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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
February 5, 1999 (February 2, 1999)
------------------
SERVICE EXPERTS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 001-13037 62-1639453
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(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification
Incorporation) Number)
Six Cadillac Drive
Suite 400
Brentwood, Tennessee 37027
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(Address of principal executive offices) (Zip Code)
(615) 371-9990
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
Service Experts, Inc., a Delaware corporation (the "Company"), operates
residential heating, ventilating and air-conditioning ("HVAC") service and
replacement businesses. In connection with the acquisition of HVAC businesses,
the Company plans to issue debt securities convertible into shares of its Common
Stock, $.01 par value per share, under the Company's shelf registration
statement on Form S-4 (File No. 333-12319). The Company is filing this Current
Report to file with the Securities and Exchange Commission certain agreements
relating to the issuance of such debt securities and a Form of Subordinated
Convertible Note to be issued in connection with certain acquisitions.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
4.1 Indenture, dated as of February 2, 1999, by the
Company to SunTrust Bank, Nashville, N.A., as Trustee
4.2 First Supplemental Indenture, dated as of February 2,
1999, by the Company to SunTrust Bank, Nashville,
N.A., as Trustee
4.3 Form of Subordinated Convertible Note
25 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939, as amended, of
SunTrust Bank, Nashville, N.A., pertaining to the
Company's Subordinated Convertible Notes
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
SERVICE EXPERTS, INC.
By: /s/ Anthony M. Schofield
----------------------------------
Anthony M. Schofield
Chief Financial Officer, Secretary
and Treasurer
Date: February 2, 1999
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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4.1 Indenture, dated as of February 2, 1999, by the Company to SunTrust
Bank, Nashville, N.A., as Trustee
4.2 First Supplemental Indenture, dated as of February 2, 1999, by the
Company to SunTrust Bank, Nashville, N.A., as Trustee
4.3 Form of Subordinated Convertible Note
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of SunTrust Bank, Nashville, N.A.,
pertaining to the Company's Subordinated Convertible Notes
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EXHIBIT 4.1
SERVICE EXPERTS, INC.
TO
SUNTRUST BANK, NASHVILLE, N.A.
TRUSTEE
INDENTURE
DATED AS OF FEBRUARY 2, 1999
SUBORDINATED DEBT SECURITIES
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SERVICE EXPERTS, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as amended (the
"1939 Act"), and Indenture, dated as of February 2, 1999.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
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<S> <C>
310(a)(1)...................................................................607
(a)(2)......................................................................607
(b)......................................................................608
312(c)......................................................................701
313(a)......................................................................702
(c)......................................................................702
314(a)(1), (2), (3).........................................................703
(a)(4)...................................................................1010
(c)(1)...................................................................102
(c)(2)...................................................................102
(e)......................................................................102
315(b)......................................................................601
316(a)(last sentence).......................................................101 ("Outstanding")
(a)(1)(A)................................................................502, 512
(a)(1)(B)................................................................513
(b)......................................................................508
317(a)(1)...................................................................503
(a)(2)...................................................................504
318(a)......................................................................112
(c)......................................................................112
</TABLE>
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Attention should also be directed to Section 318(c) of the
1939 Act, which provides that the provisions of Sections 310
to and including 317 of the 1939 Act are a part of and govern
every qualified indenture, whether or not physically contained
therein.
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TABLE OF CONTENTS
<TABLE>
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ARTICLE ONE.......................................................................................................1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...........................................................1
SECTION 101. Definitions................................................................................1
SECTION 102. Compliance Certificates and Opinions.......................................................9
SECTION 104. Acts of Holders...........................................................................10
SECTION 105. Notices, etc., to Trustee and Company.....................................................12
SECTION 106. Notice to Holders; Waiver.................................................................12
SECTION 107. Effect of Headings and Table of Contents..................................................13
SECTION 108. Successors and Assigns....................................................................13
SECTION 109. Separability Clause.......................................................................13
SECTION 110. Benefits of Indenture.....................................................................13
SECTION 111. No Personal Liability.....................................................................13
SECTION 112. Governing Law.............................................................................13
SECTION 113. Legal Holidays............................................................................14
ARTICLE TWO......................................................................................................14
SECURITIES FORMS.................................................................................................14
SECTION 201. Forms of Securities.......................................................................14
SECTION 202. Form of Trustee's Certificate of Authentication...........................................14
SECTION 203. Securities Issuable in Global Form........................................................15
ARTICLE THREE....................................................................................................15
THE SECURITIES...................................................................................................16
SECTION 301. Amount Unlimited; Issuable in Series......................................................16
SECTION 302. Denominations.............................................................................19
SECTION 303. Execution, Authentication, Delivery and Dating............................................19
SECTION 304. Temporary Securities......................................................................21
SECTION 305. Registration, Registration of Transfer and Exchange.......................................23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................26
SECTION 307. Payment of Interest; Interest Rights Preserved............................................27
SECTION 308. Persons Deemed Owners.....................................................................28
SECTION 309. Cancellation..............................................................................29
SECTION 310. Computation of Interest...................................................................29
ARTICLE FOUR.....................................................................................................30
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<TABLE>
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SATISFACTION AND DISCHARGE.......................................................................................30
SECTION 401. Satisfaction and Discharge of Indenture...................................................30
SECTION 402. Application of Trust Funds................................................................31
ARTICLE FIVE.....................................................................................................31
REMEDIES.........................................................................................................31
SECTION 501. Events of Default.........................................................................31
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................34
SECTION 504. Trustee May File Proofs of Claim..........................................................34
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons....................35
SECTION 506. Application of Money Collected............................................................35
SECTION 507. Limitation on Suits.......................................................................36
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or Make-Whole
Amount, if any, Interest and Additional Amounts...........................................36
SECTION 509. Restoration of Rights and Remedies........................................................37
SECTION 510. Rights and-Remedies Cumulative............................................................37
SECTION 511. Delay or Omission Not Waiver..............................................................37
SECTION 512. Control by Holders of Securities..........................................................37
SECTION 513. Waiver of Past Defaults...................................................................37
SECTION 514. Waiver of Usury, Stay or Extension Laws...................................................38
SECTION 515. Undertaking for Costs.....................................................................38
ARTICLE SIX......................................................................................................38
THE TRUSTEE......................................................................................................38
SECTION 601. Notice of Defaults........................................................................38
SECTION 602. Certain Rights of Trustee.................................................................39
SECTION 603. Not Responsible for Recitals or Issuance of Securities....................................40
SECTION 604. May Hold Securities.......................................................................40
SECTION 605. Money Held in Trust.......................................................................40
SECTION 606. Compensation and Reimbursement............................................................40
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests............................41
SECTION 608. Resignation and Removal; Appointment of Successor.........................................41
SECTION 609. Acceptance of Appointment By Successor....................................................42
SECTION 610. Merger, Conversion, Consolidation or Succession to Business...............................43
SECTION 611. Appointment of Authenticating Agent.......................................................44
ARTICLE SEVEN....................................................................................................46
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST..................................................................46
SECTION 701. Disclosure of Names and Addresses of Holders..............................................46
SECTION 702. Reports by Trustee........................................................................46
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<TABLE>
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SECTION 703. Reports by Company........................................................................46
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders.................................46
ARTICLE EIGHT....................................................................................................47
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE.................................................................47
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted
Subject to Certain Conditions.............................................................47
SECTION 802. Rights and Duties of Successor Corporation................................................47
SECTION 803. Officers' Certificate and Opinion of Counsel..............................................48
ARTICLE NINE.....................................................................................................48
SUPPLEMENTAL INDENTURES..........................................................................................48
SECTION 901. Supplemental Indentures Without Consent of Holders........................................48
SECTION 902. Supplemental Indentures with Consent of Holders...........................................49
SECTION 903. Execution of Supplemental Indentures......................................................50
SECTION 904. Effect of Supplemental Indentures.........................................................50
SECTION 905. Conformity with Trust Indenture Act.......................................................51
SECTION 906. Reference in Securities to Supplemental Indentures........................................51
SECTION 907. Notice of Supplemental Indentures.........................................................51
ARTICLE TEN......................................................................................................51
COVENANTS........................................................................................................51
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if any, Interest and
Additional Amounts.......................................................................51
SECTION 1002. Maintenance of Office or Agency..........................................................51
SECTION 1003. Money for Securities Payments to Be Held in Trust........................................53
SECTION 1004. Additional Covenants.....................................................................54
SECTION 1005. Existence................................................................................54
SECTION 1006. Maintenance of Properties................................................................54
SECTION 1007. Insurance................................................................................55
SECTION 1008. Payment of Taxes and Other Claims........................................................55
SECTION 1009. Provision of Financial Information.......................................................55
SECTION 1010. Statement as to Compliance...............................................................55
SECTION 1011. Additional Amounts.......................................................................55
SECTION 1012. Waiver of Certain Covenants..............................................................56
ARTICLE ELEVEN...................................................................................................57
REDEMPTION OF SECURITIES.........................................................................................57
SECTION 1101. Applicability of Article.................................................................57
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SECTION 1102. Election to Redeem; Notice to Trustee....................................................57
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........................................57
SECTION 1104. Notice of Redemption.....................................................................57
SECTION 1105. Deposit of Redemption Price..............................................................59
SECTION 1106. Securities Payable on Redemption Date....................................................59
SECTION 1107. Securities Redeemed in Part..............................................................60
ARTICLE TWELVE...................................................................................................60
[RESERVED].......................................................................................................60
ARTICLE THIRTEEN.................................................................................................60
[RESERVED].......................................................................................................60
ARTICLE FOURTEEN.................................................................................................60
DEFEASANCE AND COVENANT DEFEASANCE...............................................................................60
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance...............................................................................60
SECTION 1402. Defeasance and Discharge.................................................................60
SECTION 1403. Covenant Defeasance......................................................................61
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..........................................61
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.................................................................63
ARTICLE FIFTEEN..................................................................................................64
MEETINGS OF HOLDERS OF SECURITIES................................................................................64
SECTION 1501. Purposes for Which Meetings May Be Called................................................64
SECTION 1502. Call, Notice and Place of Meetings.......................................................64
SECTION 1503. Persons Entitled to Vote at Meetings.....................................................64
SECTION 1504. Quorum; Action...........................................................................65
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings......................66
SECTION 1506. Counting Votes and Recording Action of Meetings..........................................66
SECTION 1507. Evidence of Action Taken by Holders......................................................67
SECTION 1508. Proof of Execution of Instruments........................................................67
ARTICLE SIXTEEN..................................................................................................67
</TABLE>
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<TABLE>
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SUBORDINATION....................................................................................................67
SECTION 1601. Agreement to Subordinate.................................................................67
SECTION 1602. Liquidation; Dissolution; Bankruptcy.....................................................67
SECTION 1603. Default on Senior Debt...................................................................68
SECTION 1604. Acceleration of Securities...............................................................68
SECTION 1605. When Distribution Must Be Paid Over......................................................68
SECTION 1606. Notice by Company........................................................................68
SECTION 1607. Subrogation..............................................................................68
SECTION 1608. Relative Rights..........................................................................69
SECTION 1609. Subordination May Not Be Impaired by Company.............................................69
SECTION 1610. Distribution or Notice to Representative.................................................69
SECTION 1611. Rights of Trustee and Paying Agent.......................................................69
</TABLE>
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INDENTURE
INDENTURE, dated as of February 2, 1999, between SERVICE EXPERTS,
INC., a Delaware corporation (hereinafter called the "Company"), having its
principal office at Six Cadillac Drive, Brentwood, Tennessee 37027 and SUNTRUST
BANK, NASHVILLE, N.A., as Trustee hereunder (hereinafter called the "Trustee"),
having its Corporate Trust Office at 424 Church Street, 6th Floor, SunTrust
Financial Center, Nashville, Tennessee 37219.
RECITALS OF THE TRUST
The Company deems it necessary to issue from time to time for its
lawful purposes subordinated debt securities (hereinafter called the
"Securities") evidencing its unsecured indebtedness, and has duly authorized the
execution and delivery of this Indenture to provide for the issuance from time
to time of the Securities, unlimited as to aggregate principal amount, to bear
interest at the rates or formulas, to mature at such times and to have such
other provisions as shall be fixed therefor as hereinafter 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:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act (as defined below), either directly or by reference therein, have
the meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper," as used in Trust Indenture Act Section 311, shall have
the meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five, Article
Six and Article Ten, are defined in those Articles. In addition, the following
terms shall have the indicated respective meanings:
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"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security, under circumstances specified therein, to be paid by the Company in
respect of certain taxes imposed on certain Holders and which are owing to such
Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to bearer.
"Board of Directors" means either (i) the Board of Directors of the
Company, the executive committee or any other committee of directors of that
board duly authorized to act for it in respect hereof, or (ii) one or more duly
authorized officers of the Company to whom the Board of Directors of the Company
or a committee thereof has delegated the authority to act with respect to the
matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or a committee thereof, and to be in full force and
effect on the date of such certification, or (ii) a certificate signed by the
authorized officer or officers of the Company to whom the Board of Directors of
the Company or a committee thereof has delegated its authority (as described in
the definition of Board of Directors), and in each case delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking
2
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institutions in that Place of Payment or particular location are authorized or
required by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Depository" has the meaning specified in Section 304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chief Executive
Officer, the President or a Vice President of the Company, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Consolidated Net Worth" means, at any date, the stockholders' equity
of the Company at such date, less the amount of such stockholders' equity
attributable to treasury stock as determined on a consolidated basis in
accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
(other than the ECU or other currency unit) both by the government of the
country which issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities or (iii) any currency unit (or composite currency) other than the
ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 424 Church Street,
6th Floor, SunTrust Financial Center, Nashville, Tennessee 37219.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning set forth in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for payment of public and private debts.
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"DTC" means The Depository Trust Company.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered
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into pursuant to the applicable provisions hereof, and shall include the terms
of particular series of Securities established as contemplated by Section 301;
provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to principal
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
the Company to the Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel satisfactory to the
Trustee.
"Original Issue Discount Security" means any 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 502.
"Outstanding" when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
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(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or other provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except solely to the extent provided in
Sections 1402 or 1403, as applicable, with respect to which the Company
has effected defeasance and/or covenant defeasance as provided in
Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Capital Stock of the Company
pursuant to or in accordance with this Indenture if the terms of such
Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Trust Indenture Act Section 313, (i) the principal
amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Indexed Security pursuant to Section 301, and (iv)
Securities owned by the Company or any other obligor upon the 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 making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities, or coupons on behalf of the Company, or if no such Person is
authorized, the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium or
Make-Whole Amount, if any) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date" means, when used with respect to any Security to be
redeemed in whole or in part, the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security which is registered in the
Security Register.
"Regular Record Date" for the installment of interest payable on any
Interest Payment Date on the Registered Securities of or within any series means
the date specified for that purpose as contemplated by Section 301, whether or
not a Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid or repurchased at the option of the Holder, the date fixed for such
repayment or repurchase by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid or purchased at the option of the Holder, the price at which it is to be
repaid or repurchased by or pursuant to this Indenture.
"Representative" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Debt.
"Responsible Officer" means, when used with respect to the Trustee, any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder by the Commission.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such
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<PAGE> 15
Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of or within
any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means the principal of and interest on, or substantially
similar payments to be made by the Company in respect of, the following, whether
outstanding at the date of execution of this Indenture or thereafter incurred,
created or assumed: (a) indebtedness of the Company for money borrowed or
represented by purchase-money obligations, (b) indebtedness of the Company
evidenced by notes, debentures, or bonds, or other securities issued under the
provisions of an indenture, fiscal agency agreement or other instrument, (c)
obligations of the Company as lessee under leases of property either made as
part of any sale and lease-back transaction to which the Company is a party or
otherwise, (d) indebtedness of partnerships and joint ventures which is included
in the Company's consolidated financial statements, (e) indebtedness,
obligations and liabilities of others in respect of which the Company is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Company has agreed to purchase or otherwise
acquire, and (f) any binding commitment of the Company to fund any real estate
investment or to fund any investment in any entity making such real estate
investment; but excluding, however, (1) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the Securities, or ranks pari passu with the
Securities, (2) any such indebtedness, obligation or liability which is
subordinated to indebtedness of the Company to substantially the same extent as
or to a greater extent than the Securities are subordinated and (3) the
Securities. As used in the preceding sentence the term "purchase-money
obligations" shall mean indebtedness or obligations evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or other
security interest but excluding indebtedness or obligations for which recourse
is limited to the property purchased) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, but shall not include any trade accounts payable. A
distribution may consist of cash, securities or other property.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (within the meaning of Regulation S-X, promulgated under the
Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in such
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (a) the voting power of the voting equity
securities or (b) the outstanding equity interests of which are owned, directly
or indirectly, by such Person. For the purposes of this definition, "voting
equity securities" means equity securities having
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voting power for the election of directors, whether at all times or only so long
as no senior class of security has such voting power by reason of any
contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of or within any series shall
mean only the Trustee with respect to the Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, 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 person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is 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 of or any state
or the District of Columbia or an estate or trust the income of which is subject
to United States federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
predetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including covenants, compliance with which
constitute conditions precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the provisions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, whether in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient
(c) The ownership of Registered Securities shall be proved by the
Security Register or by a certificate of the Security Register.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depository, by any
trust company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent
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or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company at the address
of its principal office specified in the first paragraph of this Indenture or at
any other address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities, and if the Securities of such series are listed on any stock
exchange outside the United States, in any place at which such Securities are
listed on a securities exchange to the extent that such securities exchange so
requires, on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to
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Holders of Bearer Securities as shall be given with the approval of the Trustee
shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to any particular Holder of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of such notice with respect to other Holders of
Bearer Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons appertaining
thereto, express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and
their successors hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or coupon appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
promoter, as such, or against any past, present or future shareholder, officer
or director, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities.
