Other Liabilities.................................. RC-11
Schedule RC-H-Selected Balance Sheet Items for Domestic Offices.. RC-12
Schedule RC-I-Selected Assets and Liabilities of IBFs............ RC-13
Schedule RC-K-Quarterly Averages................................. RC-13
Schedule RC-L-Off-Balance Sheet Items............................ RC-14, 15, 16
Schedule RC-M-Memoranda.......................................... RC-17, 18
Schedule RC-N-Past Due and Nonaccrual Loans, Leases, and Other
Assets......................................................... RC-19, 20
Schedule RC-O-Other Data for Deposit Insurance Assessments....... RC-21, 22
Schedule RC-R-Regulatory Capital................................. RC-23, 24
Optional Narrative Statement Concerning the Amounts Reported
in the Reports of Condition and Income......................... RC-25
Special Report (to be completed by all banks)
Schedule RC-J-Repricing Opportunities (sent only to and to be
completed only by savings banks)
</TABLE>
For information or assistance, National and State nonmember banks should contact
the FDIC's Call Reports Analysis Unit, 550 17th Street, NW, Washington,
D.C. 20429, toll free on (800) 688-FDIC(3342), Monday through Friday between
8:00 a.m. and 5:00 p.m., Eastern time. State member banks should contact their
Federal Reserve District Bank.
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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, 1996-June 30, 1996
All Report of Income schedules are to be reported on a calendar year-to-date basis in thousands of dollars.
Schedule RI--Income Statement
<S> <C> <C> <C>
__________
| 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 107,276 | 1.a.(1)(a)
(b) Loans to depository institutions ............................................... | 4019 1,488 | 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to farmers ............ | 4024 2,430 | 1.a.(1)(c)
(d) Commercial and industrial loans ................................................ | 4012 215,606 | 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 8,181 | 1.a.(1)(f)(1)
(2) Other ...................................................................... | 4055 93,852 | 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions ......................... | 4056 5,601 | 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and political | ////////////////// |
subdivisions in the U.S.: | ////////////////// |
(1) Taxable obligations ........................................................ | 4503 0 | 1.a.(1)(h)(1)
(2) Tax-exempt obligations ..................................................... | 4504 712 | 1.a.(1)(h)(2)
(i) All other loans in domestic offices ............................................ | 4058 38,817 | 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs ...................... | 4059 4,362 | 1.a.(2)
b. Income from lease financing receivables: | ////////////////// |
(1) Taxable leases ..................................................................... | 4505 5,225 | 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 127 | 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 137,514 | 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.: | ////////////////// |
(a) Taxable securities ............................................................. | 4506 15 | 1.d.(2)(a)
(b) Tax-exempt securities .......................................................... | 4507 8 | 1.d.(2)(b)
(3) Other domestic debt securities ..................................................... | 3657 103 | 1.d.(3)
(4) Foreign debt securities ............................................................ | 3658 0 | 1.d.(4)
(5) Equity securities (including investments in mutual funds) .......................... | 3659 1,384 | 1.d.(5)
e. Interest income from trading accounts .................................................. | 4069 234 | 1.e.
______________________
____________
(1) Includes interest income on time certificates of deposit not held for trading.
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C> <C> <C> <C>
________________
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 13,714 | 1.f.
g. Total interest income (sum of items 1.a through 1.f) ................ | 4107 636,649 | 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 2,772 | 2.a.(1)(a)
(b) Nontransaction accounts: | ////////////////// |
(1) Money market deposit accounts (MMDAs) ................... | 4509 20,998 | 2.a.(1)(b)(1)
(2) Other savings deposits .................................. | 4511 51,941 | 2.a.(1)(b)(2)
(3) Time certificates of deposit of $100,000 or more ........ | 4174 21,216 | 2.a.(1)(b)(3)
(4) All other time deposits ................................. | 4512 67,067 | 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement | ////////////////// |
subsidiaries, and IBFs .......................................... | 4172 8,097 | 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 26,377 | 2.b.
c. Interest on demand notes issued to the U.S. Treasury, trading | ////////////////// |
liabilities and other borrowed money ................................ | 4185 18,422 | 2.c.
d. Interest on mortgage indebtedness and obligations under | ////////////////// |
capitalized leases .................................................. | 4072 774 | 2.d.
e. Interest on subordinated notes and debentures ....................... | 4200 14,452 | 2.e.
f. Total interest expense (sum of items 2.a through 2.e) ............... | 4073 232,116 | 2.f.
___________________________
3. Net interest income (item 1.g minus 2.f) ............................... | ////////////////// | RIAD 4074 | 404,533 | 3.
___________________________
4. Provisions: | ////////////////// |
___________________________
a. Provision for loan and lease losses ................................. | ////////////////// | RIAD 4230 | 0 | 4.a.
b. Provision for allocated transfer risk ............................... | ////////////////// | RIAD 4243 | 0 | 4.b.
___________________________
5. Noninterest income: | ////////////////// |
a. Income from fiduciary activities .................................... | 4070 59,200 | 5.a.
b. Service charges on deposit accounts in domestic offices ............. | 4080 71,312 | 5.b.
c. Trading gains (must equal Schedule RI, sum of Memorandum | ////////////////// |
items 8.a through 8.d)............................................... | A220 14,259 | 5.c.
d. Other foreign transaction gains (losses) ............................ | 4076 0 | 5.d.
e. Not applicable....................................................... | ////////////////// |
f. Other noninterest income: | ////////////////// |
(1) Other fee income ................................................ | 5407 38,944 | 5.f.(1)
(2) All other noninterest income* ................................... | 5408 20,107 | 5.f.(2)
___________________________
g. Total noninterest income (sum of items 5.a through 5.f) ............. | ////////////////// | RIAD 4079 | 203,822 | 5.g.
6. a. Realized gains (losses) on held-to-maturity securities .............. | ////////////////// | RIAD 3521 | 0 | 6.a.
b. Realized gains (losses) on available-for-sale securities ............ | ////////////////// | RIAD 3196 | 4,389 | 6.b.
___________________________
7. Noninterest expense: | ////////////////// |
a. Salaries and employee benefits ...................................... | 4135 209,683 | 7.a.
b. Expenses of premises and fixed assets (net of rental income) | ////////////////// |
(excluding salaries and employee benefits and mortgage interest) .... | 4217 75,228 | 7.b.
c. Other noninterest expense* .......................................... | 4092 113,758 | 7.c.
___________________________
d. Total noninterest expense (sum of items 7.a through 7.c) ............ | ////////////////// | RIAD 4093 | 398,669 | 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 | 214,075 | 8.
| ////////////////// | | |
9. Applicable income taxes (on item 8) .................................... | ////////////////// | RIAD 4302 | 78,165 | 9.
| ////////////////// ___________________________
10. Income (loss) before extraordinary items and other adjustments | ////////////////// | RIAD 4300 | 135,910 | 10.
(item 8 minus 9) ....................................................... _________________________________________________
____________
*Describe on Schedule RI-E--Explanations.
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C> <C>
________________
| 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 | 135,910 | 12.
_________________________________________________
__________
| I481 | (-
________________
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 100 | M.1.
2. Income from the sale and servicing of mutual funds and annuities in domestic offices | ////////////////// |
(included in Schedule RI, item 8).. ............................................................. | 8431 8,458 | M.2.
3.-4. Not applicable. | ////////////////// |
5. Number of full-time equivalent employees on payroll at end of current period (round to | //// Number |
nearest whole number) ........................................................................... | 4150 8,754 | M.5.
6. Not applicable | ////////////////// |
7. If the reporting bank has restated its balance sheet as a result of applying push down | //// MM DD YY | 7.
accounting this calendar year, report the date of the bank's acquisition......................... | 9106 00/00/00 | M.7.
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments) | ////////////////// |
(sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c): | //// Bil Mil Thou |
a. Interest rate exposures....................................................................... | 8757 6,911 | M.8.a.
b. Foreign exchange exposures.................................................................... | 8758 7,348 | M.8.b.
c. Equity security and index exposures........................................................... | 8759 0 | M.8.c.
d. Commodity and other exposures................................................................. | 8760 0 | M.8.d.