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SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of Tennessee. This Indenture
is subject to the provisions of the TIA that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the duties imposed by TIA Section 318(c)
shall control.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or any Security or coupon other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu hereof), payment of interest or any Additional
Amounts or principal (and premium or Make-Whole Amount, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity, provided that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and related coupons of each series, shall be in
substantially the forms as shall be established in or pursuant to one or more
indentures supplemental hereto or Board Resolutions, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed,
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
SUNTRUST BANK, NASHVILLE, N.A.,
as Trustee
By:_________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and the provisions of Section 302, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Prior to the
issuance of Securities of any series, there shall be established in or pursuant
to the authority granted by one or more Board Resolutions, or indentures
supplemental hereto, any or all of the following, as applicable (each of which,
if so provided, may be determined from time to time by the Company with respect
to unissued Securities of or within the series when issued from time to time):
(1) the title of the Securities of or within the series (which shall
distinguish the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
or within the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of or within
the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of or within the series
shall be payable and the amount of principal payable thereon;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of or within the series shall bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest will be payable
and the Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and premium
or Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of or within the series shall be payable,
any Registered Securities of or within the series may be surrendered for
registration of transfer, exchange or conversion and notices or demands to or
upon the Company in respect of the Securities of or within the series and this
Indenture may be served;
(6) the period or periods within which, the price or prices (including
the premium or Make-Whole Amount, if any) at which, the currency or currencies,
currency unit or units or composite currency or currencies in which and other
terms and conditions upon which Securities of or within the series may be
redeemed in whole or in part, at the option of the Company, if the Company is to
have the option;
(7) the obligation, if any, of the Company to redeem, repay or purchase
Securities of or within the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods within
which or the date or dates on which, the price or prices at which, the currency
or currencies, currency unit or units or composite currency or currencies in
which, and other terms and conditions upon which
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Securities of or within the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of or within the
series shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of or within the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of or within the series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 502
or, if applicable, the portion of the principal amount of Securities of or
within the series that is convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in which
payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of or within the
series shall be payable or in which the Securities of or within the series shall
be denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of or within
the series may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity indices or
other indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of or within
the series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are denominated
or stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and manner of,
and identity of the exchange rate agent with responsibility for, determining the
exchange rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are denominated or
stated to be payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of or within the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of or within the
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(16) whether Securities of or within the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of or within the series may be exchanged
for Registered Securities of or within the series and vice versa (if permitted
by applicable laws and regulations), whether any Securities of or within the
series are to be issuable initially in temporary global form and
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<PAGE> 25
whether any Securities of or within the series are to be issuable in permanent
global form (with or without coupons) and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, and, if Registered Securities
of or within the series are to be issuable as a global Security, the identity of
the depository for such series;
(17) the date as of which any Bearer Securities of or within the series
and any temporary global Security representing Outstanding Securities of or
within the series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of or within the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of such
certificates, documents or conditions;
(21) if the Securities of or within the series are to be issued upon
the exercise of debt warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of or
within the series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms of
any such option);
(23) the obligation, if any, of the Company to permit the conversion of
the Securities of such series into shares of Capital Stock of the Company and
the terms and conditions upon which such conversion shall be effected
(including, without limitation, the initial conversion price or rate, the
conversion period, any adjustment of the applicable conversion price or rate and
any requirements relative to the reservation of such shares for purposes of
conversion);
(24) if convertible, any applicable limitations on the ownership or
transferability of the Capital Stock into which such Securities are convertible;
and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 905(4) and (5)).
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All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered or Bearer Securities issued in global form, as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order for authentication and delivery of such
Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to Securities
of any series denominated in Dollars, in the absence of any such provisions with
respect to the Securities of any series, the Registered Securities of such
series, other than Registered Securities issued in global form (which may be of
any denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chief Executive Officer, its President or a Vice
President, and attested by its Secretary or an Assistant Secretary. The
signature of any of these officers on the Securities and coupons may be manual
or facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities or coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. Except
as permitted by Section 306, the
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Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
If all of the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon:
(i) an Opinion of Counsel complying with Section 102 and stating that:
(a) the form or forms of such Securities and any coupons have
been, or will have been upon compliance with such procedures
as may be specified therein, established in conformity with
the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been, or
will have been upon compliance with such procedures as may be
specified therein, established in conformity with the
provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed pursuant to such procedures as may be
specified therein, and executed and delivered by the Company
to the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles and to such
other matters as may be specified therein; and
(ii) an Officers' Certificate complying with Section 102 and stating
that all conditions precedent provided for in this Indenture relating to the
issuance of such Securities have been, or will have been upon compliance with
such procedures as may be specified therein, complied with and that, to the best
of the knowledge of the signers of such certificate, no Event of Default with
respect to such Securities shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties, obligations or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver a Company Order, an Opinion of Counsel or
an Officers' Certificate otherwise required pursuant to the preceding paragraph
at the time of issuance of each Security of such series, but such order, opinion
and certificate, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
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Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security or the Security to which such coupon appertains a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued or sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive 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 appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary global Security shall,
unless otherwise provided therein, be delivered to the London office of a
depository or common depository (the "Common Depository"), for the benefit of
Euroclear and CEDEL.
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Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in an aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depository to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of or within the same series of authorized
denominations and of like tenor as the portion of such temporary global Security
to be exchanged. The definitive Securities to be delivered in exchange for any
such temporary global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Common Depository, such temporary
global Security, if any, is accompanied by a certificate dated the Exchange Date
or a subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary global Security, if any, held for its account then to
be exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear or CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear or CEDEL on
such Interest Payment Date upon delivery by Euroclear or CEDEL to the Trustee of
a certificate or certificates in the form set forth in Exhibit A-1 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest
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<PAGE> 30
Payment Date and who have each delivered to Euroclear or CEDEL, as the case may
be, a certificate dated no earlier than 15 days prior to the Interest Payment
Date occurring prior to such Exchange Date in the form set forth as Exhibit A-1
to this Indenture (or in such other forms as may be established pursuant to
Section 301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the date
of certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and until
such interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear or
CEDEL and not paid as herein provided shall be returned to the Trustee prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided.
In the event that the Trustee shall cease to be Security Registrar, it shall
have the right to examine the Security Register at all reasonable times and to
require that a copy of the Security Register in written form be delivered to it
from time to time as reasonably requested.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
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<PAGE> 31
If (but only if) permitted as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company 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 is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security 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 1002, 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.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified or
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depository for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Company or to a nominee of such
successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depository for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act if so required by applicable law or regulation, the Company
shall appoint a successor depository with respect to such global Security or
Securities. If (x) a successor depository 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 unwillingness, inability or ineligibility, (y)
an Event of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable series of
Securities represented by such global Security or Securities advise DTC to cease
acting as depository for such global Security or Securities or (z) the Company,
in its sole discretion, determines at any time that all Outstanding Securities
(but not less than all) of any series issued or issuable in the form of one or
more global Securities shall no longer be represented by such global Security or
Securities (provided, however, the Company may not make such determination
during the 40-day restricted period provided by Regulation S under the
Securities Act or during any other similar period during which the Securities
must be held in global form as may be
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<PAGE> 32
required by the Securities Act), then the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities of like series, rank, tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such global Security or Securities. If any beneficial owner
of an interest in a permanent global Security is otherwise entitled to exchange
such an interest for Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as specified as contemplated
by Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any
event not later than the earliest date on which such interest may be so
exchanged, the Company shall execute, and the Trustee shall authenticate and
deliver definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner's interest in such permanent global
Security. On or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered for exchange by
DTC or such other depository as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities to be
redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and provided
further that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any location
in the United States. If a Registered Security is issued in exchange for any
portion of a permanent global Security after the close of business at the office
or agency where such exchange occurs on (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
1103 and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as
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Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue or to register the transfer or
exchange of any Security which has been surrendered for repayment at the option
of the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of actual notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium or
Make-Whole Amount, if any), any interest on and any Additional Amounts with
respect to, Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to
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which a destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security and its coupons, if any, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, 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 that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account Euroclear or CEDEL, as the case may be, for the purpose of
permitting such party to credit the interest received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
In case a Bearer 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 Bearer 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 Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at the same
time the Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
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
on or 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 prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security Register
not less than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each place of
payment, but such publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer 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 Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium or Make-Whole Amount, if any), and (subject to Sections 305 and 307)
interest on, such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depository, as a Holder, with respect to
such global Security or impair, as between such depository and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Securities and
coupons and Securities and coupons surrendered directly to the Trustee for any
such purpose shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless by a Company Order the Company directs their
return to it.
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SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange of
Securities of such series herein expressly provided for and any right to receive
Additional Amounts, as provided in Section 1011), and the Trustee, upon receipt
of a Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required
or has been waived as provided in Section 305, (ii) Securities
and coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities called
for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section
1106, and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee
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for cancellation, for principal (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and payable)or the
Stated Maturity or Redemption Date, as the case may be;
(2) The Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003, shall survive.
In the event that there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of a particular series as to which it is
Trustee and if the other conditions thereto are met.
SECTION 402. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium or Make-Whole Amount, if any), and any interest and Additional Amounts
for whose payment such money has been deposited with or received by the Trustee,
but such money need not be segregated from other funds except to the extent
required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions relating to any
series of Securities as contemplated pursuant to Section 301, "Event of
Default," wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether or not it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of or within that series or of any
coupon appertaining
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thereto, when such interest, Additional Amounts or coupon becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor), having an
aggregate principal amount outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within a period of 10 days after there 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 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
and requiring the Company to cause such indebtedness to be discharged or cause
such acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(6) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Company or any of its Subsidiaries in
an aggregate amount (excluding amounts covered by insurance) in excess of
$10,000,000 and such judgments, orders or decrees remain undischarged, unstayed
and unsatisfied in an aggregate amount (excluding amounts covered by insurance)
in excess of $10,000,000 for a period of 30 consecutive days; or
(7) the Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
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(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary and the order or decree
remains unstayed and in effect for [90] days; or
(9) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11,
U.S. Code or any similar Federal or state law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, and the
Make-Whole Amount, if any, on, all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or
specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay in the currency, currency unit or composite currency in which the
Securities of such series is payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all
Outstanding Securities of that series and any related
coupons;
(B) the principal of (and premium or Make-Whole Amount,
if any, on) any Outstanding Securities of that series
which have become due otherwise than by such
declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such
Securities;
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(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or
rates borne by or provided for in such Securities;
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium or Make-Whole Amount,
if any) or interest on Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related coupon
when such interest or Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of any series at its Maturity, then
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium or Make Whole Amount, if any) and interest and Additional Amounts, with
interest upon any overdue principal (and premium or Make-Whole Amount, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest or Additional Amounts, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
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 on the Company for the payment of overdue principal, premium or
Make-Whole Amount, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file proofs of claim for the whole amount, or such lesser amount
as may be provided for in the Securities of such series, of principal (and
premium or Make-Whole Amount, if any) and interest and Additional Amounts, if
any, owing and unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium or
Make-Whole Amount, if any) or interest and any Additional Amounts, upon
presentation of the Securities or coupons, or both, as
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the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium or
Make-Whole Amount, if any) and interest and any Additional
Amounts payable, in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any), interest
and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupon shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, Interest and Additional Amounts
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of
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any such payment, and such rights shall not be impaired or affected without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders of Securities and coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and-Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of such
series not joining therein (but the Trustee shall have no obligation as to the
determination of such undue prejudice).
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable in respect of any
Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium or Make-Whole Amount, if any) or interest on or Additional Amounts
payable with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or in the case of redemption, on or after
the Redemption Date).
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to the extent provided in TIA Section 313(c), notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium or Make-Whole Amount, if any) or interest on or
any Additional Amounts with respect to any Security of such series, or in the
payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any default
or breach of the character specified in Section 501(4) of this Indenture with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Securities of such series.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee shall perform only such duties as are expressly
undertaken by it to perform under this Indenture;
(2) 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,
coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(3) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(4) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(5) the Trustee may consult with counsel and as a condition to the
taking, suffering or omission of any action hereunder may demand 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,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(6) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
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(7) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(8) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(9) the Trustee shall not be liable for any action taken, suffered 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.
The Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent
or any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on, or investment of, any money received by it
hereunder.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder, including extraordinary services rendered
in connection with or during the continuation of a default hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse each of
the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except to the extent any
such expense, disbursement or advance may be attributable to its negligence or
bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense, arising out of
or in connection with the acceptance or administration of the trust or trusts or
the performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder except to the extent any
such loss, liability or expense may be attributable to its own negligence or bad
faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium or Make-Whole Amount, if
any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests.
There shall at all times be a corporate Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a) and shall have a combined
capital and surplus of at least $10,000,000 or shall be a subsidiary of a
corporation which shall be a Person that has a combined capital and surplus of
at least $10,000,000 and which unconditionally guarantees the obligations of the
Trustee hereunder. If such Trustee or Person publishes reports of condition at
least annually, pursuant to law or the requirements of a Federal, State,
Territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Trustee
or Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within [30] days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor
by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section
607 of this Indenture and shall fail to resign after
written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder
of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or
any public officer shall take charge or control of
the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the authority granted by the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted appointment
in the manner hereinafter provided, any Holder of a Security who has been a bona
fide Holder of a 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
Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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SECTION 609. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible
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under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities or coupons
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption or repayment thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 301, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $25,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a
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successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment to all Holders of Securities of or within
the series with respect to which such Authenticating Agent will serve in the
manner set forth in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
___________________________, as Trustee
By:_____________________________________
as Authenticating Agent
By:_____________________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee.
If required by TIA Section 313(a), within 60 days after December 31 of
each year commencing with the first December 31 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such date.
SECTION 703. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company is required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then it will file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the 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;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
TIA Section 313(c), such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
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(a) semi-annually, not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered
Securities of such series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities, semi-annually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that, so long as the Trustee is the Security
Registrar, no such lists shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions.
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other Person,
provided that in any such case, (i) either the Company shall be the continuing
entity, or the successor (if other than the Company) entity shall be a Person
organized and existing under the laws of the United States or a State thereof
and such successor entity shall expressly assume the due and punctual payment of
the principal of (and premium or Make-Whole Amount, if any) and any interest
(including all Additional Amounts, if any, payable pursuant to Section 1011) on
all of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture, complying
with Article Nine hereof, satisfactory to the Trustee, executed and delivered to
the Trustee by such Person, (ii) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing and (iii) immediately
after giving effect to such transaction, the Consolidated Net Worth of the
Company (or the successor entity if the Company is not the continuing entity) is
equal to or greater than the Consolidated Net Worth of the Company immediately
prior to such transaction.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor entity, such successor entity
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
entity, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor entity
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor entity, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the
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officers of the Company to the Trustee for authentication, and any Securities
which such successor entity thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive an
Officers' Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and, if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that such
Events of Default are expressly being included solely for the benefit of such
series); provided, however, that in respect of any such additional Events of
Default 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 remedies available to the Trustee upon such default or
may limit the right of the Holders of a majority in aggregate principal amount
of that or those series of Securities to which such additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the
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payment of principal of or any premium, Make-Whole Amount or Interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination shall (i) not adversely affect the rights of the
Holders of any Security of any series created prior to the execution of such
supplemental indenture entitled to the benefit of such provision; or (ii) become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301, including the provisions
and procedures relating to Securities convertible into Capital Stock; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of this
Indenture or to make any other changes, provided that in each case, such
provisions shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(10) to close this Indenture with respect to the authentication and
delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the TIA; or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided in each case that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related coupons or
any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce
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the principal amount thereof or the rate or amount of interest thereon or any
Additional Amounts payable in respect thereof, or any premium or Make-Whole
Amount payable upon the redemption thereof, or change any obligation of the
Company to pay Additional Amounts pursuant to Section 1011 (except as otherwise
contemplated or permitted under this Indenture), or reduce the amount of the
principal of an Original Issue Discount Security or Make-Whole Amount, if any,
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place of Payment where, or
the currency or currencies, currency unit or units or composite currency or
currencies in which, the principal of any Security or any premium or Make-Whole
Amount or any Additional Amounts payable in respect thereof or the interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the Redemption
Date or the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase the required percentage to effect such action
or to provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding Security
affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution of such
supplemental indenture have been complied with. The Trustee may, but 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.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities
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theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and
premium or Make-Whole Amount, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1011 in respect
of principal of (or premium or Make-Whole Amount, if any, on) such a 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.
Unless otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may be paid
by check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company shall maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment or conversion, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that
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series and this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain: (A) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment or
conversion, where any Registered Securities of that series may be surrendered
for exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment or conversion in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of that series pursuant to Section
1011) or conversion; provided, however, that if the Securities of that series
are listed on the Luxembourg Stock Exchange, The International Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in Luxembourg, London or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange; and (C) subject to any laws or
regulations applicable thereto, in each Place of Payment for that series located
outside the United States an office or agency where any Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each 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, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1011) at the offices specified in the Security,
in London, England, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands, and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium, Make-Whole Amount or interest on
or Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the Securities of a
series are payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any Additional Amounts or Make-Whole
Amount payable on Securities of such series pursuant to Section 1011) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium, interest, Additional Amounts or Make-Whole Amount, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series and related coupons, if
any, may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance
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with the requirements set forth above for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (and premium or Make-Whole Amount, if
any), or interest on or Additional Amounts in respect of, any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (and premium or
Make-Whole Amount, if any) or interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or interest
on or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or units
or composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium, Make-Whole
Amount or interest or Additional Amounts and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities or Additional
Amounts in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any such payment of principal (and
premium or Make-Whole Amount, if any) or interest or Additional Amounts; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying
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Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium or Make-Whole Amount, if
any) or interest on, or any Additional Amounts in respect of, any Security of
any series and remaining unclaimed for two years after such principal (and
premium or Make-Whole Amount, if any), interest or Additional Amounts has become
due and payable shall be paid to the Company upon Company Request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal of (and premium or Make-Whole Amount, if
any) or interest on, or any Additional Amounts in respect of, any Security,
without interest thereon, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Additional Covenants.
The Company will do or cause to be done all such other things required
under any supplemental indenture executed in accordance with this Indenture.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the existence,
rights (charter and statutory) and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders of Securities of any
series.
SECTION 1006. Maintenance of Properties.
The Company will cause all of its properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company or any
Subsidiary from selling or otherwise disposing of for value its properties in
the ordinary course of its business.
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SECTION 1007. Insurance.
The Company will, and will cause each of its Subsidiaries to, keep all
of its insurable Properties insured against loss or damage at least equal to
their then full insurable value with financially sound and reputable insurance
companies.
SECTION 1008. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1009. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13 or 15(d) (the "Financial Statements") if the Company
were so subject, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so subject.
The Company will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, copies
of the annual reports and quarterly reports which the Company would have been
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Company were subject to such Sections, and (ii) file with
the Trustee copies of annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (y) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to any prospective Holder.