9. Impact on income of off-balance sheet derivatives held for purposes other than trading: | ////////////////// |
a. Net increase (decrease) to interest income.................................................... | 8761 8,763 | M.9.a.
b. Net (increase) decrease to interest expense................................................... | 8762 (870)| M.9.b.
c. Other (noninterest) allocations............................................................... | 8763 (616)| M.9.c.
10. Credit losses on off-balance sheet derivatives (see instructions)................................ | A251 0 | M.10.
______________________
____________
*Describe on Schedule RI-E--Explanations.
</TABLE>
5
<PAGE>
[NO COPY OR DATA SUPPLIED FOR PAGE 6?????]
6
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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 I. Continued
<S> <C> <C> <C> <C>
_________________________________ ________
| (Column A) | (Column B) |
| Charge-offs | Recoveries |
____________________ ____________________
| Calendar year-to-date |
_________________________________________
Memoranda Dollar Amounts in Thousands | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
1-3. Not applicable | ////////////////// | ////////////////// |
4. Loans to finance commercial real estate, construction, and land | ////////////////// | ////////////////// |
development activities (not secured by real estate) included in | ////////////////// | ////////////////// |
Schedule RI-B, part I, items 4 and 7, above............................... | 5409 0 | 5410 51 | M.4
5. Loans secured by real estate in domestic offices (included in | ////////////////// | ////////////////// |
Schedule RI-B, part I, item 1, above): | ////////////////// | ////////////////// |
a. Construction and land development...................................... | 3582 450 | 3583 148 | M.5.a.
b. Secured by farmland.................................................... | 3584 0 | 3585 0 | M.5.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.5.c.(1)
(2) All other loans secured by 1-4 family residential properties....... | 5413 866 | 5414 263 | M.5.c.(2)
d. Secured by multifamily (5 or more) residential properties.............. | 3588 0 | 3589 4 | M.5.d.
e. Secured by nonfarm nonresidential properties........................... | 3590 5 | 3591 2,044 | M.5.e.
___________________________________________
Part II. Changes in Allowance for Loan and
Lease Losses
_____________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
1. Balance originally reported in the December 31, 1995, Reports of Condition and Income.......... | 3124 290,221 | 1.
2. Recoveries (must equal part I, item 9, column B above)......................................... | 4605 10,272 | 2.
3. LESS: Charge-offs (must equal part I, item 9, column A above).................................. | 4635 46,095 | 3.
4. Provision for loan and lease losses (must equal Schedule RI, item 4.a)......................... | 4230 0 | 4.
5. Adjustments* (see instructions for this schedule).............................................. | 4815 0 | 5.
6. Balance end of current period (sum of items 1 through 5) (must equal Schedule RC, | ////////////////// |
item 4.b)...................................................................................... | 3123 254,398 | 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.
__________________________________________________
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C>
__________
| 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.
______________________
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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.)
<S> <C> <C> <C>
__________
| 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 5,813 | 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): | ////////////////// |
_____________ CHECK PRINTING INCOME
d. | TEXT 4461 |______________________________________________________________________________| 4461 5,121 | 1.d.
___________ INTERBANK CONTRACT SERVICES
e. | TEXT 4462 |______________________________________________________________________________| 4462 5,480 | 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 22,682 | 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: | ////////////////// |
_____________
e. | TEXT 4464 |______________________________________________________________________________| 4464 | 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.
_________________________________________________________________________________________________________________
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C>
________________
| 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): | ////////////////// |
_____________
a. | TEXT 4498 |______________________________________________________________________________| 4498 | 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): | ////////////////// |
_____________
a. | TEXT 4521 |______________________________________________________________________________| 4521 | 8.a.
___________
b. | TEXT 4522 |______________________________________________________________________________| 4522 | 8.b.
_____________ ---------------------
9. Other explanations (the space below is provided for the bank to briefly describe, at its | I498 | I499 | (-
option, any other significant items affecting the Report of Income): ______________________
___
No comment | | (RIAD 4769)
___
Other explanations (please type or print clearly):
(TEXT 4769)
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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, 1996
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
<S> <C> <C> <C>
__________
| 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 2,008,330 | 1.a.
b. Interest-bearing balances(2) ............................................................ | 0071 5,108 | 1.b.
2. Securities: | ////////////////// |
a. Held-to-maturity securities (from Schedule RC-B, column A) .............................. | 1754 592,121 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ............................ | 1773 3,158,919 | 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 1,774,300 | 3.a.
b. Securities purchased under agreements to resell ......................................... | 0277 14,896 | 3.b.
4. Loans and lease financing receivables: ____________________________| ////////////////// |
a. Loans and leases, net of unearned income (from Schedule RC-C) | RCFD 2122 | 12,062,066 | ////////////////// | 4.a.
b. LESS: Allowance for loan and lease losses ................... | RCFD 3123 | 254,398 | ////////////////// | 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 11,807,668 | 4.d.
5. Trading assets (from Schedule RC-D)......................................................... | 3545 26,501 | 5.
6. Premises and fixed assets (including capitalized leases) ................................... | 2145 555,173 | 6.
7. Other real estate owned (from Schedule RC-M) ............................................... | 2150 13,643 | 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 10,277 | 9.
10. Intangible assets (from Schedule RC-M) ..................................................... | 2143 442,399 | 10.
11. Other assets (from Schedule RC-F) .......................................................... | 2160 398,765 | 11.
12. Total assets (sum of items 1 through 11) ................................................... | 2170 20,808,100 | 12.
______________________
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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|
___________
Schedule RC--Continued
<S> <C> <C> <C> <C> <C>
___________________________
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 15,341,444 | 13.a.
____________________________
(1) Noninterest-bearing(1) ................................ | RCON 6631 6,104,891 | /////////////////////// | 13.a.(1)
(2) Interest-bearing ...................................... | RCON 6636 9,236,553 | /////////////////////// | 13.a.(2)
____________________________
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, | /////////////////////// |
part II) .............................................................................. | RCFN 2200 320,667 | 13.b.
____________________________
(1) Noninterest-bearing ................................... | RCFN 6631 0 | /////////////////////// | 13.b.(1)
(2) Interest-bearing ...................................... | RCFN 6636 320,667 | /////////////////////// | 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 261,294 | 14.a.
b. Securities sold under agreements to repurchase ........................................ | RCFD 0279 950,307 | 14.b.
15. a. Demand notes issued to the U.S. Treasury .............................................. | RCON 2840 1,565,030 | 15.a.
b. Trading liabilities (from Schedule RC-D) .............................................. | RCFD 3548 15,672 | 15.b.
16. Other borrowed money: | /////////////////////// |
a. With a remaining maturity of one year or less ......................................... | RCFD 2332 14,797 | 16.a.
b. With a remaining maturity of more than one year ....................................... | RCFD 2333 96 | 16.b.
17. Mortgage indebtedness and obligations under capitalized leases ........................... | RCFD 2910 26,820 | 17.
18. Bank's liability on acceptances executed and outstanding ................................. | RCFD 2920 10,277 | 18.
19. Subordinated notes and debentures ........................................................ | RCFD 3200 345,000 | 19.
20. Other liabilities (from Schedule RC-G) ................................................... | RCFD 2930 296,931 | 20.
21. Total liabilities (sum of items 13 through 20) ........................................... | RCFD 2948 19,148,335 | 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 924,675 | 25.
26. a. Undivided profits and capital reserves ................................................ | RCFD 3632 206,260 | 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ................ | RCFD 8434 (84,063)| 26.b.
27. Cumulative foreign currency translation adjustments ...................................... | RCFD 3284 0 | 27.
28. Total equity capital (sum of items 23 through 27) ........................................ | RCFD 3210 1,659,765 | 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, | /////////////////////// |
and 28) .................................................................................. | RCFD 3300 20,808,100 | 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 1995 .............................................................. | 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.
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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|
___________
Schedule RC-A--Cash and Balances Due From Depository Institutions
Exclude assets held for trading.
<S> <C> <C> <C>
________
| 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 1,751,651 | ////////////////// | 1.
a. Cash items in process of collection and unposted debits .............. | ////////////////// | 0020 1,475,135 | 1.a.
b. Currency and coin .................................................... | ////////////////// | 0080 276,516 | 1.b.