SECTION 1010. Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after the end
of each fiscal year a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this Section
1010, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1011. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining
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thereto Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context except in the case
of Section 502(1), the payment of the principal of or any premium, Make-Whole
Amount or interest on, or in respect of, any Security of any series or payment
of any related coupon or the net proceeds received on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or Make-Whole Amount 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 the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are not United States persons without withholding for or on account
of any tax, assessment or other governmental charge described in the Securities
of or within the series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent the
Additional Amounts, if any, required by the terms of such Securities. In the
event that the Trustee or any Paying Agent, as the case may be, shall not so
receive the above-mentioned certificate, then the Trustee or such Paying Agent
shall be entitled (i) to assume that no such withholding or deduction is
required with respect to any payment of principal or interest with respect to
any Securities of a series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of principal and
interest with respect to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. 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 or in reliance on the Company's not furnishing such an
Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1009, inclusive, and
with any other term, provision or condition with respect to the Securities of
any series specified in accordance with Section 301 (except any such term,
provision or condition which could not be amended without the consent of all
Holders of Securities of such series pursuant to Section 902), if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities of such series, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become
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effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of less than all of the Securities of any series, the Company
shall, at least 45 days prior to the giving of the notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 days nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified by the terms of such series established
pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect
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in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if any;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, that on and
after the Redemption Date, upon surrender of such Security, the holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if any,
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall cease to accrue on
and after said date;
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee for such
series and any Paying Agent is furnished;
(9) if 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 the
redemption on this Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be made;
(10) the CUSIP number of such Security, if any, provided that neither
the Company nor the Trustee shall have any responsibility for any such CUSIP
number; and
(11) if applicable, that a Holder of Securities who desires to convert
Securities to be redeemed must satisfy the requirements for conversion contained
in such Securities, the then existing conversion price or rate and the date and
time when the option to convert shall expire.
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Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's Request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that except as otherwise provided with respect to Securities convertible into
Capital Stock, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing 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 the Holder of such Security
shall surrender to the Trustee or any Paying Agent 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; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons. If any Security called
for redemption shall not be so paid upon surrender thereof
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for redemption, the principal (and premium or Make-Whole Amount, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge a
new Security or Securities of the same series, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
[RESERVED]
ARTICLE THIRTEEN
[RESERVED]
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
If, pursuant to Section 301, provision is made for either or both of
(a) defeasance of the Securities of or within a series under Section 1402 or (b)
covenant defeasance of the Securities of or within a series under Section 1403
to be applicable to the Securities of any series, then the provisions of such
Section or Sections, as the case may be, together with the other provisions of
this Article (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution at any time, with respect to such Securities and any
coupons appertaining thereto, elect to defease such Outstanding Securities and
any coupons appertaining thereto pursuant to Section 1402 (if applicable) or
Section 1403 (if applicable) upon compliance with the conditions set forth below
in this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any coupons appertaining thereto on the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall
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thereafter be deemed to be "Outstanding" only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all of its other obligations under such Securities
and any coupons appertaining thereto and this Indenture insofar as such
Securities and any coupons appertaining thereto are concerned (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive, solely
from the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium or Make-Whole
Amount, if any) and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B)the Company's obligations
with respect to such Securities under Sections 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1011, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article. Subject to compliance
with this Article Fourteen, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 1403 with
respect to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the option set forth in Section 1401
applicable to this Section with respect to any Securities of or within a series,
the Company shall be released from its obligations under Sections 1004 to 1009,
inclusive, and, if specified pursuant to Section 301, its obligations under any
other covenant, with respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set forth in Section
1404 are satisfied (hereinafter, "covenant defeasance"), and such Securities and
any coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with
Sections 1004 to 1009, inclusive, or such other covenant, but shall continue to
be deemed "Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section 501(4) or
501(9) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any coupons appertaining
thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons
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appertaining thereto (determined on the basis of the currency, currencies or
currency unit in which such Securities and coupons appertaining thereto are then
specified as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal
of (and premium or Make-Whole Amount, if any) and interest, if any, on such
Securities and any coupons appertaining thereto, money in an amount, or (3) a
combination thereof in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Outstanding Securities and any coupons appertaining
thereto on the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons appertaining thereto
on the day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons appertaining
thereto; provided, that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such Government Obligations to said payments
with respect to such Securities. Before such a deposit, the Company may give to
the Trustee, in accordance with Section 1102 hereof, a notice of its election to
redeem all or any portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption notice,
if given, shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound (and shall not cause the Trustee to have a conflicting interest
pursuant to Section 310(b) of the TIA with respect to any Security of the
Company).
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and any
coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(7) and 501(8) are concerned, at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of execution of this Indenture, there has been
a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto 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.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto 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.
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(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be) registration is not required
under the Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the Trustee for such
trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) After the 91st day following the deposit, the trust funds will not
be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of any Outstanding Securities of
any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable, as a result of such election or Conversion Event based
on the applicable market exchange rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
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The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more than 90
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who
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shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such meeting
and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five (5)
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum. Except as limited by
the proviso to Section 902, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as aforesaid may be adopted
by the affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether
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such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken
under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of or within the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors
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<PAGE> 74
of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the fact, setting
forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered
to the Company and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Holders of any or all series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Article Six) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a Holder or
his agent or proxy may be proved 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.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article, to the prior
payment in full of all Senior Debt and that the subordination is for the benefit
of the holders of Senior Debt.
SECTION 1602. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive payment in full
in cash of the principal of and interest (including interest accruing after the
commencement of any such proceeding) to the date of payment on the Senior Debt
before Holders shall be entitled to receive any payment of principal of or
interest on Securities;
(2) until the Senior Debt is paid in full in cash, any distribution to
which Holders would be entitled but for this Article shall be made to holders of
Senior Debt as
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their interests may appear, except that Holders may receive securities that are
subordinated to Senior Debt to at least the same extent as the Securities; and
(3) the Trustee is entitled to rely upon an order or decree of a court
of competent jurisdiction or a certificate of a bankruptcy trustee or other
similar official for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of Senior Debt and other Company
debt, the amount thereof or payable thereon and all other pertinent facts
relating to the Trustee's obligations under this Article Sixteen.
SECTION 1603. Default on Senior Debt.
The Company may not pay principal of or interest on the Securities and
may not acquire any Securities for cash or property other than capital stock of
the Company if:
(1) a default on Senior Debt occurs and is continuing that permits
holders of such Senior Debt to accelerate its maturity, and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of the default from a person who may give it pursuant to
Section 1611. If the Company receives any such notice, a similar notice received
within nine months thereafter relating to the same default on the same issue of
Senior Debt shall not be effective for purposes of this Section.
The Company may resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the
default is not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
SECTION 1604. Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. The Company may pay the Securities when 120 days pass after the
acceleration occurs if this Article permits the payment at that time.
SECTION 1605. When Distribution Must Be Paid Over.
If a distribution is made to Holders that because of this Article
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Debt and pay it over to them as
their interests may appear.
SECTION 1606. Notice by Company.
The Company shall promptly notify the Trustee and any Paying Agent of
any facts known to the Company that would cause a payment of principal of or
interest on Securities to violate this Article.
SECTION 1607. Subrogation.
After all Senior Debt is paid in full and until the Securities are paid
in full, Holders shall be subrogated to the rights of holders of Senior Debt to
receive distributions
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applicable to Senior Debt to the extent that distributions otherwise payable to
the Holders have been applied to the payment of Senior Debt. A distribution made
under this Article to holders of Senior Debt which otherwise would have been
made to Holders is not, as between the Company and Holders, a payment by the
Company on Senior Debt.
SECTION 1608. Relative Rights.
This Article defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of and interest
on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the Company
other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon an Event of Default, subject to the rights of holders of Senior
Debt to receive distributions otherwise payable to Holders.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a default.
SECTION 1609. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 1610. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
SECTION 1611. Rights of Trustee and Paying Agent.
The Trustee or any Paying Agent may continue to make payments on the
Securities until it receives written notice of facts that would cause a payment
of principal of or interest on the Securities to violate this Article. Only the
Company, a Representative or a holder of an issue of Senior Debt that has no
Representative may give the written notice.
The Trustee has no duty to the holders of Senior Debt other than as
expressly set forth in this Indenture. The Trustee in its individual or any
other capacity may hold Senior Debt with the same rights it would have if it
were not Trustee.
The Company's obligation to pay, and the Company's payment of, the
Trustee's fees pursuant to Section 606 are excluded from the operation of this
Article Sixteen.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers hereunto duly authorized, all as of
the day and year first above written.
SERVICE EXPERTS, INC.
By: /s/ Alan R. Sielbeck
---------------------------------------
Name: Alan R. Sielbeck
-------------------------------------
Title: Chief Executive Officer
------------------------------------
SunTrust Bank, Nashville, N.A., as Trustee
By: /s/ Faye McQuiston
---------------------------------------
Name: Faye McQuiston
-------------------------------------
Title: Assistant Vice President
------------------------------------
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<PAGE> 78
EXHIBIT A
FORMS OF CERTIFICATION
<PAGE> 79
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
(Insert title or sufficient description of Securities to be delivered)
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.
165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States Financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise ____________________ or its agent that such financial
institution will provide a certificate within a reasonable time stating that it
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by a financial institution for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1. 1635(c)(2)(i)(D)(7)), and, such financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), certifies that it has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
operating procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date. This certificate excepts and does not
related to __________________________ (U.S. $) of such interest in the
above-captioned Securities in respect of which we are not able to certify and as
to which we understand an exchange for an interest in a permanent global
Security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
A-1
<PAGE> 80
Dated: ______________, 19__ (To be dated no earlier than the 15th day
prior to the earlier of (i) the Exchange Date or (ii) the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable)
-------------------------------------------
(Name of Person Making Certification)
-------------------------------------------
(Authorized Signatory)
Name:
-------------------------------------
Title:
------------------------------------
A-2
<PAGE> 81
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
(Insert title or sufficient description of Securities to be delivered)
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, _____________
_________________________ (U.S. $) principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise ___________________ or its agent that such financial
institution will provide a certificate within a reasonable time stating that it
agrees to comply with the requirements of Section 165(j)(3)(A), (B), or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by a financial institution for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and that such financial institutions described in
clause (iii) above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia) and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
A-3
<PAGE> 82
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:_______________________ , 19__
(To be dated no earlier than the earlier
of the Exchange Date or the relevant
Interest Payment Date occurring prior
to the Exchange Date, as applicable)
--------------------------------
--------------------------------,
-------------------------------- as
--------------------------------
By: -----------------------------
A-4
<PAGE> 1
EXHIBIT 4.2
SERVICE EXPERTS, INC.
and
SUNTRUST BANK, NASHVILLE, N.A.
as Trustee
----------------
First Supplemental Indenture
Dated as of February 2, 1999
----------------
Supplement to Indenture dated as of February 2, 1999
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of February 2, 1999, between
Service Experts, Inc., a Delaware corporation (hereinafter called the
"Company"), having its principal office at Six Cadillac Drive, Suite 400,
Nashville, Tennessee 37027, and SunTrust Bank, Nashville, N.A., a national
banking association organized under the laws of the United States of America
(hereafter called the "Trustee"), having a Corporate Trust Office at 424 Church
Street, 6th Floor, SunTrust Financial Center, Nashville, Tennessee 37219, as
Trustee under the Indenture (as hereinafter defined).
RECITALS
WHEREAS, the Company and the Trustee have as of February 2,
1999 entered into an Indenture (hereinafter called the "Indenture"), providing
for the issuance by the Company from time to time of its subordinated debt
securities evidencing its unsecured and subordinated indebtedness (the
"Securities");
WHEREAS, no Securities have been issued under the Indenture;
WHEREAS, the Company desires to issue a new series of
subordinated debt securities under the Indenture, the "Notes" (as defined
below), and has duly authorized the creation of the Notes and the execution and
delivery of this First Supplemental Indenture to modify the Indenture and
provide certain additional provisions as hereinafter described; and
WHEREAS, the Company and the Trustee deem it advisable to
enter into this First Supplemental Indenture for the purposes of providing for
the rights, obligations and duties of the Trustee with respect to the Notes and
to set forth certain specific provisions with respect thereto;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company and the
Trustee covenant and agree, for the equal and proportionate benefit of all
Holders of the Notes, as follows:
ARTICLE ONE
CREATION OF THE NOTES
Section 1.01. Pursuant to the terms hereof and the Indenture,
the Company hereby creates a series of its Notes known as the "Subordinated
Convertible Notes," which series of Notes shall be deemed Securities for all
purposes of the Indenture.
Section 1.02. The definitive form of the Notes shall be
substantially in the form set forth in Exhibit A attached hereto, which is
incorporated herein and made part hereof. The Notes shall bear interest, be
payable and have such other terms as are stated in the form of definitive Note
or in the Indenture, as supplemented by this First
<PAGE> 3
Supplemental Indenture. The Notes shall be convertible into shares of the Common
Stock of the Company under the terms and conditions stated in the form of
definitive Note.
Section 1.03. The Notes shall not exceed $50,000,000 in
aggregate principal amount, and may, upon the execution and delivery of this
First Supplemental Indenture or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes to or upon the written order of
the Company, signed by its Chairman, President or a Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary,
without further action by the Company.
Section 1.04. The Trustee's certificate of authentication to
be borne by the Notes shall be substantially of the tenor and purport as
provided in the Indenture.
ARTICLE TWO
APPOINTMENT OF THE TRUSTEE FOR THE NOTES
Section 2.01. Pursuant and subject to the Indenture, the
Company and the Trustee hereby constitute the Trustee as trustee to act on
behalf of the Holders of the Notes, effective upon execution and delivery of
this First Supplemental Indenture. By execution, acknowledgment and delivery of
this First Supplemental Indenture, the Trustee hereby accepts appointment as
trustee with respect to the Notes, and agrees to perform such trusts upon the
terms and conditions set forth in the Indenture and in this First Supplemental
Indenture.
Section 2.02. Any rights, powers, duties and obligations by
any provisions of the Indenture conferred or imposed upon the Trustee shall,
insofar as permitted by law, be conferred or imposed upon and exercised or
performed by the Trustee with respect to the Notes.
ARTICLE THREE
EVENTS OF DEFAULT
Pursuant to Section 501 of the Indenture, so long as any of
the Notes are Outstanding, the following events shall replace Sections 501(1),
501(2), 501(7) and 501(8), respectively, of the Indenture as an Event of Default
with respect to any series of the Notes:
501(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of or within that series
or of any coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a period of
30 days after written notice of default shall have been received by the Company
from the holder of the Note.
501(2) default in the payment of the principal of (or premium
or Make-Whole Amount, if any, on) any Security of that series when it becomes
due and payable at
-2-
<PAGE> 4
is Maturity and continuance of such default for a period of 30 days after
written notice of default shall have been received by the Company from the
holder of the Note.
501(7) if the Company shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts as they
become due, or shall file a voluntary petition in bankruptcy, or shall be
adjudicated as bankrupt or insolvent, or shall file any petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file any answer admitting or not contesting the
material allegations of a petition filed against the Company in any such
proceeding, or shall seek or consent to or acquiesce in the appointment of any
custodian, trustee, receiver or liquidator of the Company or such subsidiary or
of all or any substantial part of the properties of the Company or such
subsidiary, or if the Company or its directors or majority shareholders shall
take any action looking to the dissolution or liquidation of the Company; or
501(8) if, within sixty (60) days after the commencement of an
involuntary bankruptcy proceeding or other action against the Company seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the business of the Company
stayed, or if the stay of any such order or proceeding shall thereafter be set
aside, or if, within sixty (60) days after the appointment without the consent
or acquiescence of the Company or any custodian, trustee, receiver or liquidator
of the Company or of all or any substantial part of the properties of the
Company, such appointments shall not have been vacated;
then, and in any such Event of Default, the holder thereof may at any time
(unless all defaults shall theretofore have been remedied) at its option, by
written notice to the Company, declare the Note to be due and payable, whereupon
the Note shall forthwith mature and become due and payable, together with
interest accrued and unpaid hereon, without presentment, demand, protest or
notice, all of which are hereby waived.
ARTICLE FOUR
MISCELLANEOUS
Section 4.01. Each and every term and condition contained in
the Indenture shall apply to this First Supplemental Indenture with the same
force and effect as if the same were herein set forth in full, with such
omissions, variations and modifications thereof as may be appropriate to make
the same conform to this First Supplemental Indenture. As supplemented by this
First Supplemental Indenture, the Indenture shall be read, taken and construed
as one and the same instrument; provided, however, that the rights, duties and
obligations of the Trustee in this First Supplemental Indenture shall be limited
to those matters expressly relating to the Notes.
Section 4.02. Nothing contained in this First Supplemental
Indenture shall or shall be construed to confer upon any person other than a
Holder of the Notes, the
-3-
<PAGE> 5
Company and the Trustee any right or interest to avail itself or himself, as the
case may be, of any benefit under any provision of the Indenture or this First
Supplemental Indenture.
Section 4.03. All capitalized terms which are used herein and
not otherwise defined herein are defined in the Indenture and are used herein
with the same meanings as in the Indenture.
Section 4.04. This First Supplemental Indenture shall be
effective as of the date first above written and upon the execution and delivery
hereof by each of the parties hereto.
Section 4.05. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of
Tennessee.
Section 4.06. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 4.07. This First Supplemental Indenture shall cease to
be of further effect upon compliance with Section 401 of the Indenture with
respect to the Notes created hereby.
-4-
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
SERVICE EXPERTS, INC.
By: /s/ Alan R. Sielbeck Dated: February 2, 1999
--------------------------------------
Name: Alan Sielbeck
-------------------------------------
Title: Chief Executive Officer
------------------------------------
SUNTRUST BANK, NASHVILLE, N.A.,
as Trustee
By: /s/ Faye McQuiston Dated: February 2, 1999
--------------------------------------
Name: Faye McQuiston
-------------------------------------
Title: Assistant Vice President
------------------------------------
-5-
<PAGE> 7
ACKNOWLEDGMENT
STATE OF TENNESSEE
) ss:
COUNTY OF DAVIDSON
On the 2nd day of February, 1999, before me personally came
Alan Sielbeck, to me known, who, being by me duly sworn, did depose and say that
he is the Chief Executive Officer of SERVICE EXPERTS, INC., one of the parties
described in and which executed the foregoing instrument, and that he signed his
name thereto by authority of the Board of Directors.