2. Balances due from depository institutions in the U.S. ................... | ////////////////// | 0082 41,717 | 2.
a. U.S. branches and agencies of foreign banks (including their IBFs) ... | 0083 5,008 | ////////////////// | 2.a.
b. Other commercial banks in the U.S. and other depository institutions | ////////////////// | ////////////////// |
in the U.S. (including their IBFs) ................................... | 0085 36,709 | ////////////////// | 2.b.
3. Balances due from banks in foreign countries and foreign central banks .. | ////////////////// | 0070 10,483 | 3.
a. Foreign branches of other U.S. banks ................................. | 0073 16 | ////////////////// | 3.a.
b. Other banks in foreign countries and foreign central banks ........... | 0074 10,472 | ////////////////// | 3.b.
4. Balances due from Federal Reserve Banks ................................. | 0090 209,582 | 0090 209,582 | 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 2,013,438 | 0010 2,013,433 | 5.
___________________________________________
______________________
Memorandum Dollar Amounts in Thousands |RCON Bil Mil Thou|
__________________________________________________________________________________________________ ____________________
1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item 2, | ////////////////// |
column B above) .............................................................................. | 0050 36,609 | M.1.
______________________
Schedule RC-B--Securities
Exclude assets held for trading.
__________
| 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 17,973 | 0213 17,950 | 1286 602,162 | 1287 581,488 | 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 36 | 1295 20 | 1297 0 | 1298 0 | 2.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 mortgage-backed securities) 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.
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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--Continued
<S> <C> <C> <C> <C> <C>
___________________________________________________________________________ ________
| 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 |
______________________________________ ____________________ ____________________ ____________________ ____________________
3. Securities issued by states | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and political subdivisions | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
in the U.S.: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. General obligations ........... | 1676 259 | 1677 259 | 1678 0 | 1679 0 | 3.a.
b. Revenue obligations ........... | 1681 40 | 1686 49 | 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 1,279,661 | 1702 1,273,466 | 4.a.(1)
(2) Issued by FNMA | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and FHLMC ................. | 1703 573,813 | 1705 563,957 | 1706 1,285,738 | 1707 1,254,570 | 4.a.(2)
(3) Other pass-through | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities ................ | 1709 0 | 1710 0 | 1711 0 | 1713 0 | 4.a.(3)
b. Other mortgage-backed | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities (include CMOs, | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
REMICs, and stripped | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
MBS): | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Issued or guaranteed | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
by FNMA, FHLMC, | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
or GNMA ................... | 1714 0 | 1715 0 | 1716 0 | 1717 0 | 4.b.(1)
(2) Collateralized | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
by MBS issued or | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
guaranteed by FNMA, | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
FHLMC, or GNMA ............ | 1718 0 | 1719 0 | 1731 3,230 | 1732 3,268 | 4.b.(2)
(3) All other mortgage- | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
backed securities ......... | 1733 0 | 1734 0 | 1735 0 | 1736 0 | 4.b.(3)
5. Other debt securities: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Other domestic debt | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities .................... | 1737 0 | 1738 0 | 1739 0 | 1741 0 | 5.a.
b. Foreign debt | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities .................... | 1742 0 | 1743 0 | 1744 0 | 1746 0 | 5.b.
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 46,127 | 1753 46,127 | 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 592,121 | 1771 582,235 | 1772 3,216,918 | 1773 3,158,919 | 7.
_____________________________________________________________________________________
_____________
(1) Includes equity securities without readily determinable fair values at historical cost in item 6.c, column D.
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C> <C> <C> <C>
___________
Memoranda | C412 | (-
___________ _________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
1. Pledged securities(2) ......................................................................... | 0416 2,237,322 | 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 18,265 | M.2.a.(1)
(2) Over three months through 12 months .................................................... | 0344 198,548 | M.2.a.(2)
(3) Over one year through five years ....................................................... | 0345 1,045,308 | M.2.a.(3)
(4) Over five years ........................................................................ | 0346 2,437,988 | M.2.a.(4)
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1) through 2.a.(4)) ..... | 0347 3,700,109 | M.2.a.(5)
b. Floating rate debt securities with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently ........................................................... | 4544 4,804 | M.2.b.(1)
(2) Annually or more frequently, but less frequently than quarterly ........................ | 4545 0 | 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 4,804 | 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 3,704,913 | 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), (4) (included | ////////////////// |
in Memorandum items 2.b.(1) through 2.b(4) 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 (report the amortized cost at date of sale | ////////////////// |
or transfer) .................................................................................. | 1778 0 | M.7.
8. High-risk mortgage securities (included in the held-to-maturity and available-for-sale | ////////////////// |
accounts in Schedule RC-B, item 4.b): | ////////////////// |
a. Amortized cost ............................................................................. | 8780 0 | M.8.a.
b. Fair value ................................................................................. | 8781 0 | M.8.b.
9. Structured notes (included in the held-to-maturity and available-for-sale accounts in | ////////////////// |
Schedule RC-B, items 2, 3, and 5): | ////////////////// |
a. Amortized cost ............................................................................. | 8782 0 | M.9.a.
b. Fair value ................................................................................. | 8783 0 | M.9.b.
______________________
_____________
(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 items 2 and 6 are not applicable to savings banks that must complete supplemental Schedule RC-J.
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C> <C>
__________
Do not deduct the allowance for loan and lease losses from amounts | C415 | (-
reported in this schedule. Report total loans and leases, net of unearned _________________________________ ________
income. Exclude assets held for trading. | (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 2,547,770 | ////////////////// | 1.
a. Construction and land development ................................... | ////////////////// | 1415 527,540 | 1.a.
b. Secured by farmland (including farm residential and other | ////////////////// | ////////////////// |
improvements) ....................................................... | ////////////////// | 1420 17,748 | 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 784,981 | 1.c.(2)(a)
(b) Secured by junior liens ..................................... | ////////////////// | 5368 291,860 | 1.c.(2)(b)
d. Secured by multifamily (5 or more) residential properties ........... | ////////////////// | 1460 155,522 | 1.d.
e. Secured by nonfarm nonresidential properties ........................ | ////////////////// | 1480 770,119 | 1.e.
2. Loans to depository institutions: | ////////////////// | ////////////////// |
a. To commercial banks in the U.S. ..................................... | ////////////////// | 1505 1,840 | 2.a.
(1) To U.S. branches and agencies of foreign banks .................. | 1506 0 | ////////////////// | 2.a.(1)
(2) To other commercial banks in the U.S. ........................... | 1507 1,840 | ////////////////// | 2.a.(2)
b. To other depository institutions in the U.S. ........................ | 1517 10 | 1517 10 | 2.b.
c. To banks in foreign countries ....................................... | ////////////////// | 1510 27,894 | 2.c.
(1) To foreign branches of other U.S. banks ......................... | 1513 0 | ////////////////// | 2.c.(1)
(2) To other banks in foreign countries ............................. | 1516 30,894 | ////////////////// | 2.c.(2)
3. Loans to finance agricultural production and other loans to farmers .... | 1590 63,053 | 1590 63,053 | 3.
4. Commercial and industrial loans: | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ....................................... | 1763 5,508,687 | 1763 5,472,190 | 4.a.
b. To non-U.S. addressees (domicile) ................................... | 1764 177,066 | 1764 111,834 | 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 2,346,447 | 6.
a. Credit cards and related plans (includes check credit and other | ////////////////// | ////////////////// |
revolving credit plans) ............................................. | 2008 127,685 | ////////////////// | 6.a.
b. Other (includes single payment, installment, and all student loans) . | 2011 2,218,762 | ////////////////// | 6.b.
7. Loans to foreign governments and official institutions (including | ////////////////// | ////////////////// |
foreign central banks) ................................................. | 2081 153,840 | 2081 148,417 | 7.
8. Obligations (other than securities and leases) of states and political | ////////////////// | ////////////////// |
subdivisions in the U.S. (includes nonrated industrial development | ////////////////// | ////////////////// |
obligations) ........................................................... | 2107 17,446 | 2107 17,446 | 8.
9. Other loans ............................................................ | 1563 1,064,591 | ////////////////// | 9.
a. Loans for purchasing or carrying securities (secured and unsecured) . | ////////////////// | 1545 45,371 | 9.a.
b. All other loans (exclude consumer loans) ............................ | ////////////////// | 1564 1,019,220 | 9.b.
10. Lease financing receivables (net of unearned income) ................... | ////////////////// | 2165 150,422 | 10.
a. Of U.S. addressees (domicile) ....................................... | 2182 135,853 | ////////////////// | 10.a.
b. Of non-U.S. addressees (domicile) ................................... | 2183 14,569 | ////////////////// | 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 12,062,066 | 2122 11,951,914 | 12.
___________________________________________
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C> <C>
___________________________________________
| (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 and not reported as past due | ////////////////// | ////////////////// |
or nonaccrual in Schedule RC-N, Memorandum item 1): | ////////////////// | ////////////////// |
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. All other loans and all lease financing receivables (exclude loans to | ////////////////// |
individuals for household, family, and other personal expenditures) . | 8691 219,523 | M.2.b.
c. Commercial and industrial loans to and lease financing receivables | ////////////////// |
of non-U.S. addressees (domicile) included in Memorandum item 2.b | ////////////////// |
above ............................................................... | 8692 0 | M.2.c.
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 412,544 | M.3.a.(1)
(2) Over three months through 12 months ............................. | 0349 618,804 | M.3.a.(2)
(3) Over one year through five years ................................ | 0356 2,248,224 | M.3.a.(3)
(4) Over five years ................................................. | 0357 1,421,160 | M.3.a.(4)
(5) Total fixed rate loans and leases (sum of | ////////////////// |
Memorandum items 3.a.(1) through 3.a.(4)) ....................... | 0358 4,700,732 | M.3.a.(5)
b. Floating rate loans with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently .................................... | 4554 6,559,414 | M.3.b.(1)
(2) Annually or more frequently, but less frequently than quarterly . | 4555 519,123 | M.3.b.(2)
(3) Every five years or more frequently, but less frequently than | ////////////////// |
annually ........................................................ | 4561 118,330 | M.3.b.(3)
(4) Less frequently than every five years ........................... | 4564 31,362 | M.3.b.(4)
(5) Total floating rate loans (sum of Memorandum items 3.b.(1) | ////////////////// |
through 3.b.(4)) ................................................ | 4567 7,228,229 | 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 11,928,961 | M.3.c.
d. Floating rate loans with a remaining maturity of one year or less | ////////////////// |
(included in Memorandum items 3.b.(1) through 3.b.(4) above) ........ | A246 2,497,717 | M.3.d.
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 324,581 | M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, | ////////////////// |
above) ................................................................. | 5369 263,751 | 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 207,766 | 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.
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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-D, Part II is to be reported only with the June Report of Condition.
<S> <C> <C>
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 dollar volume of your bank's "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 dollar volume of your bank's "Commercial 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 (If your bank has no loans outstanding in both of these two loan categories, place an | C418 |(-
"X" in the box marked "NO" and go to item 5; otherwise, see instructions for further ____________ __________
information.) ........................................................................... | RCON YES NO |
_______________________
| 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 and your bank has loans outstanding in either loan category, 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: | RCON |//////////// |
______
a. "Loans secured by nonfarm nonresidential properties" in domestic | ////////////////// |
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 | Outstanding |
______________________|___________________|
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 781 | 5565 29,325 | 3.a.
b. With original amounts of more than $100,000 through $250,000 ............. | 5566 597 | 5567 67,240 | 3.b.
c. With original amounts of more than $250,000 through $1,000,000 ........... | 5568 656 | 5569 218,689 | 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 11,332 | 5571 231,918 | 4.a.
b. With original amounts of more than $100,000 through $250,000 ............. | 5572 1,410 | 5573 156,428 | 4.b.
c. With original amounts of more than $250,000 through $1,000,000 ........... | 5574 1,470 | 5575 417,209 | 4.c.
___________________________________________
</TABLE>
17a
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C>
Agricultural Loans to Small Farms
5. Indicate in the appropriate box at the right whether all or substantially all of the
dollar volume of your 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 dollar volume of your bank's
"Loans to finance agricultural production and other loans to farmers" in domestic
offices reported in Schedule RC-C, part I, item 3, column B, have original amounts
of $100,000 or less (If your bank has no loans outstanding in both of these two
loan categories, place an "X" in the box marked "NO" and do not complete items 7 YES NO
and 8; otherwise, see instructions for further information.) ...................... _____________________________
| 6860| |///| X | 5.
-----------------------------
If YES, complete items 6.a and 6.b below and do not complete items 7 and 8.
If NO and your bank has loans outstanding in either loan category, 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 _____________________
following Schedule RC-C, part I, loan categories: | Number of Loans |
_____________________
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 B ..... | 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 19 | 5579 519 | 7.a.
b. With original amounts of more than $100,000 through $250,000 ........... | 5580 13 | 5581 1,916 | 7.b.
c. With original amounts of more than $250,000 through $500,000 ........... | 5582 9 | 5583 2,232 | 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 125 | 5585 3,621 | 8.a.
b. With original amounts of more than $100,000 through $250,000 ........... | 5586 31 | 5587 3,701 | 8.b.
c. With original amounts of more than $250,000 through $500,000 ........... | 5588 18 | 5589 3,427 | 8.c.
___________________________________________
</TABLE>
17B
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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 off-balance sheet derivative contracts (as reported in Schedule RC-L, items 14.a through 14.e, columns A through D).
<S> <C> <C>
________
| C420 | (-
_________________ ________
Dollar Amounts in Thousands | ///////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
ASSETS | /////////////////////// |
1. U.S. Treasury securities in domestic offices ................................................ | RCON 3531 1,987 | 1.
2. U.S. Government agency and corporation obligations in domestic offices (exclude mortgage- | /////////////////////// |
backed securities) .......................................................................... | RCON 3532 255 | 2.
3. Securities issued by states and political subdivisions in the U.S. in domestic offices ...... | RCON 3533 3,477 | 3.
4. Mortgage-backed securities (MBS) in domestic offices: | /////////////////////// |
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA ..................... | RCON 3534 0 | 4.a.
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA | /////////////////////// |
(include CMOs, REMICs, and stripped MBS) ................................................. | RCON 3535 0 | 4.b.
c. All other mortgage-backed securities ..................................................... | 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 0 | 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 15 | 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 20,767 | 11.a.
b. In foreign offices ....................................................................... | RCFN 3544 0 | 11.b.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5) ........... | RCFD 3545 26,501 | 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 15,672 | 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item 15.b) ...... | RCFD 3548 15,672 | 15.
___________________________
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C> <C> <C>
__________
| 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 5,560,725 | 2240 5,158,932 | 2346 9,011,941 | 1.
2. U.S. Government ...................................... | 2202 39,213 | 2280 39,202 | 2520 245 | 2.
3. States and political subdivisions in the U.S. ........ | 2203 110,890 | 2290 47,345 | 2530 161,786 | 3.
4. Commercial banks in the U.S. ......................... | 2206 341,092 | 2310 341,092 | 2550 0 | 4.
5. Other depository institutions in the U.S. ............ | 2207 14,561 | 2312 14,561 | 2349 0 | 5.
6. Banks in foreign countries ........................... | 2213 15,563 | 2320 15,563 | 2236 0 | 6.
7. Foreign governments and official institutions | ////////////////// | ////////////////// | ////////////////// |
(including foreign central banks) .................... | 2216 1,413 | 2300 1,413 | 2377 0 | 7.
8. Certified and official checks ........................ | 2330 84,015 | 2330 84,015 | ////////////////// | 8.
9. Total (sum of items 1 through 8) (sum of | ////////////////// | ////////////////// | ////////////////// |
columns A and C must equal Schedule RC, | ////////////////// | ////////////////// | ////////////////// |
item 13.a) ........................................... | 2215 6,167,472 | 2210 5,702,123 | 2385 9,173,972 | 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 783,090 | 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. Maturity data for brokered deposits: | ////////////////// |
(1) Brokered deposits issued in denominations of less than $100,000 with a remaining | ////////////////// |
maturity of one year or less (included in Memorandum item 1.c.(1) above) ................ | A243 0 | M.1.d.(1)
(2) Brokered deposits issued in denominations of $100,000 or more with a remaining | ////////////////// |
maturity of one year or less (included in Memorandum item 1.b above) .................... | A244 0 | M.1.d.(2)
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 244,686 | M.1.e.