[Notarial Seal]
/s/ Joyce Maree Taylor
- -------------------------------------
Notary Public
Commission Expires 5-20-01
STATE OF TENNESSEE
) ss:
COUNTY OF DAVIDSON
On the 2nd day of February, 1999, before me personally came
Faye McQuiston, to me known, who, being by me duly sworn, did depose and say
that he/she is a Assistant Vice President of SunTrust Bank, Nashville, N.A., one
of the parties described in and which executed the foregoing instrument, and
that he/she signed his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
/s/ Tamara W. Fogarty
- -------------------------------------
Notary Public
Commission Expires 7-24-99
-6-
<PAGE> 1
Exhibit 4.3
THIS NOTE IS NONNEGOTIABLE
____% CONVERTIBLE SUBORDINATED NOTE
DUE ______________, 2003
$______________________ Nashville, Tennessee
_______________, 1999
SERVICE EXPERTS, INC., a Delaware corporation (the "Company"), for
value received, hereby promises to pay ________ ("Shareholder") the principal
amount of ________ ($________), together with accrued interest thereon at the
rate of ____% per annum (computed on the basis of a 365-day year) from the date
hereof. Principal shall be payable in four equal annual installments beginning
one year from the date hereof. Interest shall be payable quarterly on each
January 1, April 1, July 1 and October 1 after the date hereof. The final
principal installment and all accrued and unpaid interest shall be due and
payable _____ __, 2003 (the "Maturity Date"). Payments of principal and interest
on this Note shall be made in lawful money of the United States of America at
the principal office of Shareholder, or at such other office or agency as the
holder shall have designated by written notice to the Company. The Company shall
have the right to prepay this Note in whole or in part without penalty upon
thirty (30) days prior written notice.
1. Events of Default. If any of the following conditions or events
(each an "Event of Default" and collectively, the "Events of Default") shall
occur and be continuing:
(a) if the Company shall default in the payment of any
principal on this Note when the same becomes due and payable, whether at
maturity or otherwise, and such payment shall not have been made within thirty
(30) days after written notice of default shall have been received by the
Company from the holder of this Note; or
(b) if the Company shall default in the payment of any
interest on the Note when the same becomes due and payable and such default
shall continue more than thirty (30) days after written notice of default shall
have been received by the Company from the holder of this Note; or
(c) if the Company shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts as they
become due, or shall file a voluntary petition in bankruptcy, or shall be
adjudicated as bankrupt or insolvent, or shall file any petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file any answer admitting or not contesting the
material allegations of a petition filed against the Company in any such
proceeding, or shall seek or consent to or acquiesce in the appointment of any
custodian, trustee, receiver or liquidator of the Company or such subsidiary or
of all or any substantial part of the properties of the Company or such
subsidiary, or if the Company or its directors or majority shareholders shall
take any action looking to the dissolution or liquidation of the Company; or
<PAGE> 2
(d) if, within sixty (60) days after the commencement of an
involuntary bankruptcy proceeding or other action against the Company seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the business of the Company
stayed, or if the stay of any such order or proceeding shall thereafter be set
aside, or if, within sixty (60) days after the appointment without the consent
or acquiescence of the Company or any custodian, trustee, receiver or liquidator
of the Company or of all or any substantial part of the properties of the
Company, such appointments shall not have been vacated;
then, and in any such Event of Default, the holder hereof may at any time
(unless all defaults shall theretofore have been remedied) at its option, by
written notice to the Company, declare this Note to be due and payable,
whereupon this Note shall forthwith mature and become due and payable, together
with interest accrued and unpaid hereon, without presentment, demand, protest or
notice, all of which are hereby waived.
2. Conversion.
2.1 Conversion Privilege
2.1.1 Conversion by Shareholder. This Note may, at
the election of the holder hereof and at any time prior to the earlier of the
Maturity Date or the prepayment in full of this Note, be converted into the
number of fully paid and nonassessable shares of Common Stock, $0.01 par value
per share, of the Company (the "Common Stock") determined by dividing (x) the
principal amount being converted by (y) the conversion price of $______ (which
is 140% of the Closing Price), as adjusted from time to time in accordance with
Sections 2.4 and 2.5 hereof (such conversion price, as so adjusted and
readjusted and in effect at any time, being herein called the "Conversion
Price"). As used herein, "Closing Price" means the average closing sales price
of a share of the Common Stock as reported on the New York Stock Exchange for
the five trading days ending on the second trading day preceding the date
hereof.
2.1.2 Conversion by the Company. In the event the
closing sales price of a share of Common Stock as reported on the New York Stock
Exchange exceeds the Conversion Price on five (5) consecutive trading days, the
Company, at its election, may convert this Note into the number of fully paid
and nonassessable shares of Common Stock determined by dividing (x) the
principal amount outstanding by (y) the Conversion Price. Upon such conversion
and without any further action by the parties hereto, the holder hereof will not
be entitled to any additional principal or interest payments hereunder. Upon
receipt of written notice from the Company informing the holder of the
conversion of the Note, the holder shall convert the Note in accordance with the
provisions of Section 2.2 below.
2.2 Manner of Conversion, Partial Conversion, Etc.
2.2.1. Surrender of Note. This Note may be converted
by the holder hereof by surrender of this Note any time prior to the Maturity
Date, accompanied by written notice stating that such holder elects to convert
all or a portion of the principal amount thereof and stating the name or names,
together with addresses, in which the certificate or certificates for shares of
Common Stock are to be issued. Any conversion shall be deemed to have been
<PAGE> 3
effected (i) with respect to a conversion under Section 2.1.1, immediately prior
to the close of business on the date on which this Note shall have been so
surrendered to the Company and (ii) with respect to a conversion under Section
2.1.2, immediately prior to the close of business on the fifth consecutive
trading day that the closing sales price of a share of Common Stock as reported
on the New York Stock Exchange exceeds the Conversion Price; and at such time
the rights of the holder as to that portion of this Note so converted shall
cease, and the person in whose name or names any certificate or certificates for
shares of Common Stock (or other securities) shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record
thereof.
2.3. Delivery of Stock Certificates; Fractional Shares. As
promptly as practicable after the conversion of this Note in whole or in part,
and in any event within ten (10) days thereafter, the Company at its expense
will issue and deliver to the holder of this Note, or as such holder (upon
payment by such holder of any applicable transfer taxes and subject to
compliance with securities laws) may direct, a certificate or certificates for
the number of full shares of Common Stock issuable upon such conversion, plus,
in lieu of any fractional share to which such holder would otherwise be
entitled, cash equal to such fraction multiplied by the market value of one full
share of Common Stock as of the close of business on the date of such
conversion, as determined by the Board of Directors. Upon issuance, such
certificates may bear a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN
ACCORDANCE WITH THE TERMS OF THE LETTER AGREEMENT, DATED ___________,
1999, BETWEEN THE REGISTERED HOLDER HEREOF AND SERVICE EXPERTS, INC., A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF SERVICE
EXPERTS, INC."
2.4. Adjustment of Conversion Price. The Conversion Price
shall be adjusted from time to time as follows:
2.4.1. In case the Company shall hereafter (i) pay a
dividend or make a distribution on its Common Stock in shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares, or (iv) issue by reclassification of its Common Stock any
shares of capital stock of the Company, the Conversion Price in effect
immediately prior to such action shall be adjusted so that the Holder of this
Note or any portion hereof thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock or other capital stock
of the Company which he would have owned immediately following such action had
this Note or such portion hereof been converted immediately prior thereto. Any
adjustment made pursuant to this subsection 2.4.1 shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this subsection 2.4.1, the Holder of this Note or such portion
hereof thereafter surrendered for conversion shall become entitled to receive
shares of two or more classes of capital stock or shares of Common Stock and
other capital stock of the Company, the Board of Directors (whose determination
shall be conclusive) shall reasonably determine the allocation of the adjusted
Conversion Price between or among shares of such classes of capital stock or
shares of Common Stock and other capital stock.
<PAGE> 4
2.4.2. If the amount of any single adjustment of the
Conversion Price required pursuant to this subsection 2.4.2 would be less than
one cent ($0.01) at the time such adjustment is otherwise so required to be
made, such amount shall be carried forward and adjustment with respect thereto
made at the time of and together with any subsequent adjustment which, together
with such amount and any other amount or amounts so carried forward, shall
aggregate at least one cent ($0.01) when the Conversion Price is adjusted.
2.5. Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, Etc. If at any time the Company shall be a party to any
transaction (including without limitation a merger, consolidation, sale of all
or substantially all of the Company's assets or recapitalization of the Common
Stock) in which the previously outstanding Common Stock shall be changed into or
exchanged for different securities of the Company or changed into or exchanged
for common stock or other securities of another company or interests in a
noncorporate entity or other property (including cash) or any combination of any
of the foregoing (each such transaction being hereinafter referred to as the
"Transaction," the Company (in the case of a recapitalization of the Common
Stock) or such other company or entity (in each other case) being hereinafter
referred to as the "Acquiring Company," and the common stock (or equivalent
equity interests) of the Acquiring Company being hereinafter referred to as the
"Acquirer's Stock"), then as a condition to the consummation of the Transaction,
lawful and adequate provisions shall be made so that, upon the basis and the
terms and in the manner provided in this Section 2.5, the holder of this Note,
upon the conversion thereof at any time after the consummation of the
Transaction, shall be entitled to receive, in lieu of the Common Stock issuable
upon such conversion prior to such consummation the stock and other securities,
cash and property to which the holder would have been entitled upon the
consummation of the Transaction if the holder had converted this Note
immediately prior thereto (subject to adjustments from and after the date of the
consummation of the Transaction (the "Consummation Date") as nearly equivalent
as possible to the adjustments provided for in Section 2.4 and this Section
2.5).
2.6. Notices of Record Date, Etc. In the event of
(a) any action by the Company which would require an
adjustment to the Conversion Price pursuant to Section 2.4, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the Common Stock, any consolidation or
merger involving the Company and any other person, any transfer of all or
substantially all the assets of the Company to any other person or any other
transaction described in Section 2.5 hereof, or
(c) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
the Company will mail to the holder of this Note, at least ten (10) days prior
to the date of any action referred to in the notice referred to herein, a notice
specifying (i) the date on which any such record is to be taken for the purpose
of determining the holders of record of Common Stock entitled to receive such
dividend, distribution or right, and the amount and character of such dividend,
distribution or right, and (ii) the date or expected date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution,
<PAGE> 5
liquidation, winding-up or other transaction referred to in Section 2.4 or 2.5
hereof is to take place, and the time, if any such time is to be fixed, as of
which the holders of record of Common Stock shall be entitled or obligated to
exchange their shares of Common Stock for the securities or other property
deliverable upon such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation, winding-up or other
transaction referred to in Section 2.4 or 2.5 hereof. In addition, promptly
after the occurrence of any event which results in an adjustment of the
Conversion Price, the Company shall mail to the holder of this Note a notice of
such adjustment together with a statement setting forth the computations
relating thereto. Failing to give such notice or any default therein shall not
affect the legality or validity of the proceedings described in Subsection (a),
(b) or (c) of this Section 2.6.
2.7. Reservation of Stock, Etc., Issuable on Conversion. The
Company will at all times reserve and keep available, solely for issuance and
delivery upon the conversion of this Note, the number of shares of Common Stock
(or other securities), whether authorized but unissued shares reserved by it
which are free from preemptive rights or issued shares which have been
reacquired by it, from time to time issuable upon the conversion of this Note at
the time outstanding. The Company hereby covenants that all such securities
shall be duly authorized and, when issued upon such conversion, shall be validly
issued and, in the case of shares, fully paid and nonassessable with no
liability on the part of the holders thereof.
2.8. Conversion Agent. The Company may, upon ten (10) days
prior written notice to the holder of this Note, appoint a bank or trust company
as agent for the purpose of accepting this Note surrendered for conversion and
issuing Common Stock upon the conversion of this Note pursuant to Section 2.2,
and thereafter (as long as the authority of such agent shall continue in effect)
any such surrender and conversion and issuance shall be made at such office to
and by such agent.
3. Subordination.
3.1. Definition. For purposes of this Section 3.1 the term
"Senior Debt" shall mean any indebtedness for borrowed money, the payment of
which the Company is at the time of determination responsible or liable as
obligor, guarantor or otherwise, other than (a) indebtedness as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is expressly provided that such indebtedness is junior and
subordinate to other indebtedness and obligations of the Company, (b)
indebtedness which by its terms refers explicitly to this Note and states that
such indebtedness shall not be senior thereto and shall be equally subordinated
and equally junior, and (c) indebtedness of the Company in respect of this Note.
Senior Debt shall continue to be Senior Debt and entitled to the benefits of the
subordination provisions set forth herein irrespective of any amendment,
modification, or waiver of any term of the Senior Debt or extension or renewal
of the Senior Debt.
3.2. Note Subordinate to Senior Debt. The Company, for itself,
its successors and assigns, covenants and agrees, and each holder, by its
acceptance of this Note or any portion hereof, likewise covenants and agrees,
that this Note shall be subordinated and subject, to the extent and in the
manner herein set forth, in right of payment to the prior payment in full of all
Senior Debt. The provisions of this Section 3 are made for the benefit of all
holders of Senior Debt, and any such holder may proceed to enforce such
provisions.
<PAGE> 6
3.3. Other Subordinated Indebtedness. This Note shall rank on
a parity with all other of the Company's Subordinated Convertible Notes.
3.4. Payment Over of Proceeds Upon Dissolution, Etc. No
payment on account of principal of (or premium, if any) or interest on this Note
shall be made, if any default or event of default with respect to any Senior
Debt, which permits or with the giving of notice or passage of time or both
would permit the holders thereof (or a trustee on their behalf) to accelerate
the maturity thereof, shall have occurred and be continuing.
In the event this Note is declared due and payable
before the maturity date hereof, or upon any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, or upon any
assignment by the Company for the benefit of creditors or any other marshalling
of the assets of the Company, all principal of (and premium, if any) and
interest due or to become due upon all Senior Debt (including any interest
thereon occurring after the commencement of any such proceeding) shall first be
paid in full before the holder of this Note shall be entitled to retain any
assets (other than shares of stock of the Company as reorganized or readjusted
or securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated, at least
to the same extent as this Note, to the payment of all Senior Debt which may at
the time be outstanding, provided that the rights of the holders of the Senior
Debt are not altered by such reorganization or readjustment) so paid or
distributed in respect of this Note (for principal, premium, if any, or
interest); and upon such dissolution or winding-up or liquidation or
reorganization or assignment or marshalling of assets, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities (other than shares of stock of the Company as reorganized
or readjusted or securities of the Company or any other corporation provided for
by a plan or reorganization or readjustment, the payment of which is
subordinated, at least to the same extent as this Note, to the payment of all
Senior Debt which may at the time be outstanding or committed, provided that the
rights of the holders of the Senior Debt are not altered by such reorganization
or readjustment), to which the holders of this Note would be entitled, except
for the provisions of this Section, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, or by the holders of this Note if received
by them or it, directly to the holders of Senior Debt (pro rata to each such
holder as their interests may appear on the basis of the respective amounts of
Senior Debt held by such holder, including any interest thereon accruing after
the commencement of any such proceedings) or their representatives, to the
extent necessary to pay all Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt, before
any payment or distribution is made to the holders of this Note.
Should any payment, distribution, security or
proceeds thereof, the receipt of which is prohibited by this Agreement, be
received by the Shareholder prior to the satisfaction of all Senior Debt, the
Shareholder will forthwith deliver the same to the holders of the Senior Debt in
precisely the form received (except for the endorsement or assignment of the
Shareholder where necessary), for application on any indebtedness, due or not
due, of the Company to the Shareholder, and, until so delivered, the same shall
be held in trust by the Shareholder as property of the holders of the Senior
Debt. In the event of the failure of the Shareholder to make any such
endorsement or assignment, the holders of the Senior Debt, or any of their
officers or employees, are hereby irrevocably authorized to make the same.
<PAGE> 7
No holder of Senior Debt shall be prejudiced in his
right to enforce subordination of this Note by any act or failure to act on the
part of the Company.
Subject to the payment in full of all Senior Debt,
the holder of this Note shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company which, by its express terms, ranks on
a parity with this Note and is entitled to like rights of subrogation) to the
rights of the holders of Senior Debt to receive payments or distributions of
assets of the Company applicable to the Senior Debt until this Note shall be
paid in full. For purposes of such subrogation, no payments or distributions on
the Senior Debt pursuant to this Section shall, as between the Company, its
creditors other than the holders of Senior Debt, and the holder of this Note, be
deemed to be a payment by the Company to or on account of the Senior Debt, and
no payments or distributions to the holders of this Note of assets by virtue of
the subrogation herein provided for shall, as between the Company, its creditors
other than the holder of Senior Debt, and the holders of this Note, be deemed to
be a payment to or on account of this Note. The provisions of this Section are
and are intended solely for the purpose of defining the relative rights of the
holder of this Note, on the one hand, and the holders of Senior Debt, on the
other hand, and nothing contained in this Section or in this Note is intended to
or shall impair the obligation of the Company, which is unconditional and
absolute, to pay the principal of (and premium, if any) and interest on this
Note as and when the same shall become due and payable in accordance with its
terms, or to affect the relative rights of the holders of this Note and
creditors of the Company other than the holders of Senior Debt, nor shall
anything herein prevent the holders of this Note from exercising all remedies
otherwise permitted by applicable law upon default under this Note, subject to
the rights, if any, under this Section, of the holders of Senior Debt in respect
of cash, property or securities of the Company otherwise payable or delivered to
the holders of this Note upon the exercise of any such remedy.
Nothing contained in this Section 3.4 shall prevent
conversion of this Note.
4. Miscellaneous.
4.1. Governing Law. This Note shall be governed by the laws of
the State of Tennessee.
4.2. Notices. All notices delivered pursuant to the terms
hereof shall be deemed effective upon receipt thereof.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
by its duly authorized officer on the date first above written.
SERVICE EXPERTS, INC.
By:
---------------------------
Title:
-------------------------
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) X
-----
----------------------
SUNTRUST BANK, NASHVILLE, N.A.
(Exact name of trustee as specified in its charter)
62-0859925
(I.R.S. Employer Identification Number)
424 Church Street
6th Floor, SunTrust Financial Center
Nashville, Tennessee 37219
(Address of Principal Executive Offices)
37219
(Zip Code)
Farris, Warfield & Kanaday, PLC
424 Church Street, Suite 1800
SunTrust Financial Center
Nashville, Tennessee 37219
(615) 244-5200
(Name, address and telephone number of agent for service)
SERVICE EXPERTS, INC.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
62-1639453
(I.R.S. Employer Identification No.)