2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.d | ////////////////// |
must equal item 9, column C above): | ////////////////// |
a. Savings deposits: | ////////////////// |
(1) Money market deposit accounts (MMDAs) ................................................... | 6810 2,725,506 | M.2.a.(1)
(2) Other savings deposits (exclude MMDAs) .................................................. | 0352 2,929,288 | M.2.a.(2)
b. Total time deposits of less than $100,000 ................................................... | 6648 2,654,818 | M.2.b.
c. Time certificates of deposit of $100,000 or more ............................................ | 6645 849,161 | M.2.c.
d. Open-account time deposits of $100,000 or more .............................................. | 6646 15,199 | M.2.d.
3. All NOW accounts (included in column A above) .................................................. | 2398 465,349 | M.3.
4. Not applicable ______________________
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C>
Memoranda (continued)
______________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
5. Maturity and repricing data for time deposit of less than $100,000 (sum of Memorandum | ////////////////// |
items 5.a.(1) through 5.b.(3) must equal Memorandum item 2.b above):(1) | ////////////////// |
a. Fixed rate time deposits of less than $100,000 with a remaining maturity of: | ////////////////// |
(1) Three months or less ................................................................... | A225 796,609 | M.5.a.(1)
(2) Over three months through 12 months .................................................... | A226 1,166,979 | M.5.a.(2)
(3) Over one year........................................................................... | A227 619,730 | M.5.a.(3)
b. Floating rate time deposits of less than $100,000 with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently ........................................................... | A228 23,928 | M.5.b.(1)
(2) Annually or more frequently, but less frequently than quarterly ........................ | A229 33,700 | M.5.b.(2)
(3) Less frequently than annually........................................................... | A230 13,872 | M.5.b.(3)
c. Floating rate time deposits of less than $100,000 with a remaining maturity of one year | ////////////////// |
or less (included in Memorandum items 5.b.(1) through 5.b.(3) above) ....................... | A231 57,503 | M.5.c.
6. Maturity and repricing data for time deposits of $100,000 or more (i.e., time certificates | ////////////////// |
of deposit of $100,000 or more and open-account time deposits of $100,000 or more) | ////////////////// |
(sum of Memorandum items 6.a.(1) through 6.b.(4) must equal the sum of Memorandum items 2.c. | ////////////////// |
and 2.d above):(1) | ////////////////// |
a. Fixed rate time deposits of $100,000 or more with a remaining maturity of: | ////////////////// |
(1) Three months or less ................................................................... | A232 478,226 | M.6.a.(1)
(2) Over three months through 12 months .................................................... | A233 303,697 | M.6.a.(2)
(3) Over one year through five years ....................................................... | A234 68,142 | M.6.a.(3)
(4) Over five years ........................................................................ | A235 861 | M.6.a.(4)
b. Floating rate time deposits of $100,000 or more with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently ........................................................... | A236 10,723 | M.6.b.(1)
(2) Annually or more frequently, but less frequently than quarterly ........................ | A237 2,711 | M.6.b.(2)
(3) Every five years or more frequently, but less frequently than annually ................. | A238 0 | M.6.b.(3)
(4) Less frequently than every five years .................................................. | A239 0 | M.6.b.(4)
c. Floating rate time deposits of $100,000 or more with a remaining maturity of one year or | ////////////////// |
less (included in Memorandum items 6.b.(1) through 6.b.(4) above) ....................... | A240 10,696 | M.6.c.
----------------------
_____________
(1) Memorandum items 5 and 6 are not applicable to savings banks that must complete supplemental Schedule RC-J.
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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)
<S> <C> <C> <C>
____________________
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
Deposits of: | ////////////////// |
1. Individuals, partnerships, and corporations ................................................... | 2621 320,667 | 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 320,667 | 7.
______________________
Memorandum ____________________
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
1. Time deposits with a remaining maturity of one year or less (included in Part II, | ////////////////// |
item 7 above) ................................................................................. | A245 320,160 | M.1.
___________________________
Schedule RC-F--Other Assets
__________
| C430 | (-
_________________ ________
Dollar Amounts in Thousands | ////////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
1. Income earned, not collected on loans ........................................................ | RCFD 2164 102,082 | 1.
2. Net deferred tax assets(1) ................................................................... | RCFD 2148 98,069 | 2.
3. Excess residential mortgage servicing fees receivable ........................................ | RCFD 5371 0 | 3.
4. Other (itemize amounts that exceed 25% of this item) ......................................... | RCFD 2168 198,614 | 4.
_____________ NET SWAP INTEREST RECEIVABLE ___________________________
a. | TEXT 3549 | ---------------------------------------------------| RCFD 3549 | 59,963 | /////////////////////// | 4.a.
___________
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 398,765 | 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 27,012 | 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable) ................. | RCFD 3646 174,668 | 1.b.
2. Net deferred tax liabilities(1) .............................................................. | RCFD 3049 0 | 2.
3. Minority interest in consolidated subsidiaries ............................................... | RCFD 3000 0 | 3.
4. Other (itemize and describe amounts that exceed 25% of this item) ............................ | RCFD 2938 95,251 | 4.
_____________ UNSETTLED SECURITY PURCHASE AFS ___________________________
a. | TEXT 3552 |____________________________________________________| RCFD 3552 | 68,924 | /////////////////////// | 4.a.
___________
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 296,931 | 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.
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C>
________
| C440 | (-
____________ ________
| Domestic Offices |
____________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
_____________________________________________________________________________________________________ ____________________
1. Customers' liability to this bank on acceptances outstanding .................................... | 2155 10,277 | 1.
2. Bank's liability on acceptances executed and outstanding ........................................ | 2920 10,277 | 2.
3. Federal funds sold and securities purchased under agreements to resell .......................... | 1350 1,789,196 | 3.
4. Federal funds purchased and securities sold under agreements to repurchase ...................... | 2800 1,211,601 | 4.
5. Other borrowed money ............................................................................ | 3190 14,893 | 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 211,290 | 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement subsidiaries, and IBFs) . | 2192 20,676,867 | 8.
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement subsidiaries, and IBFs)| 3129 18,805,812 | 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 599,461 | 10.
11. U.S. Government agency and corporation obligations (exclude mortgage-backed | ////////////////// |
securities) .................................................................................... | 1785 36 | 11.
12. Securities issued by states and political subdivisions in the U.S. ............................. | 1786 299 | 12.
13. Mortgage-backed securities: (MBS) | ////////////////// |
a. Pass-through securities: | ////////////////// |
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA ............................................ | 1787 3,101,849 | 13.a.(1)
(2) Other pass-through securities ........................................................... | 1869 0 | 13.a.(2)
b. Other mortgage-backed securities (include CMOs, REMICs, and and stripped MBS): | ////////////////// |
(1) Issued or guaranteed by FNMA, FHLMC, GNMA ............................................... | 1877 0 | 13.b.(1)
(2) All other mortgage-backed securities .................................................... | 2253 3,268 | 13.b.(2)
14. Other domestic debt securities ................................................................. | 3159 0 | 14.
15. Foreign debt securities ........................................................................ | 3160 0 | 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 46,127 | 16.c.
17. Total held-to-maturity and available-for-sale securities (sum of items 10 through 16) .......... | 3170 3,751,040 | 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.
______________________
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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.
<S> <C> <C>
__________
| 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 5,108 | 1.
2. U.S. Treasury securities and U.S. Government agency and corporation obligations(2) ....... | RCFD 3382 3,826,844 | 2.
3. Securities issued by states and political subdivisions in the U.S.(2) .................... | RCFD 3383 299 | 3.
4. a. Other debt securities(2) .............................................................. | RCFD 3647 3,300 | 4.a.
b. Equity securities(3) (includes investments in mutual funds and Federal Reserve stock) . | RCFD 3648 46,127 | 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 616,920 | 5.