Six Cadillac Drive, Suite 400
Brentwood, Tennessee
(Address of principal executive officers)
37027
(Zip Code)
SUBORDINATED CONVERTIBLE NOTES
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject.
Name Address
---- -------
The Comptroller of the Currency Washington, D.C.
Federal Reserve Bank Atlanta, GA
Federal Deposit Insurance Corp. Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
The obligor is not an affiliate of the Trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting
securities of the Trustee:
As of January 31, 1999
Title of Class Amount Outstanding
-------------- ------------------
Common Stock 2,500,000 shares
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
None.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
Neither the Trustee nor 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.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Voting securities of the Trustee owned by the obligor
and its directors, partners and executive officers, taken as a
group, do not exceed one percent of the outstanding voting
securities of the Trustee.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Not applicable.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
The amount of securities of the obligor which the
Trustee owns beneficially or holds as collateral security for
obligations in default does not exceed one percent of the
outstanding securities of the obligor.
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
Not applicable.
2
<PAGE> 3
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee does not own beneficially or hold as
collateral security for obligations in default voting
securities of a person, who, to the knowledge of the Trustee,
(a) holds 10% or more of the voting securities of the obligor
or (b) is an affiliate, other than a subsidiary, of the obligor.
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.
The Trustee does not own beneficially or hold as
collateral security for obligations in default voting
securities of a person, who, to the knowledge of the Trustee,
owns 50 percent or more of the voting securities of the
obligor.
Item 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
<TABLE>
<CAPTION>
Nature of Indebtedness Amount Outstanding Date Due
---------------------- ------------------ --------
<S> <C> <C>
$30,000,000 revolving line of credit $24,050,000 as of January 31, 1999 Matures April 30, 2001
</TABLE>
Item 13. DEFAULTS BY THE OBLIGOR.
Not applicable.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
Not applicable.
Item 15. FOREIGN TRUSTEE
Not applicable.
Item 16. LIST OF EXHIBITS.
EXHIBIT 1 Articles of Association of SunTrust Bank,
Nashville, N.A. (See Exhibit 1 to Form T-1 filed
with Registration Statement No. 22-26192 which is
incorporated herein by reference.)
EXHIBIT 2 Certificate of Authority to commence business. (See
Exhibit 2 to Form T-1 filed with Registration
Statement No. 22-26192 which is incorporated herein
by reference.)
EXHIBIT 3 Authorization of the Trustee to exercise corporate
trust powers. (See Exhibit 3 to Form T-1 filed with
Registration Statement No. 22-26192 which is
incorporated herein by reference.)
EXHIBIT 4 Amended and Restated By-Laws of SunTrust Bank, Nashville,
N.A., dated November 25, 1991.
EXHIBIT 5 Not applicable.
EXHIBIT 6 Consent of SunTrust Bank, Nashville, N.A. required by
Section 321(b) of the Act. (Included on page 6 of this
Form T-1).
EXHIBIT 7 The latest report of condition of SunTrust Bank,
Nashville, N.A., dated as of September 30, 1998.
3
<PAGE> 4
EXHIBIT 8 Not Applicable.
EXHIBIT 9 Not Applicable.
EXHIBIT 10 Board Resolution Authorizing Change in Name from Third
National Bank to SunTrust Bank, Nashville, N.A.
4
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, SunTrust Bank, Nashville, N.A., a national banking association, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the city of Nashville, and state
of Tennessee, on the 2nd day of February, 1999.
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Faye McQuiston
---------------------------
Title: Assistant Vice President
------------------------
5
<PAGE> 6
CONSENT FOR RELEASE
The undersigned, as prospective trustee and as condition precedent to
qualification of such indenture, hereby consents to allow reports of
examinations by Federal, State, Territorial, or District authorities to be
furnished by such authorities to the Securities and Exchange Commission as
required by Section 321(b) of the Trust Indenture Act.
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Faye McQuiston
---------------------------
Title: Assistant Vice President
------------------------
6
<PAGE> 7
EXHIBIT 4
AMENDED AND RESTATED BY-LAWS
OF
THIRD NATIONAL BANK IN NASHVILLE
ARTICLE I: MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall
be held at such time and place, either within or without the State of Tennessee,
as may be designated from time to time by the directors. Unless the time is
otherwise specified by the directors, the meeting shall be held at the Main
Office of the association (hereinafter sometimes called "Bank") on the fourth
Monday in January of each year.
Section 2. Special Meetings. Except as otherwise specifically provided
by statute, special meetings of the shareholders may be called for any purpose
at any time by the board of directors, by the chairman, by the president, or by
any number of shareholders owning, in the aggregate, not less than 25% of the
stock of the association.
Section 3. Notice of Shareholder Meetings. Written or printed notice
stating the place, day, and hour of the meeting, and in the case of a special
meeting, the purpose or purposes for which the special meeting is called and the
person or persons calling the special meeting, shall be delivered by mail to
each shareholder entitled to vote at the meeting. The notice shall be delivered
not less than ten (10) nor more than sixty (60) days before the date of the
meeting, and the notice shall be deemed to be delivered when deposited in the
United States mail, postage prepaid, addressed to the shareholder at his/her
address as it appears on the records of the association. The person giving the
notice shall certify that the notice required by this paragraph has been given.
Any shareholder may waive his/her right to notice of annual or special meetings
of shareholders either before, during, or after any such meeting.
Section 4. Quorum Requirements. A majority of the capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
<PAGE> 8
Section 5. Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this association shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting. Proxies
shall be dated and shall be filed with the records pertaining to such meeting.
Section 6. Judges of Election. An election of directors shall be
managed by three (3) judges who shall be appointed by the board of directors.
The judges of election shall hold and conduct the election at which they are
appointed to serve; and, after the election, they shall file with the cashier,
or the secretary of the meeting, a certificate under their hands, certifying the
result thereof and the names of the directors elected. The judges of election,
at the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall certify the result thereof.
Provided, however, in the event the association has only one shareholder, such
shareholder, or such shareholder's proxy, may certify the results of the
election or of any other vote taken by ballot and such certification shall be in
lieu of the certification by three judges.
ARTICLE II: DIRECTORS
Section 1. Qualifications and Election. Directors must be between the
ages of 18 and 70 years. Each director must be a citizen of the United States
and own, in his/her own right, stock in the association having a par value of at
least $1,000 or, if another company has control of the association, stock in
that company in an amount equal to or greater than any one of the following: (i)
aggregate par value of $1,000; (ii) aggregate shareholders' equity of $1,000 or
(iii) aggregate fair market value of $1,000. At least two-thirds (2/3) of the
directors must be either residents of Tennessee or reside within 100 miles of
the Main Office of the association. A plurality of the votes cast at an annual
meeting of the shareholders shall elect the directors.
Section 2. Number. The number of directors shall be not less than five
(5) nor more than twenty-five (25), the exact number of which shall be fixed
from time to time by a majority of the entire board of directors, but shall
never be less nor more than the number required or permitted by law.
<PAGE> 9
Section 3. Nominations for Director. Nominations for election to the
board of directors may be made by the board of directors or by any shareholder
of any outstanding class of capital stock of the association entitled to vote
for the election of directors. Nominations, other than those made by or on
behalf of the existing management of the association, shall be made in writing
and shall be delivered or mailed to the president of the Bank and to the
Comptroller of the Currency, Washington, D.C., not less than fourteen (14) days
nor more than fifty (50) days prior to any meeting of shareholders called for
the election of directors, provided, however, that if less than twenty-one (21)
days notice of the meeting is given to shareholders, such nominations shall be
mailed or delivered to the president of the Bank and to the Comptroller of the
Currency not later than the close of business on the seventh (7th) day following
the day on which the notice of meeting was mailed. Such notification shall
contain the following information to the extent known to the notifying
shareholder: (a) the name and address of each proposed nominee; (b) the
principal occupation of each proposed nominee; (c) the total number of shares of
capital stock of the Bank that will be voted for each proposed nominee; (d) the
name and residence address of the notifying shareholder; and (e) the number of
shares of capital stock of the Bank owned by the notifying shareholder.
Nominations not made in accordance herewith may, in his/her discretion, be
disregarded by the chairman of the meeting and upon his/her instructions, the
judges of election may disregard all votes cast for each such nominee.
Section 4. Meetings.
(a) Annual Organization Meeting - The cashier or the secretary
of the meeting, upon receiving the certificate of the result of any election,
shall notify or cause to be notified, the directors-elect of their election and
of the time at which they are required to meet at the Main Office of the
association for the purpose of organizing the new board and electing and
appointing officers of the association for the succeeding year. Such meeting
shall be held during the first calendar quarter of each year at the time fixed
for the regular meeting of the board of directors. If, at the time fixed for
such meeting, there shall not be a quorum present, the directors present may
adjourn the meeting, from time to time, until a quorum is obtained.
(b) Regular Meetings - The regular meetings of the board of
directors shall be held at least every calendar quarter, with the schedule for
the succeeding twelve months being approved and announced at the Annual
Organization Meeting. Upon recommendation of the chairman of the board or the
president, the executive committee shall have the power to change the regular
meeting date, in which case written notice shall be mailed to each director at
least ten (10) days prior to the date of the meeting.
<PAGE> 10
(c) Special Meetings - Special meetings of the board of
directors may be called by the president, a vice chairman, or the chairman of
the association, or at the request of three (3) or more directors. Each member
of the board of directors shall be given notice stating the time and place by
telegram, letter or in person of each such special meeting. Any director having
actual notice of any meeting may, in writing, waive any required formal notice.
(d) Minute Book - It shall be the duty of the Secretary of
the Board to record in a minute book the organization papers of this Bank, the
certificates of elections, the proceedings of all regular and special meetings
of the Directors and of shareholders, the By-Laws and any amendments thereto,
and reports of the Committees of Directors; and the minutes of each meeting of
Directors and shareholders shall be signed by the presiding officer and attested
by the Secretary, or acting Secretary, of the Board.
Section 5. Eligibility. The policy of the association is to seek as
members of its board of directors active business and professional persons known
and respected for their character, ability and judgment. A director shall resign
when he/she attains the age of seventy (70) years or when, for whatever reason,
his/her primary business relationship which existed at the time of his/her
election as a director is terminated, whichever occurs earlier. A director
resigning due to the termination of his/her business relationship may be
re-elected.
Section 6. Advisory and Emeriti Directors.
(a) These By-Laws have previously provided for the election
of advisory directors. As of the conclusion of the board meeting on January 27,
1992, there shall be no advisory directors and no further provision for election
of same.
(b) The board of directors may, on January 27, 1992, elect
emeriti directors. Thereafter, there shall be no provision for election of new
emeriti directors; however, a person previously elected emeritus director shall
be eligible for re-election annually so long as his/her health permits his/her
service in this position.
(c) The emeriti directors may be invited to attend the
regular meeting of the board of directors to be held in December of each year.
<PAGE> 11
Section 7. Notice of Directors' Meeting. The annual organizational
meeting and all regular board of directors' meetings shall be held without
notice except as provided above. Special meetings shall be held upon notice sent
by any usual means of communication a reasonable time before the special
meeting, it being understood that urgency of the reason for calling the special
meeting will be a factor in determining what is reasonable notice. A director
may waive the right to receive notice before, during, or after a meeting.
Section 8. Quorum. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but a lesser
number may adjourn any meeting from time to time, and the meeting may be held,
as adjourned, without further notice. Any director may be counted toward a
quorum if, after any meeting, he/she reads and signs the minutes, which will
indicate his/her approval of all actions except as otherwise noted above his/her
signature. Approval of the minutes of any meeting by a subsequent meeting of
directors at which a quorum is present shall also validate the actions of the
prior meeting. Directors, participating by telephone under circumstances where
they can hear and be heard by all other participants, may vote and be counted
toward a quorum.
Section 9. Presiding Officer. At any meeting of the board of directors,
the chairman, if present, shall preside or in his/her absence the president of
the Bank shall preside. In the absence of both the chairman and the president,
the directors present by a majority vote may designate one of their number to
preside. The directors may also designate a secretary of the board who may, or
may not, be a director.
Section 10. Executive Committee. The executive committee shall be
composed of the chairman, the president, and no less than five (5) nor more than
ten (10) additional directors for twelve (12) month terms. The directors shall
elect one of the members of the executive committee to serve as its chairman,
and may also elect a vice chairman. The committee shall elect its own secretary
who may or may not be a member of the board of directors.
(a) Meetings of Executive Committee - The executive committee
shall meet at such times and places as the chairman, in his/her discretion, may
determine, or upon the call of any two (2) members of such committee. Any member
not present at any meeting may approve of the business transacted and thus be
counted toward a quorum by signing the minutes of the meeting which will
indicate his/her approval of all actions except as otherwise noted above his/her
signature.
<PAGE> 12
(b) Powers of Executive Committee - During intervals between
the meetings of the board of directors, the executive committee shall, except
where applicable law or these By-Laws restrict such power exclusively to the
board, possess and may exercise all of the powers of the board of directors in
determining all matters of policy and any other important matters not
specifically delegated to another committee or to the trust board by these
By-Laws. In the exercise of this function any action of the committee shall
require a majority vote of all members.
(c) Executive Committee Reports - It shall also be the duty
of the executive committee to submit a report to the board of directors at or
prior to each regular meeting of the board of directors. Such report shall
include all matters of policy and other important decisions made by the
committee since the previous report. Such report may be made by supplying to the
board of directors copies of the minutes of the executive committee reflecting
all action taken by such committee.
Section 11. Audit Committee. There shall be an audit committee composed
of not less than three (3) directors, exclusive of any active officers,
appointed by the board annually or more often, whose duty it shall be to make an
examination at least once during each calendar year and within 15 months of the
last such examination into the affairs of the Bank or cause suitable
examinations to be made by auditors responsible only to the board of directors.
The committee shall report the result of such examination(s) in writing to the
board at the next regular meeting thereafter. The committee shall report on the
condition of the Bank, stating whether adequate internal controls and procedures
are being maintained and recommending to the board such changes in the manner of
conducting the affairs of the Bank as shall be deemed advisable. All such
examinations and reports shall include the trust and investment management
division.
Section 12. Finance Committee. The finance committee shall be composed
of directors who are selected from time to time by the board of directors which
shall determine the number to be elected, the qualifications of the committee
members, the terms of office, and the quorum requirements. The board shall elect
one of the members to serve as chairman of the committee and may also select a
vice chairman. The finance committee shall elect its own secretary who may or
may not be a member of the board of directors.
(a) Meetings of Finance Committee - The finance committee
shall meet at such times and places as the chairman, in his discretion, may
determine, or upon the call of any two (2) members of such committee. Any
member not present at any meeting may approve the business transacted and thus
be counted toward the establishment of a quorum by signing the minutes of the
meeting which will indicate his/her approval of all actions except as otherwise
noted above his/her signature.
<PAGE> 13
(b) Duties of Finance Committee - The finance committee shall
require bank management to produce thorough and adequate reports in order to
review the quality of the loan portfolio and the adequacy of loan reserves. If,
as a result of any such review, the committee desires to recommend that any
action be taken, it shall send a recommendation of such action to the chief
executive officer and/or to the executive committee, as deemed appropriate.
Section 13. Other Committees. The board of directors shall have the
power to establish and appoint such other committees as from time to time may
appear to be advisable. The board shall have the power to determine the number,
composition, qualifications for membership of any such committees, and the
duties and functions of the committees. Each such committee shall have the power
to make its own rules not inconsistent with these By-Laws.
Section 14. Trust and Investment Management Board. The trust and
investment management board shall be composed of no less than seven and no more
than ten members. At least two of the members shall be officers of Third
National Bank and at least five of the members shall be statutory directors of
the Third National Bank. Members of the trust and investment management board
shall hold office for a period of one year or until their successors are duly
appointed.
(a) Duties of the Trust and Investment Management Board - It
shall be the duty of the trust and investment management board to review the
operations of the trust and investment management division of the bank and to
take such actions as it deems appropriate. A summary of such action shall be
reported to the board of directors.
(b) Meetings of the Trust and Investment Management Board -
The trust and investment management board shall meet at least quarterly at such
specific times and places as the chairman, in his/her discretion, shall
determine.
Section 15. Responsibility of the Board of Directors. The property and
business of the Bank shall be managed by its board of directors which may
exercise all powers and do all lawful acts permissible to be done by the board
of directors under the laws of the United States or the State of Tennessee and
under the Articles of Association and these By-Laws. Except as expressly limited
by law, all corporate powers of the association shall be vested in and may be
exercised by the board of directors. The board of directors only shall have the
power to approve loans to "insiders" where such approval is required by law or
regulation, to declare dividends, to recommend to shareholders any action
requiring shareholder approval, to amend, adopt or repeal
<PAGE> 14
By-Laws, to change the membership of any committee at any time, to fill
vacancies in any committee, to discharge any committee member, either with or
without cause, at any time, or to elect or discharge, as otherwise provided
herein, any director; and these powers shall not be deemed delegated to any
committee.
ARTICLE III: OFFICERS
Section 1. Number. The board of directors shall elect the chairman and
the president, both of whom shall be members of the board of directors. The
board may also elect one or more vice chairmen, senior executive vice
presidents, executive vice presidents, first vice presidents, senior vice
presidents, vice presidents, either a cashier or a secretary, and such other
officers as the board may from time to time deem necessary. The executive
committee also may elect executive vice presidents, first vice presidents,
senior vice presidents and vice presidents. The board may delegate to the chief
executive officer the power to fix salaries and to appoint all officers below
the title of executive vice president.
Section 2. Executive Officers. The chairman, the president, any vice
chairmen, senior executive vice presidents, and executive vice presidents shall
be deemed executive officers of the Bank.
Section 3. Executive Officers' Duties. The chairman, if present, shall
preside at all meetings of the board of directors and shall see that all orders
and resolutions of the board and executive committee are executed. The board of
directors at its organization meeting each year shall designate a chief
executive officer and may, at its discretion, appoint a chief administrative
officer of the Bank to serve for that year. The chief executive officer, the
chief administrative officer, if appointed, any vice chairman, senior executive
vice president or executive vice president shall have such authority and perform
such duties and functions as may be assigned to them by the board of directors.
Section 4. Other Officers' Duties. All officers with titles below the
rank of executive vice president shall have such duties and authorities as may
be given them by the chief executive officer, excluding major policy making
duties and authority.