6. Loans: | /////////////////////// |
a. Loans in domestic offices: | /////////////////////// |
(1) Total loans ....................................................................... | RCON 3360 11,947,333 | 6.a.(1)
(2) Loans secured by real estate ...................................................... | RCON 3385 2,563,218 | 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers ............... | RCON 3386 65,149 | 6.a.(3)
(4) Commercial and industrial loans ................................................... | RCON 3387 5,998,153 | 6.a.(4)
(5) Loans to individuals for household, family, and other personal expenditures ....... | RCON 3388 2,340,499 | 6.a.(5)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs ............. | RCFN 3360 113,629 | 6.b.
7. Trading assets ........................................................................... | RCFD 3401 30,425 | 7.
8. Lease financing receivables (net of unearned income) ..................................... | RCFD 3484 152,674 | 8.
9. Total assets (4).......................................................................... | RCFD 3368 19,879,684 | 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 415,579 | 10.
11. Nontransaction accounts in domestic offices: | /////////////////////// |
a. Money market deposit accounts (MMDAs) ................................................. | RCON 3486 2,794,960 | 11.a.
b. Other savings deposits ................................................................ | RCON 3487 2,944,928 | 11.b.
c. Time certificates of deposit of $100,000 or more ...................................... | RCON 3345 842,531 | 11.c.
d. All other time deposits ............................................................... | RCON 3469 2,687,600 | 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement subsidiaries, and IBFs .. | RCFN 3404 343,692 | 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 1,220,916 | 13.
14. Other borrowed money ..................................................................... | RCFD 3355 27,745 | 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.
(4) The quarterly average for total assets should reflect all debt securities (not held for trading) at amortized cost,
equity securities with readily determinable fair values at the lower of cost or fair value, and equity securities
without readily determinable fair values at historical cost.
</TABLE>
23
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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.
<S> <C> <C>
___________
| 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 376,776 | 1.c.(1)
(2) Commitments to fund loans not secured by real estate ................................... | 6550 259,962 | 1.c.(2)
d. Securities underwriting .................................................................... | 3817 0 | 1.d.
e. Other unused commitments ................................................................... | 3818 7,920,509 | 1.e.
2. Financial standby letters of credit and foreign office guarantees ............................. | 3819 1,018,656 | 2.
___________________________
a. Amount of financial standby letters of credit conveyed to others | RCFD 3820 | 102,711 | ////////////////// | 2.a.
___________________________
3. Performance standby letters of credit and foreign office guarantees ........................... | 3821 61,809 | 3.
a. Amount of performance standby letters of credit conveyed to | ////////////////// |
___________________________
others .......................................................... | RCFD 3822 | 2,799 | ////////////////// | 3.a.
___________________________
4. Commercial and similar letters of credit ...................................................... | 3411 194,001 | 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 79,067 | 7.
8. Securities lent (including customers' securities lent where the customer is indemnified | ////////////////// |
against loss by the reporting bank) ........................................................... | 3433 17,973 | 8.
9. Loans 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)
d. Small business obligations transferred with recourse under Section 208 of the Reigle | ////////////////// |
Community Development and Regulatory Improvement Act of 1994: | ////////////////// |
(1) Outstanding principal balance of small business obligations transferred as of the | ////////////////// |
report date................................................................................. | A249 0 | 9.d.(1)
(2) Amount of retained recourse on these obligations as of the report date ................. | A250 0 | 9.d.(2)
10. When-issued securities: | ////////////////// |
a. Gross commitments to purchase .............................................................. | 3434 7,415 | 10.a.
b. Gross commitments to sell .................................................................. | 3435 6,975 | 10.b.
11. Spot foreign exchange contracts................................................................ | 8765 482,982 | 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet derivitives) (itemize and | ////////////////// |
describe each component of this item over 25% of Schedule RC, item 28, "Total equity capital"). | 3430 0 | 12.
_____________ _______________________________| ////////////////// |
a. | TEXT 3555 | | RCFD 3555 | | ////////////////// | 12.a.
--------------------------------------------------------------
b. | TEXT 3556 | | RCFD 3556 | | ////////////////// | 12.b.
--------------------------------------------------------------
c. | TEXT 3557 | | RCFD 3557 | | ////////////////// | 12.c.
--------------------------------------------------------------
d. | TEXT 3558 | | RCFD 3558 | | ////////////////// | 12.d.
-------------------------------------------------------------------------------------------------------------------
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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
<S> <C> <C> <C> <C> <C>
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
______________________________________ ____________________ ____________________ ____________________ ____________________
13. All other off-balance sheet assets (exclude off-balance sheet derivatives) (itemize and | ////////////////// |
describe each component of this item over 25% of Schedule RC, item 28, "Total equity | ////////////////// |
capital")....................................................................................... | 5591 0 | 13.
_____________ _______________________________| ////////////////// |
a. | TEXT 5592 | | RCFD 5592 | | ////////////////// | 13.a.
b. | TEXT 5593 | | RCFD 5593 | | ////////////////// | 13.b.
c. | TEXT 5594 | | RCFD 5594 | | ////////////////// | 13.C.
d. | TEXT 5595 | | RCFD 5595 | | ////////////////// | 13.d.
-------------------------------------------------------------------------------------------------------------------|
__________
| C461 | (-
|_________________________________________|_________________________________________
| (Column A) | (Column B) | (Column C) | (Column D) |
Dollar Amounts in Thousands | Interest Rate | Foreign Exchange | Equity Derivative | Commodity and |
_________________________________ | Contracts | Contracts | Contracts | Other Contracts |
Off-balance Sheet Derivatives |____________________|____________________|____________________|____________________|
Position Indicators | Tril Bil Mil Thou | Tril Bil Mil Thou | Tril Bil Mil Thou | Tril Bil Mil Thou |
______________________________________|____________________|____________________|____________________|____________________|
14. Gross amounts (e.g., notional | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
amounts) for each column, sum of | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
items 14.a through 14.e must | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
equal sum of items 15, 16.a, and | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
16.b): | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Futures contracts.............. | 0 | 0 | 0 | 0 | 14.a.
| RCFD 8693 | RCFD 8694 | RCFD 8695 | RCFD 8696 |
b. Forward contracts.............. | 33,476 | 320,460 | 0 | 0 | 14.b.
| RCFD 8697 | RCFD 8698 | RCFD 8699 | RCFD 8700 |
c. Exchange-traded option | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
contracts: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Written options............ | 1,500,000 | 0 | 0 | 0 | 14.c.(1)
| RCFD 8701 | RCFD 8702 | RCFD 8703 | RCFD 8704 |
(2) Purchased options.......... | 1,500,000 | 0 | 0 | 0 | 14.c.(2)
| RCFD 8705 | RCFD 8706 | RCFD 8707 | RCFD 8708 |
d. Over-the-counter option | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
contracts: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Written options............ | 275,423 | 0 | 0 | 1,025 | 14.d.(1)
| RCFD 8709 | RCFD 8710 | RCFD 8711 | RCFD 8712 |
(2) Purchased options.......... | 1,480,423 | 11,050 | 0 | 1,025 | 14.d.(2)
| RCFD 8713 | RCFD 8714 | RCFD 8715 | RCFD 8716 |
e. Swaps.......................... | 5,110,300 | 0 | 0 | 11,540 | 14.e.
| RCFD 3450 | RCFD 3826 | RCFD 8719 | RCFD 8720 |
15. Total gross notional amount of | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
derivative contracts held for | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
trading.......................... | 3,030,092 | 331,510 | 0 | 13,590 | 15.
| RCFD A126 | RCFD A127 | RCFD 8723 | RCFD 8724 |
16. Total gross notional amount of | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
derivative contracts held for | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
purposes other than trading: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Contracts marked to market..... | 2,185,000 | 0 | 0 | 0 | 16.a.
| RCFD 8725 | RCFD 8726 | RCFD 8727 | RCFD 8728 |
b. Contracts not marked to market. | 4,684,530 | 0 | 0 | 0 | 16.b.
| RCFD 8729 | RCFD 8730 | RCFD 8731 | RCFD 8732 |
_____________________________________________________________________________________
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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-L--Continued
<S> <C> <C> <C> <C> <C>
|_________________________________________|_________________________________________
______________________________________| (Column A) | (Column B) | (Column C) | (Column D) |
Dollar Amounts in Thousands | Interest Rate | Foreign Exchange | Equity Derivative | Commodity and |
______________________________________| Contracts | Contracts | Contracts | Other Contracts |
Off-balance Sheet Derivatives |____________________|____________________|____________________|____________________|
Position Indicators | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________|____________________|____________________|____________________|____________________|
17. Gross fair values of derivative | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
contracts: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Contracts held for trading: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Gross positive fair value. | 8733 23,570 | 8734 6,112 | 8735 0 | 8736 3,230 | 17.a.(1)
(2) Gross negative fair value. | 8737 18,724 | 8738 6,001 | 8739 0 | 8740 3,054 | 17.a.(2)
b. Contracts held for purposes | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
other than trading that are | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
marked to market: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Gross positive fair value. | 8741 743 | 8742 0 | 8743 0 | 8744 0 | 17.b.(1)
(2) Gross negative fair value. | 8745 2,787 | 8746 0 | 8747 0 | 8748 0 | 17.b.(2)
c. Contracts held for purposes | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
other than trading that are | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
not marked to market: | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Gross positive fair value. | 8749 52,042 | 8750 0 | 8751 0 | 8752 0 | 17.c.(1)
(2) Gross negative fair value. | 8753 955 | 8754 0 | 8755 0 | 8756 0 | 17.c.(2)
_____________________________________________________________________________________
____________________
Memoranda Dollar Amounts in Thousands | RCFD Bil Mil Thou |
__________________________________________________________________________________________________________________________
1.-2. Not applicable | ////////////////// |
3. Unused commitments with an original maturity exceeding one year that are reported in Schedule | ////////////////// |
RC-L, items 1.a thorugh 1.e, above (report only the unused portions of commitments that are fee | ////////////////// |
paid or otherwise legally binding).............................................................. | 3833 4,876,782 | M.3.
a. Participations in commitments with an original maturity | ////////////////// |
exceeding one year conveyed to others............................. | RCFD 3834 | 7,250 | ////////////////// | 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 46,326 | M.4.
5. 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 (to be completed for the | ////////////////// |
September report only)....................................................................... | 2741 N/A | M.5.a.
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY)................................... | 2742 0 | M.5.b.
c. All other consumer installment credit (including mobile home loans) (to be completed for the | ////////////////// |
September report only)....................................................................... | 2743 N/A | M.5.c.
______________________
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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--Memoranda
<S> <C> <C>
________
| 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 22,181 | 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 | 3 | ////////////////// | 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 5,072 | 5.a.
b. Non-U.S. addressees (domicile)............................................................... | 2104 5,205 | 5.b.
6. Intangible assets: | ////////////////// |
a. Mortgage servicing rights.................................................................... | 3164 0 | 6.a.
b. Other identifiable intangible assets: | ////////////////// |
(1) Purchased credit card relationships...................................................... | 5506 0 | 6.b.(1)
(2) All other identifiable intangible assets................................................. | 5507 106,238 | 6.b.(2)
c. Goodwill..................................................................................... | 3163 336,161 | 6.c.
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10)....................... | 2143 442,399 | 6.d.
e. Amount of intangible assets (included in item 6.b.(2) above) that have been grandfathered or | ////////////////// |
are otherwise qualifying for regulatory capital purposes..................................... | 6442 0 | 6.e.
7. Mandatory convertible debt, net of common or perpetual preferred stock dedicated to redeem | ////////////////// |
the debt........................................................................................ | 3295 0 | 7.
______________________
</TABLE>
- ----------------
(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.
27
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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-M--Continued
<S> <C> <C>
___________________________
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 2,523 | 8.a.(2)(a)
(b) Farmland in domestic offices ................................................ | RCON 5509 0 | 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices ....................... | RCON 5510 339 | 8.a.(2)(c)
(d) Multifamily (5 or more) residential properties in domestic offices .......... | RCON 5511 0 | 8.a.(2)(d)
(e) Nonfarm nonresidential properties in domestic offices ....................... | RCON 5512 10,781 | 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 13,643 | 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 products): | /////////////////////// |
a. Money market funds .................................................................. | RCON 6441 7,017,685 | 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 48,925 | 10.d.
e. Annuities ........................................................................... | RCON 8430 11,720 | 10.e.
f. Sales of proprietary actual funds and annuities (included in items 10.a through | /////////////////////// |
10.e above).......................................................................... | RCON 8784 4,047,691 | 10.f.
___________________________
_________________________________________________________________________________________________________________________________
| |
______________________
|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. |
| ______________________ |
| |
_________________________________________________________________________________________________________________________________
</TABLE>
28
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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--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 |
_______________________________________________________________________________________________________________________
<S> <C> <C> <C>
1. Loans secured by real estate: | //////////////////// | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ................ | 1245 | 1246 15,054 | 1247 68,846 | 1.a.
b. To non-U.S. addressees (domicile) ............ | 1248 0 | 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 ................................. | 5377 0 | 5378 0 | 5379 3 | 2.a.
b. To foreign banks ............................. | 5380 0 | 5381 0 | 5382 0 | 2.b.
3. Loans to finance agricultural production and | //////////////////// | ////////////////// | ////////////////// |
other loans to farmers .......................... | 1594 0 | 1597 0 | 1583 2,461 | 3.
4. Commercial and industrial loans: | //////////////////// | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ................ | 1251 0 | 1252 17,336 | 1253 57,982 | 4.a.
b. To non-U.S. addressees (domicile) ............ | 1254 0 | 1255 0 | 1256 35 | 4.b.
5. Loans to individuals for household, family, and | //////////////////// | ////////////////// | ////////////////// |
other personal expenditures: | //////////////////// | ////////////////// | ///////////////// |
a. Credit cards and related plans ............... | 5383 0 | 5384 272 | 5385 0 | 5.a.
b. Other (includes single payment, installment, | //////////////////// | ////////////////// | ////////////////// |
and all student loans) ....................... | 5386 0 | 5387 18,299 | 5388 2,495 | 5.b.
6. Loans to foreign governments and official | //////////////////// | ////////////////// | ////////////////// |
institutions .................................... | 5389 0 | 5390 0 | 5391 30 | 6.
7. All other loans ................................. | 5459 0 | 5460 11,174 | 5461 1,346 | 7.
8. Lease financing receivables: | //////////////////// | ////////////////// | ////////////////// |
a. Of U.S. addressees (domicile) ................ | 1257 0 | 1258 0 | 1259 0 | 8.a.
b. Of non-U.S. addressees (domicile) ............ | 1271 0 | 1272 0 | 1791 0 | 8.b.
9. Debt securities and other assets (exclude other | //////////////////// | ////////////////// | ////////////////// |
real estate owned and other repossessed assets) . | 3505 0 | 3506 0 | 3507 0 | 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 ............... | 5612 11,919 | 5613 15,221 | 5614 3,141 | 10.
a. Guaranteed portion of loans and leases | /////////////////// | ////////////////// | ////////////////// |
included in item 10 above .................... | 5615 0 | 5616 15,221 | 5617 2,513 | 10.a.
_________________________________________________________________
</TABLE>
29
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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-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 |
______________________________________________________ ____________________ ____________________ _____________________
<S> <C> <C> <C>
1. Restructured loans and leases included in | ////////////////// | ////////////////// | ////////////////// |
Schedule RC-N, items 1 through 8, above | ////////////////// | ////////////////// | ////////////////// |
(and not reported in Schedule RC-C, part I, | ////////////////// | ////////////////// | ////////////////// |
Memorandum item 2)............................... | 1658 0 | 1659 0 | 1661 0 | 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 ............. | 6558 0 | 6559 914 | 6560 1,604 | 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 ............ | 2759 0 | 2769 4,463 | 3492 42,747 | M.3.a.
b. Secured by farmland .......................... | 3493 0 | 3494 0 | 3495 260 | 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 ........... | 5398 0 | 5399 0 | 5400 0 | M.3.c.(1)
(2) All other loans secured by 1-4 family | ////////////////// | ////////////////// | ////////////////// |
residential properties ................... | 5401 0 | 5402 6,493 | 5403 10,118 | M.3.c.(2)
d. Secured by multifamily (5 or more) | ////////////////// | ////////////////// | ////////////////// |
residential properties ....................... | 3499 0 | 3500 941 | 3501 686 | M.3.d.
e. Secured by nonfarm nonresidential properties . | 3502 0 | 3503 3.157 | 3504 15,107 | 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 ...... | 3522 0 | 3528 0 | M.4.a.
b. Replacement cost of contracts with a | ////////////////// | ////////////////// |
positive replacement cost .................... | 3529 0 | 3530 0 | M.4.b.