Section 5. Execution of Contracts and Drawing of Checks.
(a) The board of directors or the executive committee may
direct that any officer may sign any official check. Within limits prescribed by
the board of directors or the executive committee, mechanical facsimile
signatures may be used.
<PAGE> 15
(b) All legal documents such as deeds, leases, bills of sale,
conveyances, contracts and other official documents not otherwise provided for,
may, in the absence of specific directions provided by the board or by the
executive committee, be signed an behalf of the Bank by the chairman, any vice
chairman, the president, or any executive vice president. Where no one of the
foregoing officers signs on behalf of the Bank, such document may be signed on
behalf of the Bank by any first vice president, senior vice president, vice
president, or the cashier, together with any other of the Bank's officers,
except that releases of liens or security interest, deeds of trust, mortgages,
and releases of assignments of life insurance policies may be signed on behalf
of the Bank by any officer of the Bank. Legal documents pertaining to the
business of the trust and investment management division may be signed by any
two of the trust officers or assistant trust officers. As to a particular
transaction, either (1) the executive committee, or (2) any one of the following
officers: the chairman, the president, vice chairman, and executive vice
president, may in writing authorize any one officer of the Bank, or any other
person, to sign on behalf of the Bank any or all documents related to such
transaction.
ARTICLE IV: RESIGNATIONS, REMOVALS AND VACANCIES
Section 1. Resignations - Any officer or director may resign at any
time by giving written notice to the chairman, the president, any vice chairman,
or the manager of the Human Resources Department. Any such resignation shall
take effect at the time specified in the resignation, or at such earlier time as
is deemed advisable by, in the case of an officer, his/her immediate supervisor,
or, in the case of a director, by the chairman or president.
Section 2. Removal of Officers. The board of directors may remove any
officer or agent whenever in the judgment of the board of directors the best
interest of the Bank will be served by the removal.
Section 3. Removal of Directors. Any or all of the directors may be
removed either with or without cause by a majority vote of the shareholders at
either a regular or special meeting, and any director may be removed with cause
by a majority vote of the entire board of directors.
Section 4. Vacancies. Newly created directorships resulting from an
increase in the number of directors, and vacancies occurring in any office or
directorship for any reason, including removal of an officer or director, may be
filled by the vote of a majority of the directors then in office, even if less
than a quorum exists.
<PAGE> 16
ARTICLE V: INDEMNIFICATION, LIABILITY INSURANCE, AND FIDELITY BOND
Section 1. Indemnified Parties; Reliance. Except as limited by Section
48-8-502(d) of the Tennessee Business Corporation Act ("TBCA"), every person
(and the heirs and personal representatives of such person) who is or was a
director, officer or employee of the association, or any other entity in which
he/she served as such at the request of the association, may be indemnified by
the association in accordance with the provisions of this Article V against any
and all liability and reasonable expense (including, without limitation, counsel
fees and disbursements, and amounts of judgments, fines or penalties against, or
amounts paid in settlement by, a director, officer or employee) that may be
incurred by him/her in connection with or resulting from any claim, action, suit
or proceeding, whether civil, criminal, administrative or investigative, or in
connection with any appeal relating thereto, in which he/she may become
involved, as a party or otherwise, or with which he/she may be threatened, by
reason of his/her being or having been a director, officer or employee of the
association or such other entity or by reason of any action taken or omitted by
him/her in his/her capacity as such director, officer or employee, whether or
not he/she continues to be such at the time such liability or expense shall have
been incurred. Each person who shall act as a director, officer or employee of
the association or any other entity referred to in this Section shall be deemed
to be doing so in reliance upon the right of indemnification provided for in
this Article V.
Section 2. Indemnification As of Right. Every person (and the heirs and
personal representatives of such person) referred to in Section 1 of this
Article V who has been wholly successful on the merits with respect to any
claim, action, suit or proceeding of the character described in Section 1, shall
be entitled to indemnification as of right.
Section 3. Indemnification Based on Review. Except as provided in
Section 2 of this Article V, any indemnification under this Article V shall be
made in the case of a claim, action, suit or proceeding only if the Board of
Directors, acting by a quorum consisting of directors who are not parties to
such claim, action, suit or proceeding, shall find, or if a quorum of
disinterested directors cannot be obtained, the Executive Committee of the Board
of Directors shall find, or independent special legal counsel [who shall be
selected in the manner prescribed by TBCA Section 48-8-506(b)(3) and limited by
TBCA Section 48-8-506(c)] shall find, or the shareholders (excluding shares
owned by or voted under the control of a director who is a party to the
proceeding) by the affirmative vote of a majority of the shares entitled to vote
thereon shall determine, that:
<PAGE> 17
(a) in his/her capacity as a director, the director acted in good faith
in what he/she reasonably believed to be the best interest of the
association or such other entity, as the case may be;
(b) in his/her capacity as an officer or employee of another entity, the
director of the association acted in good faith in what he/she
reasonably believed was not opposed to the best interests of the
association;
(c) in his/her capacity as an officer or employee of the association,
the officer or employee acted in good faith in what he/she reasonably
believed to be in the best interests of the association;
(d) in his/her capacity as a director, officer or employee of another
entity, the officer or employee of the association acted in good faith
in what he/she reasonably believed was not opposed to the best interests
of the association; and, in addition,
(e) in any criminal action or proceeding, the director, officer or
employee had no reasonable cause to believe that his/her conduct was
unlawful;
provided, however, that no indemnification under this Section shall be made with
regard to (i) any claim, issue or proceeding by or in the right of the
association as to which such director, officer or employee shall have been
adjudged to be liable to the association unless and only to the extent that the
court in which such action or suit was brought or another court of competent
jurisdiction shall determine that, despite the adjudication of liability but in
view of all the relevant circumstances of the case, such director, officer or
employee is fairly and reasonably entitled to indemnity for reasonable expenses
incurred which the court shall deem proper, or (ii) amounts paid, or expenses
incurred, in connection with the settlement of any such claim, action, suit or
proceeding, without the approval of a court of competent jurisdiction, or (iii)
in the case of any proceeding charging improper personal benefit to a director,
officer or employee other than by or in the right of the association, and such
director, officer or employee was adjudged liable on the basis that a personal
benefit was improperly received by him/her.
The termination of any claim, action, suit or proceeding, civil,
criminal, administrative, or investigative, by judgment, settlement (either with
or without court approval) or conviction, upon a plea of guilty or of nolo
contendere or its equivalent, is not, of itself, determinative that a director,
officer or employee did not meet the standards of conduct set forth in this
Section.
<PAGE> 18
Conduct by a director, officer or employee with respect to an employee
benefit plan for a purpose he/she reasonably believed to be in the interest of
the participants in and beneficiaries of the plan is conduct that is not opposed
to the best interest of the association.
Notwithstanding the above, no indemnification under this Section 3
shall be made in the case of an administrative proceeding or action instituted
by an appropriate bank regulatory agency which proceeding or action results in a
final order assessing civil money penalties against a director, officer or
employee of this association.
Section 4. Advances. Expenses incurred with respect to any claim,
action, suit or proceeding of the character described in Section 1 of this
Article V may be advanced by the association in accordance with TBCA Section
48-8-504 prior to the final disposition thereof.
Section 5. Indemnification Not Exclusive. To the extent permitted by
TBCA, the rights of indemnification provided in this Article V shall be in
addition to any rights to which any such director, officer, employee or other
person may otherwise be entitled by contract or as a matter of law.
Section 6. Insurance. This association may purchase insurance to
indemnify its directors, officers and employees to the maximum extent permitted
by the law of the State of Tennessee.
Section 7. Fidelity Bond. Each officer and employee of the Bank is
required to give bond of suitable amount with security to be approved by the
board of directors conditioned for the honest and faithful discharge of his/her
duties as such officer or employee. At the discretion of the board, such bonds
may be schedule or blanket form and the premiums shall be paid by the Bank. The
amount of such bonds, the form of coverage, and the name of the company
providing the surety therefor shall be reviewed each year by the board of
directors or by the executive committee within thirty (30) days following the
organizational meeting of the new board. Action shall be taken by the board or
the committee at that time approving the amount of the bond to be provided by
each officer and employee of the Bank for the ensuing year.
ARTICLE VI: CAPITAL STOCK
Section 1. Stock Certificates. Except when there are less than thirty
(30) shareholders, the certificates of stock for the Bank shall be numbered and
entered on the books as they are issued and shall show the holder's name and the
number of shares represented thereby. Stock certificates may be signed by any
two of the Bank's officers given such authority by the executive
<PAGE> 19
committee, but in the absence of definite instructions from the executive
committee the signatures of either the president, a vice president or the
cashier, together with any one of the other officers of the Bank, shall be
sufficient. Such signature may be manual, but also mechanical facsimile
signatures of Bank officers may be used but each such certificate shall be
authenticated by the signature of a person authorized to do so by the Bank. The
seal of the Bank shall be affixed on each certificate and the certificate shall
provide on the face thereof that the stock is transferable only on the books of
the Bank and upon transfer the certificates shall be returned to the Bank
canceled, preserved and new certificates issued. The Bank shall not be liable or
responsible to any transferee or pledgee of any certificate if the same shall
not have been delivered to the Bank and transferred into the name of the owner
or pledgee as required above. At any time there are less than thirty (30)
shareholders the ownership of shares may be indicated on the records of the Bank
without the necessity of issuing certificates.
Section 2. Transfer of Shares.
(a) The board of directors shall have power to close the stock
transfer books of the association for a period not exceeding thirty (30) days
preceding the date of any meeting of shareholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any change or
conversion or exchange of capital stock shall go into effect or for a period of
not exceeding thirty (30) days in connection with obtaining the consent of
shareholders for any purpose; provided, however, that in lieu of closing the
stock transfer books as aforesaid, the board of directors may fix in advance a
date, not exceeding thirty (30) days preceding the date of any meeting of
shareholders, or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining such
consent, as a record date for the determination of the shareholders entitled to
notice of, and to vote, at any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of capital stock, or to give such consent, and in such case such
shareholders and only such shareholders of record on the date so fixed shall be
entitled to such notice of, and to vote at such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the association after
any such record date fixed as aforesaid.
(b) At any time that all the shares are owned by one (1)
shareholder, compliance with sub-section (a), immediately preceding, shall not
be mandatory.
<PAGE> 20
ARTICLE VII: ACTION BY CONSENT OR BY POLLING
Whenever the shareholders, directors, members of the executive
committee, finance committee, or any other committee of the board, are required
or permitted to take any action by vote, the action may be taken without a
meeting on written consent, setting forth the action so taken, and signed by at
least two-thirds (2/3) of the total number of shareholders (or their proxies),
the directors or the members of the committee as appropriate. In cases where
some emergency or business necessity makes it necessary or highly desirable to
have some action taken by the board of directors, the directors may be polled
personally, by telephone, telegraph, facsimile or other means and any action
will be deemed the action of the entire board of directors if approved by a
two-thirds (2/3) majority of the entire board of directors even if not all the
directors were polled. All actions taken pursuant to this Article shall be
reviewed at the next regular meeting of the board of directors and either
reaffirmed or disapproved.
ARTICLE VIII: MISCELLANEOUS
(a) Seal - The following is an impression of the Seal adopted
by the board of directors of this association:
Any officer of the Bank shall have authority to affix the Corporate Seal of this
association and to attest the same.
(b) Additional or Alternative Meeting Dates - The dates
established herein for any committee or the trust board to meet may be changed
by such committee. Additional meetings of any committee or the trust board may
be called by the Chairman, the President or the executive committee.
ARTICLE IX: AMENDMENTS OF BY-LAWS
The Board of Directors shall have the power to make, amend, and repeal
the By-Laws of the Bank by a vote of a majority of all the directors; and these
By-Laws shall be automatically amended to conform from time to time with the
regulations of the Comptroller of the Currency, any statutes enacted by Congress
pertaining to national banks and, where applicable, any statutes of the State of
Tennessee.
<PAGE> 21
EXHIBIT 7
<TABLE>
<S> <C>
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
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 2001
</TABLE>
- --------------------------------------------------------------------------------
1
(FEDERAL FINANCIAL INSTITUTIONS EXAMINATION
COUNCIL LOGO) Please refer to page i,
Table of Contents, for
the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES -- FFIEC 031
(19980930)
REPORT AT THE CLOSE OF BUSINESS SEPTEMBER 30, 1998 ------------
(RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State member banks); 12
U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section 161
(National banks).
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.
- --------------------------------------------------------------------------------
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, Robert F. Ryan, Vice President
---------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that the Reports of Condition and Income
(including the supporting schedules) for this report date 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/ Robert F. Ryan
- ------------------------------------------------------
Signature of Officer Authorized to Sign Report
10/27/98
- ------------------------------------------------------
Date of Signature
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions.
We, the undersigned directors (trustees), attest to the correctness of the
Report of Condition (including the supporting schedules) for this report date
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/ John W. Clay, Jr.
- --------------------------------------------------------
Director (Trustee)
/s/ Sam Franklin, III
- --------------------------------------------------------
Director (Trustee)
/s/ Lipscomb Davis, Jr.
- --------------------------------------------------------
Director (Trustee)
- --------------------------------------------------------------------------------
SUBMISSION OF REPORTS
Each bank must prepare its Reports of Condition and Income either:
(a) in electronic form and then file the computer data file directly with the
banking agencies' collection agent, Electronic Data Systems Corporation
(EDS), by modem or on computer diskette; or
(b) in hard-copy (paper) form and arrange for another party to convert the
paper report to electronic form. That party (if other than EDS) must
transmit the bank's computer data file to EDS.
For electronic filing assistance, contact EDS Call Report Services, 2150 N.
Prospect Ave., Milwaukee, WI 53202, telephone (800) 255-1571.
To fulfill the signature and attestation requirement for the Reports of
Condition and Income for this report date, attach this signature page to the
hard-copy record of the completed report that the bank places in its files.
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
FDIC Certificate Number
------------
(RCRI 9050) -----------------------------------------------
Legal Title of Bank (TEXT 9010)
-----------------------------------------------
City (TEXT 9130)
-----------------------------------------------
State Abbrev. (TEXT 9200) ZIP Code (TEXT 9220)
</TABLE>
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE> 22
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D 'Cert #: 04955 RI-1
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
3
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1998 -- SEPTEMBER 30, 1998
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
SCHEDULE RI -- INCOME STATEMENT
I480<-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest Income:
a. Interest and fee income on loans:
(1) In domestic offices: RIAD
----
(a) Loans secured by real estate 4011 62,244 1.a.1.a
(b) Loans to depository institutions 4019 7,781 1.a.1.b
(c) Loans to finance agricultural production and
other loans to farmers 4024 476 1.a.1.c
(d) Commercial and industrial loans 4012 68,607 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 23 1.a.1.f.1
(2) Other 4055 26,450 1.a.1.f.2
(g) Loans to foreign governments and official
institutions 4056 0 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 2,248 1.a.1.h.2
(i) All other loans in domestic offices 4058 6,818 1.a.1.i
(2) In foreign offices, Edge and Agreement subsidiaries,
and IBFs 4059 0 1.a.2
b. Income from lease financing receivables:
(1) Taxable leases 4505 6,378 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 77 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
obligations 4027 17,315 1.d.1
(2) Securities issued by states and political subdivisions
in the U.S.:
(a) Taxable securities 4506 316 1.d.2.a
(b) Tax-exempt securities 4507 1,660 1.d.2.b
(3) Other domestic debt securities 3657 0 1.d.3
(4) Foreign debt securities 3658 9 1.d.4
(5) Equity securities (including investments in mutual
funds) 3659 904 1.d.5
e. Interest income from trading assets 4069 0 1.e
</TABLE>
- ------------
(1) Includes interest income on time certificates of deposits not held for
trading.
<PAGE> 23
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RI-2
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
4
SCHEDULE RI -- CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Interest income (continued)
RIAD YEAR-TO-DATE
f. Interest income on federal funds sold and securities purchased ----
under agreements to resell 4020 13,065 1.f
g. Total interest income (sum of items 1.a through 1.f) 4107 214,371 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 1,134 2.a.1.a
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs) 4509 29,902 2.a.1.b.1
(2) Other savings deposits 4511 2,322 2.a.1.b.2
(3) Time deposits of $100,000 or more A517 11,626 2.a.1.b.3
(4) Time deposits of less than $100,000 A518 19,668 2.a.1.b.4
(2) Interest on deposits in foreign offices, Edge and agreement
subsidiaries, and IBFs 4172 9,503 2.a.2
b. Expense of federal funds purchased and securities sold under
agreements to repurchase 4180 27,879 2.b
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and on other borrowed money 4185 9,018 2.c
d. Not applicable
e. Interest on subordinated notes and debentures 4200 0 2.e
f. Total interest expense (sum of items 2.a through 2.e) 4073 111,052 RIAD 2.f
----
3. Net interest income (item 1.g minus 2.f) 4074 103,319 3.
4. Provisions:
a. Provision for credit losses 4230 2,726 4.a
b. Provision for allocated transfer risk 4243 0 4.b
5. Noninterest income: RIAD
----
a. Income from fiduciary activities 4070 17,784 5.a
b. Service charges on deposit accounts in domestic offices 4080 16,488 5.b
c. Trading revenue (must equal Schedule RI, sum of Memorandum
items 8.a through 8.d) A220 0 5.c
d. -e. Not applicable
f. Other noninterest income:
(1) Other fee income 5407 19,785 5.f.1
(2) All other noninterest income* 5408 7,267 RIAD 5.f.2
----
g. Total noninterest income (sum of items 5.a through 5.f) 4079 61,324 5.g
6. a. Realized gains (losses) on held-to-maturity securities 3521 0 6.a
b. Realized gains (losses) on available-for-sale securities 3196 (77) 6.b
7. Noninterest expense: RIAD
----
a. Salaries and employee benefits 4135 40,145 7.a
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage interest) 4217 8,234 7.b
c. Other noninterest expense* 4092 45,477 RIAD 7.c
----
d. Total noninterest expense (sum of items 7.a through 7.c) 4093 93,856 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) 4301 67,984 8.
9. Applicable income taxes (on item 8) 4302 24,616 9.
10. Income (loss) before extraordinary items and other adjustments
(item 8 minus 9) 4300 43,368 10.