___________________________________________
</TABLE>
30
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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--Other Data for Deposit Insurance Assessments
_________
| C475 | (-
____________ ________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
<S> <C> <C>
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 25,457 | 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 2,432 | 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, item 4 or 5, | ////////////////// |
column B) ................................................................................. | 2314 25 | 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule RC-E, Part I, item 4 | ////////////////// |
or 5, column A or C, but not column B) .................................................... | 2315 0 | 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1) | ////////////////// |
a. Unamortized premiums ...................................................................... | 5516 1,938 | 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.
</TABLE>
31
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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-O--Continued
______________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
<S> <C> <C>
11. Adjustments to demand deposits in domestic offices reported in Schedule RC-E for certain | ////////////////// |
reciprocal demand balances: | ////////////////// |
a. Amount by which demand deposits would be reduced if reciprocal demand balances between | ////////////////// |
the reporting bank and savings associations were reported on a net basis rather than a | ////////////////// |
gross basis in Schedule RC-E .............................................................. | 8785 0 | 11.a.
b. Amount by which demand deposits would be increased if reciprocal demand balances between | ////////////////// |
the reporting bank and U.S. branches and agencies of foreign banks were reported on a | ////////////////// |
gross basis rather than a net basis in Schedule RC-E ...................................... | A181 0 | 11.b.
c. Amount by which demand deposits would be reduced if cash items in process of collection | ////////////////// |
were included in the calculation of net reciprocal demand balances between the reporting | ////////////////// |
bank and the domestic offices of U.S. banks and savings associations in Schedule RC-E ..... | A182 12,262 | 11.c.
______________________
Memoranda (to be completed each quarter except as noted)
______________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
<S> <C> <C>
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 8,620,055 | 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 | 1,261,937 | ////////////////// | M.1.a.(2)
___________________________
b. Deposit accounts of more than $100,000: | ////////////////// |
(1) Amount of deposit accounts of more than $100,000 ........... Number | 2710 6,721,389 | M.1.b.(1)
___________________________
(2) Number of deposit accounts of more than $100,000 ........... | RCON 2722 | 17,080 | ////////////////// | 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.
____________________
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/phone number/extension (TEXT 8902)
</TABLE>
32
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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--Regulatory 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, 1995, must complete items 2 through 9 and Memoranda items 1 and 2. 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 |
| NOTE: All banks are required to complete items 2 and 3 below. | | and Intermediate | Limited- |
| See optional worksheet for items 3.a through 3.f. | | Term Preferred | Life Capital |
- -------------------------------------------------------------------- | Stock | Instruments |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
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 0 | 3790 0 | 2.e.
f. Over five years ....................................................... | 3785 345,000 | 3791 0 | 2.f.
___________________________________________
3. Amounts used in calculating regulatory capital ratios (report amounts | ////////////////// | RCFD Bil Mil Thou |
determined by the bank for its own internal regulatory capital analyses): | ////////////////// | __________________ |
a. Tier 1 capital ........................................................ | ////////////////// | 8274 1,301,429 | 3.a.
b. Tier 2 capital ........................................................ | ////////////////// | 8275 549,651 | 3.b.
c. Total risk-based capital .............................................. | ////////////////// | 3792 1,851,080 | 3.c.
d. Excess allowance for loan and lease losses ............................ | ////////////////// | A222 49,747 | 3.d.
e. Risk-weighted assets .................................................. | ////////////////// | A223 16,322,316 | 3.e.
f. "Average total assets" ................................................ | ////////////////// | A224 19,437,285 | 3.f.
___________________________________________
___________________________________________
| (Column A) | (Column B) |
Items 4-9 and Memoranda items 1 and 2 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 2,151,228 | ////////////////// | 4.a.(1)
(2) All other ......................................................... | 3795 543,280 | ////////////////// | 4.a.(2)
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3796 31,888 | 4.b.
___________________________________________
______________
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not report in column B the risk-weighted amount of assets reported in column A.
</TABLE>
33
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 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|
___________
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 |
______________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
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 434,311 | ////////////////// | 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 96,485 | ////////////////// | 5.a.(2)
(3) All other ..........................................................| 3800 5,251,140 | ////////////////// | 5.a.(3)
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3801 206,324 | 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 789,520 | ////////////////// | 6.a.
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3803 35,076 | 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 11,812,356 | ////////////////// | 7.a.
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3805 3,392,152 | 7.b.
8. On-balance sheet asset values excluded from the calculation of the | ////////////////// | ////////////////// |
risk-based capital ratio(2) .............................................. | 3806 (15,822)| ////////////////// | 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 21,062,498 | ////////////////// | 9.
___________________________________________
Memoranda ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
1. Current credit exposure across all off-balance sheet derivative contracts covered by the | ////////////////// |
risk-based capital standards .................................................................. | 8764 71,253 | M.1.
______________________
_________________________________________________________________
With a remaining maturity of
__________________________________________________________________
| (Column A) | (Column B) | (Column C) |
| One year or less | Over one year | Over five years |
| | through five years | |
__________________________________________________________________
| RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
_________________________________________________________________
<S> <C> <C> <C>
2. Notional principal amounts of off-balance sheet | //////////////////// | ////////////////// | ////////////////// |
derivative contracts(3): | //////////////////// | ////////////////// | ////////////////// |
a. Interest rate contracts ...................... | 3809 4,326,479 | 8766 3,219,976 | 8767 577,744 | M.2.a.
b. Foreign exchange contracts ................... | 3812 283,141 | 8769 48,368 | 8770 0 | M.2.b.
c. Gold contracts ............................... | 8771 0 | 8772 0 | 8773 0 | M.2.c.
d. Other precious metal contracts ............... | 8774 0 | 8775 0 | 8776 0 | M.2.d.
e. Other commodity contracts .................... | 8777 1,173 | 8778 11,392 | 8779 0 | M.2.e.
f. Equity derivative contracts .................. | A000 0 | A001 0 | A002 0 | M.2.f.
__________________________________________________________________
______________
(1) Do not report in column B the risk-weighted amount of assets reported in column A.
(2) 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.
(3) Exclude foreign exchange contracts with an original maturity of 14 days or less and all futures contracts.
</TABLE>
34
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031
Address: P.O. Box 2558 Page RC-25
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, 1996
<S> <C> <C>
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)
/s/ Kenneth L. Tilton
_____________________________________________ ________________________________
Signature of Executive Officer of Bank Date of Signature
</TABLE>
35
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926
Address: P.O. Box 2558
City, State Zip: Houston, TX 77252-2558
FDIC Certificate No.: |0|3|2|6|3|
___________
<S> <C>
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: 3/31/99
|
PLACE LABEL HERE | SPECIAL REPORT
| (Dollar Amounts in Thousands)
|
__________________________________________________________________
| CLOSE OF BUSINESS | FDIC Certificate Number | |
| DATE | | C-700 | (-
| 6/30/96 | |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 | 1 a.
____________________________
b. Total dollar amount of above loans (in thousands of dollars) ................................ | RCFD 3562 | 142 b.
_____________________________
c. Range of interest charged on above loans _______________________________________________________
(example: 9 3/4% = 9.75) .......................................... | RCFD 7701 | 7.88 | % to | RCFD 7702 | 7.88 | % c.
_______________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT | DATE (Month, Day, Year)
|
|
|
/s/ Kenneth L. Tilton Executive Vice President | 7-31-96
__________________________________________________________________________________________________________________________________
NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED (TEXT 8903) | AREA CODE/PHONE NUMBER/EXTENSION
| (TEXT 8904)
Karen Gatenby, Vice President | (713) 216-5263
|
__________________________________________________________________________________________________________________________________
FDIC 8040/53 (6-95)
</TABLE>
36