11. Extraordinary items and other adjustments, net of income taxes* 4320 0 11
12. Net income (loss) (sum of items 10 and 11) 4340 43,368 12.
</TABLE>
- ----------
* Describe on Schedule RI-E - Explanations.
<PAGE> 24
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RI-3
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
5
SCHEDULE RI - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------
1481<-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
MEMORANDA
1. Interest expense incurred to carry tax-exempt securities, RIAD YEAR-TO-DATE
loans, and leases acquired after August 7, 1986, that is ----
not deductible for federal income tax purposes 4513 423 M.1
2. Income from the sale and servicing of mutual funds and
annuities in domestic offices (included in Schedule RI, item 8) 8431 4,508 M.2
3. - 4. Not applicable
5. Number of full-time equivalent employees on payroll at end NUMBER
of current period (round to nearest whole number) 4150 1,089 M.5
6. Not applicable
7. If the reporting bank has restated its balance sheet
as a result of applying push accounting this calendar year, CCYY / MM / DD
report the date of the bank's acquisition 9106 N/A 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):
a. Interest rate exposures 8757 0 M.8.a
b. Foreign exchange exposures 8758 0 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 90 M.9.a
b. Net (increase) decrease to interest expense 8762 0 M.9.b
c. Other (noninterest) allocations 8763 0 M.9.c
10. Credit losses on off-balance sheet derivatives
(see instructions) A251 0 M.10
11. Does the reporting bank have a Subchapter S election
in effect for federal income tax purposes for the Yes / No
current tax year? A530 NO M.11
12. Deferred portion of total applicable income taxes
included in Schedule RI, items 9 and 11 (to be reported
with the December Report of Income) 4772 N/A M.12
</TABLE>
- ------------
(1) For example, a bank acquired on June 1, 1997, would report 1997/06/01
* Describe on Schedule RI-E - Explanations.
<PAGE> 25
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RI-4
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
6
SCHEDULE RI-A - CHANGES IN EQUITY CAPITAL
Indicate decreases and losses in parentheses. 1483 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD
1. Total equity capital originally reported in the December -----
31, 1997, Reports of Condition and Income 3215 328,092 1
2. Equity capital adjustments from amended Reports of income, net* 3216 0 2.
3. Amended balance end of previous calendar year (sum of
items 1 and 2) 3217 328,092 3.
4. Net income (loss) (must equal Schedule RI, item 12) 4340 43,368 4.
5. Sale, conversion, acquisition, or retirement of capital
stock, net 4346 0 5.
6. Changes incident to business combinations, net 4356 0 6.
7. LESS: Cash dividends declared on preferred stock 4470 0 7.
8. LESS: Cash dividends declared on common stock 4460 24,275 8.
9. Cumulative effect of changes in accounting principles from
prior years* (see instructions for this schedule) 4411 0 9.
10. Corrections of material accounting errors from prior years*
(see instructions for this schedule) 4412 0 10.
11. Change in net unrealized holding gains (losses) on available-
for-sale securities 8433 1,585 11.
12. Foreign currency translation adjustments 4414 0 12
13. Other transactions with parent holding company* (not included
in item 5, 7, or 8 above) 4415 0 13
14. Total equity capital end of current period (sum of items 3
through 13) must equal Schedule RC, item 28) 3210 348,770 14
</TABLE>
- ---------
* Describe on Schedule RI-E - Explanations.
SCHEDULE RI-B - CHARGE-OFFS AND RECOVERIES ON LOANS AND LEASES AND
CHANGES IN ALLOWANCE FOR CREDIT LOSSES
PART 1. Charge-offs and Recoveries on Loans and Leases(1)
Part 1 excludes charge-offs and recoveries through the
allocated transfer risk reserve. 1486 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
--Calendar year-to-date--
(Column A) (Column B)
1. Loans secured by real estate: RIAD Charge-offs RIAD Recoveries
---- ----
a. To U.S. addressees (domicile) 4651 72 4661 200 1.a
b. To non-U.S. addressees (domicile) 4652 0 4662 0 1.b
2. Loans to depository institutions and acceptances
of other banks:
a. To U.S. banks and other U.S. depository
institutions 4653 0 4663 0 2.a
b. To foreign banks 4654 0 4664 0 2.b
3. Loans to finance agricultural production and other
loans to farmers 4655 0 4665 0 3
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) 4645 41 4617 448 4.a
b. To non-U.S. addressees (domicile) 4646 0 4618 0 4.b
5. Loans to individuals for household, family, and
other personal expenditures:
a. Credit cards and related plans 4656 36 4666 14 5.a.
b. Other (includes single payment, installment,
and all student loans) 4657 3,661 4667 1,600 5.b.
6. Loans to foreign governments and official
institutions 4643 0 4627 0 6
7. All other loans 4644 300 4628 197 7
8. Lease financing receivables:
a. Of U.S. addressees (domicile) 4658 389 4668 134 8.a.
b. Of non-U.S. addressees (domicile) 4659 0 4669 0 8.b.
9. Total (sum of items 1 through 8) 4635 4,499 4605 2,593 9
</TABLE>
<PAGE> 26
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RI-4
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
7
SCHEDULE RI-B - CONTINUED
Part I. Continued
MEMORANDA
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. - 3. Not applicable. --CALENDAR YEAR-TO-DATE--
4. Loans to finance commercial real estate, construction, (Column A) (Column B)
and land development activities (not secured by real RIAD Charge-offs RIAD Recoveries
estate) included in Schedule RI-B, part I, items 4 ---- ----
and 7, above 5409 0 5410 0 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 0 3583 3 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 7 M.5.c.1
(2) All other loans secured by 1-4 family residential
properties 5413 11 5414 170 M.5.c.2
d. Secured by multifamily (5 or more) residential properties 3588 0 3589 0 M.5.d
e. Secured by nonfarm nonresidential properties 3590 61 3591 20 M.5.e
</TABLE>
PART II. CHANGES IN ALLOWANCE FOR CREDIT LOSSES
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD
1. Balance originally reported in the December 31, 1997, ----
Reports of Condition and Income 3124 59,211 1.
2. Recoveries (must equal or exceed part I, item 9,
column B above) 2419 2,593 2.
3. LESS: Charge-offs (must equal or exceed part I, item 9,
column A above) 2432 4,499 3.
4. Provision for credit losses (must equal Schedule RI, item 4.a) 4230 2,726 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 or exceed Schedule RC, item 4.b) A512 60,031 6
</TABLE>
- ------------
* Describe on Schedule RI-E - Explanations.
<PAGE> 27
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RI-4
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
8
SCHEDULE RI-D - INCOME FROM INTERNATIONAL OPERATIONS
FOR ALL BANKS WITH FOREIGN OFFICES, EDGE OR AGREEMENT SUBSIDIARIES, OR IBFS
WHERE INTERNATIONAL OPERATIONS ACCOUNT FOR MORE THAN 10 PERCENT OF TOTAL
REVENUES, TOTAL ASSETS, OR NET INCOME.
PART I. ESTIMATED INCOME FROM INTERNATIONAL OPERATIONS
I492 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income and expense booked at foreign offices,
Edge and Agreement subsidiaries, and IBFs: RIAD Year-to-Date
----
a. Interest Income booked 4837 0 1.a
b. Interest expense booked 4838 0 1.b
c. Net interest income booked at foreign offices, Edge
and Agreement subsidiaries, and IBFs (item 1.a minus 1.b) 4839 0 1.c
2. Adjustments for booking location of international operations:
a. Net interest income attributable to international operations
booked at domestic offices 4840 0 2.a
b. Net interest income attributable to domestic business
booked at foreign offices 4841 0 2.b
c. Net booking location adjustment (item 2.a minus 2.b) 4842 0 2.c
3. Noninterest income and expense attributable to international
operations:
a. Noninterest income attributable to international operations 4097 0 3.a
b. Provision for loan and lease losses attributable to
international operations 4235 0 3.b
c. Other noninterest expense attributable to international
operations 4239 0 3.c
d. Net noninterest income (expense) attributable to
international operations (item 3.a minus 3.b and 3.c) 4843 0 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 0 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 0 5
6. Estimated pretax income attributable to international
operations after capital allocation adjustment (sum of
items 4 and 5) 4846 0 6
7. Income taxes attributable to income from international
operations as estimated in item 6 4797 0 7
8. Estimated net income attributable to international
operations (item 6 minus 7) 4341 0 8
<CAPTION>
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
MEMORANDA RIAD
----
1. Intracompany interest income included in item 1.a above 4847 0 M.1
2. Intracompany interest expense included in item 1.b above 4848 0 M.2
</TABLE>
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
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD Year-to-Date
----
1. Interest income booked at IBFs 4849 0 1
2. Interest expense booked at IBFs 4850 0 2
3. Noninterest income attributable to international operations
booked at domestic offices (excluding IBFs):
a. Gains (losses) and extraordinary items 5491 0 3.a
b. Fees and other noninterest income 5492 0 3.b
4. Provision for loan and lease losses attributable to
international operations booked at domestic offices
(excluding IBFs) 4852 0 4
5. Other noninterest expense attributable to international
operations booked at domestic offices (excluding IBFs) 4853 0 5
</TABLE>
<PAGE> 28
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RI-4
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
9
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.)
<TABLE>
<CAPTION>
1495<-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. All other noninterest income (from Schedule RI, item 5.f.(2))
Report amounts that exceed 10% of Schedule RI, item 5.f. (2):
RIAD Year-to-Date
---- ------------
a. Net gains (losses) on other real estate owned 5415 2,996 1.a
b. Net gains (losses) on sales of loans 5416 1,893 1.b
c. Net gains (losses) 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):
TEXT
RIAD
----
d. 4461 4461 0 1.d
e. 4462 4462 0 1.e
f. 4463 4463 0 1.f
2. Other noninterest expense (from Schedule RI, item 7.c):
Year-to-Date
------------
a. Amortization expense of intangible assets 4531 0 2.a
Report amounts that exceed 10% of Schedule RI, item 7.c:
b. Net (gains) losses on other real estate owned 5418 0 2.b
c. Net (gains) losses on sales of loans 5419 0 2.c
d. Net (gains) 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 7c:
TEXT
RIAD
----
e. 4464 I/C DATA PROCESSING FEE 4464 18.052 2.e
f. 4467 4467 0 2.f
g. 4468 4468 0 2.g
3. Extraordinary items and other adjustments and applicable income tax effect
(from Schedule RI item 11.b) (itemize and describe all extraordinary items
and other adjustments):
TEXT
RIAD RIAD
---- ----
a. (1) 4469 4469 0 3.a.l
(2) Applicable income tax effect 4486 0 3.a.2
b. (1) 4487 4487 0 3.b.1
(2) Applicable income tax effect 4488 0 3.b.2
C. (1) 4489 4489 0 3.c.1
(2) Applicable income tax effect 4491 0 3.c.2
4. Equity capital adjustments from amended Reports of Income (from Schedule
RI-A, item 2) (itemize and describe all adjustments):
TEXT
RIAD
----
a.4492 4492 0 4.a
b.4493 4493 0 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):
TEXT
RIAD
----
a. 4494 4494 0 5.a
b. 4495 4495 0 5.b
6. Corrections of material accounting errors from prior years (from Schedule
RI-A, item 10) (itemize and describe all corrections):
TEXT
RIAD
----
a. 4496 4496 0 6.a
b. 4497 4497 0 6.b
</TABLE>
<PAGE> 29
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RI-4
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
SCHEDULE RI-E-CONTINUED 10
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
7. Other transactions with parent holding company (from Schedule RI-A, item 13)
(itemize and describe all such transactions):
TEXT
RIAD Year-to-Date
---- ------------
a. 4498 4498 0 7.a
b. 4499 4499 0 7.b
S. Adjustments to allowance for credit losses (from Schedule RI-B, part 11, item 5)
(itemize and describe all adjustments):
TEXT
RIAD
----
a. 4521 4521 0 8.a
b. 4522 4522 0 8.b
1498 1499 <-
9. Other explanations (the space below is provided for bank to briefly describe, at its option, any
other significant items affecting the Report of Inco RIAD
X = NO COMMENT - Y = COMMENT ________________________ 4769 X
Other explanations (please type or print clearly):
</TABLE>
TEXT 4769 (70 characters per line
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 30
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-1
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
11
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
C400 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions RCFD
(from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin (1) 0081 182,882 1.a
b. Interest-bearing balances (2) 0071 1,922 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 494,617 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 339,750 3
4. Loans and lease financing receivables: RCFD
----
a. Loans and leases, net of unearned income (from Schedule RC-C) 2122 3,366,991 4.a
b. LESS: Allowance for loan and lease losses 3123 60,031 4.b
c. LESS: Allocated transfer risk reserve 3128 0 RCFD 4.c
d. Loans and leases, net of unearned income, allowance, ----
and reserve (item 4.a minus 4.b and 4.c) 2125 3,306,960 4.d
5. Trading assets (from Schedule RC-D) 3545 0 5.
6. Premises and fixed assets (including capitalized leases) 2145 35,052 6.
7. Other real estate owned (from Schedule RC-M) 2150 4,156 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 5,241 8.
9. Customers' liability to this bank on acceptances outstanding 2155 281 9.
10. Intangible assets (from Schedule RC-M) 2143 0 10.
11. Other assets (from Schedule RC-F) 2160 36,635 11.
12. Total assets (sum of items 1 through 11) 2170 4,407,496 12
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 31
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: 0 Cert #: 04955 RC-2
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
12
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part I) RCON 2200 2,739,176 13.a
----
(1) Noninterest-bearing (1) 6631 609,964 13.a.1
(2) Interest-bearing 6636 2,129,212 13.a.2
RCFN
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ----
(from Schedule RC-E, part II) RCFN 2200 100,968 13.b
----
(1) Noninterest-bearing 6631 0 13.bl
(2) Interest-bearing 6636 100,968 RCFD 13.b2
14. Federal funds purchased and securities sold under agreements ----
to repurchase 2800 1,051,700 14
RCON
----
15. a. Demand notes issued to the U.S. Treasury 2840 0 15.a
RCFD
----
b. Trading liabilities (from Schedule RC-D) 3548 0 15.b
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
a. With a remaining maturity of one year or less 2332 63,300 16.a
b. With a remaining maturity of more than one year through
three years A547 28,236 16.b
c. With a remaining maturity of more than three years A548 50,000 16.c
17. Not applicable
18. Bank's liability on acceptances executed and outstanding 2920 281 18
19. Subordinated notes and debentures(2) 3200 0 19
20. Other liabilities (from Schedule RC-G) 2930 25,065 20
21. Total liabilities (sum of items 13 through 20) 2948 4,058,726 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838 0 23
24. Common stock 3230 25,000 24
25. Surplus (exclude all surplus related to preferred stock) 3839 73,296 25
26. a. Undivided profits and capital reserves 3632 246,712 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities 8434 3,762 26.b
27. Cumulative foreign currency translation adjustments 3284 0 27
28. Total equity capital (sum of items 23 through 27) 3210 348,770 28
29. Total liabilities and equity capital (sum of items 21 and 28) 3300 4,407,496 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 most comprehensive level of RCFD Number
auditing work performed for the bank by independent external ----
auditors as of any date during 1997 6724 N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 32
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-3
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
13
SCHEDULE RC-A - CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
Exclude assets held for trading.
<TABLE>
<CAPTION>
C405<-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
RCFD RCON
---- ----
<S> <C> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and currency and
coin 0022 153,740 1
a. Cash items in process of collection and unposted debits 0020 111,948 1.a
b. Currency and coin 0080 41,792 1.b
2. Balance due from depository institutions in the U.S. 0082 14,065 2
a. U.S. branches and agencies of foreign banks (including their IBFs) 0083 0 2.a
b. Other commercial banks in the U.S. and other depository institutions
in the U.S. (including their IBFs) 0085 14,065 2.b
3. Balances due from banks in foreign countries and foreign central banks 0070 0 3
a. Foreign branches of other U.S. banks 0073 0 3.a
b. Other banks in foreign countries and foreign central banks 0074 0 3.b
4. Balances due from Federal Reserve Banks 0090 16,999 0090 16,999 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 184,804 0010 184,804 5
</TABLE>
MEMORANDUM
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
RCON
----
<S> <C> <C>
1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item 2,
column B above) 0050 12,143 M.1
</TABLE>
Schedule RC-B - Securities
Exclude assets held for trading.
<TABLE>
<CAPTION>
C410 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
------Held-to-maturity----- ------Available-for-sale------
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cos Fair Value(l)
RCFD RCFD RCFD RCFD
---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1. U.S. Treasury securities 0211 0 0213 0 1286 64,772 1287 67,361 1
2. U.S. Government agency obligations (exclude
mortgage-backed securities):
a. Issued by U.S. Government agencies (2) 1289 0 1290 0 1291 0 1293 0 2.a
b. Issued by U.S. Government-sponsored
agencies (3) 1294 0 1295 0 1297 26,158 1298 26,617 2.b
</TABLE>
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.b, 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.
<PAGE> 33
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-4
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
14
SCHEDULE RC-B - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
------Held-to-maturity----- ------Available-for-sale------
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cos Fair Value(l)
RCFD RCFD RCFD RCFD
---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3. Securities issued by states and political
subdivisions in the U.S.
a. General obligations 1676 0 1677 0 1678 43,519 1679 44,375 3.a
b. Revenue obligations 1681 0 1686 0 1690 5,934 1691 6,016 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 30,305 1702 30,815 4.a.1
(2) Issued by FNMA and FHLMC 1703 0 1705 0 1706 27,416 1707 28,189 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):
RCFD RCFD RCFD RCFD
---- ---- ---- ----
(1) Issued or guaranteed by FNMA,
FHLMC, or GNMA 1714 0 1715 0 1716 274,028 1717 274,855 4.b.1
(2) Collateralized by MBS issued or guaranteed
by FNMA, FHLMC, or GNMA 1718 0 1719 0 1731 0 1732 0 4.b.2
(3) All other mortgage-backed securities 1733 0 1734 0 1735 0 1736 4.b.3
5. Other debt securities:
a. Other domestic debt securities 1737 0 1738 0 1739 250 1741 250 5.a
b. Foreign debt securities 1742 0 1743 0 1744 150 1746 150 5.b
RCFD RCFD
---- ----
6. Equity securities:
a. Investments in mutual funds and
other equity securities with
readily determinable fair values A510 0 A511 0 6.a
b. All other equity securities(l) 1752 15,989 1753 15,989 6.b
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)
RCFD RCFD RCFD RCFD
---- ---- ---- ----
1754 0 1771 0 1772 488,521 1773 494,617 7
</TABLE>
- ----------
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.b, column D.
<PAGE> 34
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-5
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
15
SCHEDULE RC-B - CONTINUED
C412 <-
<TABLE>
<CAPTION>
MEMORANDA Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCFD
----
1. Pledged securities(2) 0416 226,872 M.1
2. Maturity and repricing data for debt securities
(1,2)(excluding those in nonaccrual status):
a. Securities issued by the U.S. Treasury, U.S. Government
agencies, and states and political subdivisions in the U.S.;
other non-mortgage debt securities; and mortgage pass-through
securities other than those backed by closed-end first lien
1-4 family residential mortgages with a remaining maturity
or repricing frequency of: (3,4) RCFD
----
(1) Three months or less A549 5,245 M.2.al
(2) Over three months through 12 months A550 33,964 M.2.a2
(3) Over one year through three years A551 59,316 M.2.a3
(4) Over three years through five years A552 35,619 M.2.a4
(5) Over five years through 15 years A553 9,015 M.2.a5
(6) Over 15 years A554 1,610 M.2.a6
b. Mortgage pass-through securities backed by closed-end
first lien 1-4 family residential mortgages with a remaining
maturity or repricing frequency of: (3,5)
(1) Three months or less A555 21,363 M.2.bl
(2) Over three months through 12 months A556 30,567 M.2.b2
(3) Over one year through three years A557 4,285 M.2.b3
(4) Over three years through five years A558 374 M.2.b4
(5) Over five years through 15 years A559 995 M.2.b5
(6) Over 15 years A560 1,420 M.2.b6
c. Other mortgage-backed securities (include CMOs, REMICs,
and stripped MBS; exclude mortgage pass-through
securities) with an expected average life of: (6)
(1) Three years or less A561 230,304 M.2.cl
(2) Over three years A562 44,551 M.2.c2
d. Fixed rate AND floating rate debt securities with a
REMAINING MATURITY of one year or less (included in
Memorandum items 2.a through 2.c above) A248 38,312 M.2.d
3. - 6. Not applicable
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
</TABLE>
- ---------
(1) Include held-to-maturity securities at amortized cost and
available-for-sale securities at fair value.
(2) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
(3) Report fixed rate debt securities by remaining maturity and floating rate
debt securities by repricing frequency.
(4) Sum of Memorandum items 2.a.(1) through 2.a.(6) plus any nonaccrual debt
securities in the categories of debt securities reported in Memorandum
item 2.a that are included in Schedule RC-N, item 9, column C, must equal
Schedule RC-B, sum of items 1, 2, 3 and 5, columns A and D, plus mortgage
pass-through securities other than those backed by closed-end first lien
1-4 family residential mortgages included in Schedule RC-B, item 4.a,
columns A and D.
(5) Sum of Memorandum items 2.b.(1) through 2.b.(6) plus any nonaccrual
mortgage pass-through securities backed by closed-end first lien 1-4
family residential mortgages included in Schedule RC-N, item 9, column C,
must equal Schedule RC-B, item 4.a, sum of columns A and D, less the
amount of mortgage pass-through securities other than those backed by
closed-end first lien 1-4 family residential mortgages included in
Schedule RC-B, item 4.a, columns A and D.
(6) Sum of Memorandum items 2.c.(1) and 2.c.(2) plus any nonaccrual "Other
mortgage-backed securities" included in Schedule RC-N, item 9, column C,
must equal Schedule RC-B, item 4.b, sum of columns A and D.
<PAGE> 35
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-6
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
16
SCHEDULE RC-C - LOANS AND LEASE FINANCING RECEIVABLES
PART I. LOANS AND LEASES
Do not deduct the allowance for loan and lease losses from amounts reported in
this schedule. Report total loans and leases, net of unearned income. Exclude
assets held for trading and commercial paper.
C415 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
--(Column A)-- --(Column B)--
Consolidated Domestic
RCFD Bank Offices
----
1. Loans secured by real estate 1410 1,065,041 RCON 1
----
a. Construction and land development 1415 44,372 1.a
b. Secured by farmland (including farm residential
and other improvements) 1420 2,072 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 77,698 1.c.1
(2) All other loans secured by 1-4 family residential
properties
(a) Secured by first liens 5367 626,814 1.c.2a
(b) Secured by junior liens 5368 16,808 1.c.2b
d. Secured by multifamily (5 or more) residential properties 1460 5,422 1.d
e. Secured by nonfarm nonresidential properties 1480 291,855 1.e
2. Loans to depository institutions:
a. To commercial banks in the U.S. 1505 122,561 2.a
(1) To U.S. branches and agencies of foreign banks 1506 0 2.al
(2) To other commercial banks in the U.S. 1507 122,561 2.a2
b. To other depository institutions in the U.S. 1517 0 1517 0 2.b
c. To banks in foreign countries 1510 0 2.c
(1) To foreign branches of other U.S. banks 1513 0 2.cl
(2) To other banks in foreign countries 1516 0 2.c2
3. Loans to finance agricultural production and other
loans to farmers 1590 10,703 1590 10,703 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) 1763 1,384,432 1763 1,384,432 4.a
b. To non-U.S. addressees (domicile) 1764 0 1764 0 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 408,629 6
a. Credit cards and related plans (includes check
credit and other revolving credit plans) 2008 332 6.a
b. Other (includes single payment, installment,
and all student loans) 2011 408,297 6.b
7. Loans to foreign government and official institutions
(including foreign central banks) 2081 0 2081 0 7
8. Obligations (other than securities and leases) of states
and political subdivisions in the U.S. 2107 40,610 2107 40,610 8
9. Other loans 1563 193,630 9
a. Loans for purchasing or carrying securities
(secured and unsecured) 1545 63,936 9.a
b. All other loans (exclude consumer loans) 1564 129,694 9.b
10. Lease financing receivables (net of unearned income) 2165 141,385 10
a. Of U.S. addressees (domicile) 2182 141,385 10.a
b. Of non-U.S. addressees (domicile) 2183 0 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 3,366,991 2122 3,366,991 12
</TABLE>
<PAGE> 36
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-7
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
17
SCHEDULE RC-C - CONTINUED
PART I. CONTINUED
<TABLE>
<CAPTION>
MEMORANDA Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
RCFD
----
<S> <C> <C> <C>
1. Not applicable
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 lease financing receivables (exclude loans to
individuals for household, family, and other personal expenditures) 8691 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 M.2.c
3. Maturity and repricing data for loans and leases (excluding those in nonaccrual status):
a. Closed-end loans secured by first liens on 1-4 family residential properties in domestic
offices (reported in Schedule RC-C, part I, item 1.c.(2)(a), column B)
with a remaining maturity or repricing frequency of: (1, 2)
RCON
----
(1) Three months or less A564 31.367 M.3.al
(2) Over three months through 12 months A565 99.937 M.3.a2
(3) Over one year through three years A566 223,707 M.3.a3
(4) Over three years through five years A567 194.421 M.3.a4
(5) Over five years through 15 years A568 46.893 M.3.a5
(6) Over 15 years A569 23,214 M.3.a6
b. All loans and leases (reported in Schedule RC-C, part I, items 1 through
10, column A) EXCLUDING closed-end loans secured by first liens on 1-4
family residential properties in domestic offices (reported in Schedule
RC-C, part I item 1.c.(2)(a), column B) with a remaining maturity or
repricing frequency of: (1,3)
RCFD
----
(1) Three months or less A570 1,897,023 M.3.bl
(2) Over three months through 12 months A571 146,037 M.3.b2
(3) Over one year through three years A572 233,906 M.3.b3
(4) Over three years through five years A573 302,495 M.3.b4
(5) Over five years through 15 years A574 157,557 M.3.b5
(6) Over 15 years A575 354 M.3.b6
c. Fixed rate AND floating rate loans and leases (reported in Schedule RC-C, part I, items 1
through 10, column A) with a REMAINING MATURITY of one year or less A247 1,292,976 M.3.c
RCON
----
d. Fixed rate AND floating rate loans secured by nonfarm nonresidential properties in
domestic offices (reported in Schedule RC-C, part I, item 1.e, column B) with a
REMAINING MATURITY of over five years 5771 91,671 M.3.d
RCFD
----
e. Fixed rate AND floating rate commercial and industrial loans (reported in Schedule RC-C
part I, Item 4, column A) with a REMAINING MATURITY of over three years A578 319,306 M.3.e
</TABLE>
- ----------
(1) Report fixed rate loans and leases by remaining maturity and floating rate
loans by repricing frequency.
(2) Sum of Memorandum items 3.a.(1) through 3.a.(6) plus total nonaccrual
closed-end loans secured by first liens on 1-4 family residential
properties included in Schedule RC-N, Memorandum item 3.c.(2), column C,
must equal total closed-end loans secured by first liens on 1-4 family
residential properties from Schedule RC-C, part I, item 1.c.(2)(a),
column B.
(3) Sum of Memorandum items 3.b.(1) through 3.b.(6) plus total nonaccrual loans
and leases from Schedule RC-N, sum of items 1 through 8, column C, minus
nonaccrual closed-end loans secured by first liens on 1-4 family
residential properties in domestic offices included in Schedule RC-N,
Memorandum item 3.c.(2), column C, must equal total loans and leases from
Schedule RC-C, Part I, sum or items 1 through 10, column A, minus total
closed-end loans secured by first liens on 1-4 family residential
properties in domestic offices from Schedule RC-C, part I, item 1.c.(2)(a),
column B.
<PAGE> 37
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-8
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
18
SCHEDULE RC-C - CONTINUED
PART I. CONTINUED
<TABLE>
<CAPTION>
MEMORANDA Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
RCFD
----
<S> <C> <C> <C>
4. Loans to finance commercial real estate, construction, and land
development activities (not secured by real estate) included in
Schedule RC-C, part I, items 4 and 9, column A, page RC-6 (1) 2746 41,739 M.4
5. Loans and leases held for sale (included in Schedule RC-C, part I, page RC-6) 5369 13,582 M.5
RCON
----
6. Adjustable rate closed-end loans secured by first liens on 1-4 family
residential properties in domestic offices (included in Schedule RC-C,
part I, item 1.c.(2)(a), column B, page RC-6) 5370 499,078 M.6
</TABLE>
- ----------
(1) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, item l, column A.
SCHEDULE RC-D - TRADING ASSETS AND LIABILITIES
Schedule RC-D is to be completed 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).
<TABLE>
<CAPTION>
C420 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
RCON
----
<S> <C> <C> <C>
ASSETS
1. U.S. Treasury securities in domestic offices 3531 0 1
2. U.S. Government agency obligations in domestic offices (exclude mortgage-
backed securities) 3532 0 2
3. Securities issued by states and political subdivisions in the U.S. in domestic offices 3533 0 3
4. Mortgage-backed securities (MBS) in domestic offices:
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA 3534 0 4.a
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA
(include CMOs, REMICs, and stripped MBS) 3535 0 4.b
c. All other mortgage-backed securities 3536 0 4.c
5. Other debt securities in domestic offices 3537 0 5
6. -8. NOT APPLICABLE
9. Other trading assets in domestic offices 3541 0 9
RCFN
----
10. Trading assets in foreign offices 3542 0 10
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and equity
contracts:
RCON
----
a. In domestic offices 3543 0 11.a
RCFN
----
b. In foreign offices 3543 0 11.b
RCFD
----
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5) 3545 0 12
RCFD
----
LIABILITIES
13. Liability for short positions 3546 0 13
RCFD
----
14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and equity
contracts 3547 0 14
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item 15.b) 3548 0 15
</TABLE>
<PAGE> 38
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-9
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
19
SCHEDULE RC-E - DEPOSIT LIABILITIES
Part I. Deposits in Domestic Offices
<TABLE>
<CAPTION>
C425 <-
-Transaction Accounts- -Nontransaction-
Accounts
(Column A) (Column B) (Column C)
Total Memo: Total Total
Transaction Demand nontransaction
Dollar Amounts in Thousands accounts Deposits Accounts
--------------------------- (including total (included in (including
demand deposits) column A) MMDAs)
RCON RCON RCON
---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
DEPOSITS OF:
1. Individuals, partnerships and corporations 2201 537,706 2240 469,540 2346 2,068,777 1
2. U.S. Government 2202 1,283 2280 1,283 2520 0 2
3. States and political subdivisions in the U.S. 2203 70,253 2290 9,699 2530 23,378 3
4. Commercial banks in the U.S. 2206 28,700 2310 28,700 2550 0 4
5. Other depository institutions in the U.S. 2207 0 2312 0 2349 0 5
6. Banks in foreign countries 2213 0 2320 0 2236 0 6
7. Foreign governments, and official institutions
(including foreign central banks) 2216 0 2300 0 2377 0 7
8. Certified and official checks 2330 9,079 2330 9,079 8
9. Total (sum of items 1 through 8) (sum of
columns A and C must equal Schedule RC,
item 13.a) 2215 647,021 2210 518,301 2385 2,092,155 9
Memoranda Dollar Amounts in Thousands
- --------- ---------------------------
RCON
----
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 118,764 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.c1
(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.c2
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.d1
(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.d2
e. Preferred deposits (uninsured deposits of states and political subdivisions in the U.S.
reported in item 3 above which are secured or collaterlized as required under state law)
(TO BE COMPLETED FOR THE DECEMBER REPORT ONLY) 5590 N/A M.1.e
2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.c
must equal item 9, column C, above)
RCON
----
a. Savings deposits:
(1) Money market deposit accounts (MMDAs) 6810 1,200,435 M.2.al
(2) Other savings deposits (excludes MMDAs) 0352 163,122 M.2.a2
b. Total time deposits of less than $100,000 6648 471,346 M.2.b
c. Total time deposits of $100,000 or more 2604 257,252 M.2.c
3. All NOW accounts (included in column A above) 2398 128,720 M.3
4. Not applicable
</TABLE>
<PAGE> 39
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-10
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
20
SCHEDULE RC-E - CONTINUED
Part I. Continued
<TABLE>
<CAPTION>
Memoranda (continued) Dollar Amounts in Thousands
- --------------------- ---------------------------
RCON
----
<S> <C> <C> <C>
5. Maturity and repricing data for time deposits of less than $100,000:
a. Time deposits of less than $100,000 with a remaining maturity or repricing
frequency of: (1, 2)
RCON
----
(1) Three months or less A579 184,884 M.5.al
(2) Over three months through 12 months A580 162,171 M.5.a2
(3) Over one year through three years A581 111,564 M.5.a3
(4) Over three years A582 12,727 M.5.a4
b. Fixed rate AND floating rate time deposits of less than $100,000 with a
REMAINING MATURITY of one year or less (included in Memorandum items 5.a.(1)
through 5.a.(4) above) A241 329,261 M.5.b
6. Maturity and repricing data for time deposits of $100,000 or more:
a. Time deposits of $100,000 or more with a remaining maturity or repricing
frequency of: (1, 3)
(1) Three months or less A584 94,811 M.6.al
(2) Over three months through 12 months A585 106,519 M.6.a2
(3) Over one year through three years A586 51,648 M.6.a3
(4) Over three years A587 4,274 M.6.a4
b. Fixed rate AND floating rate time deposits of $100,000 or more with a
REMAINING MATURITY of one year or less (included in Memorandum items
6.a.(1) through 6.a.(4) above) A242 197,151 M.6.b
</TABLE>
- ----------
(1) Report fixed rate time deposits by remaining maturity and floating rate
time deposits by repricing frequency
(2) Sum of Memorandum items 5.a.(1) through 5.a.(4) must equal Schedule RC-E
Memorandum item 2.b above.
(3) Sum of Memorandum items 6.a.(l) through 6.a.(4) must equal Schedule RC-E
Memorandum item 2.c above.
<PAGE> 40
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-11
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
21
SCHEDULE RC-E - CONTINUED
PART II. Deposits in Foreign Offices (including Edge and
Agreement Subsidiaries and IBFs)
<TABLE>
<CAPTION>
DEPOSITS OF: Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCFN
----
1. Individuals, partnerships, and corporations 2621 100,968 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 100,968 7
<CAPTION>
MEMORANDUM Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCFN
1. Time deposits with a remaining maturity of one ----
year or less (included in Part II, item 7 above) A245 100,968 M.1
</TABLE>
SCHEDULE RC-F - OTHER ASSETS
<TABLE>
<CAPTION>
C430 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
RCFD
----
1. Income earned, not collected on loans 2164 21,397 1.
2. Net deferred tax assets (1) 2148 0 2.
3. Interest-only strips receivable (not in the
form of a security)(2) on:
a. Mortgage loans A519 0 3.a
b. Other financial assets A520 0 3.b
4. Other (itemize and describe amounts that exceed 25%
of this item) 2168 15,238 4.
TEXT RCFD
----
a. 3549 TRUST-ACCRUED INCOME 3549 4,662 4.a
b. 3550 SECURITIES-ACCRUED INCOME 3550 4,446 4.b
c. 3551 3551 0 RCFD 4.c
----
5. Total (sum of items 1 through 4) (must equal Schedule
RC, item 11) 2160 36,635 5.
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
MEMORANDUM RCFD
----
1. Deferred tax assets disallowed for regulatory
capital purposes 5610 0 M.1
</TABLE>
SCHEDULE RC-G - OTHER LIABILITIES
<TABLE>
<CAPTION>
C435 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
RCON
----
1. a. Interest accrued and unpaid on deposits
in domestic offices(3) 3645 8,016 1.a
RCFD
----
b. Other expenses accrued and unpaid (includes accrued
income taxes payable) 3646 10,999 1.b
2. Net deferred tax liabilities (1) 3049 1,371 2.
3. Minority interest in consolidated subsidiaries 3000 0 3.
4. Other (itemize and describe amounts that exceed 25%
of this item) 2938 4,679 4.
TEXT RCFD
----
a. 3552 I/C ACCTS PAYABLE-NB NI ST 3552 1,260 4.a
b. 3553 3553 0 4.b
C. 3554 3554 0 RCFD 4.c
----
5. Total (sum of items 1 through 4) (must equal Schedule
RC, item 20) 2930 25,065 5.
</TABLE>
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) Report interest-only strips receivable in the form of a security as
available-for sale securities in Schedule RC, item 2.b, or as trading assets
in Schedule RC, item 5, as appropriate.
(3) For savings banks, includes "dividends" accrued and unpaid on deposits.
<PAGE> 41
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-12
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
22
SCHEDULE RC-H - SELECTED BALANCE SHEET ITEMS FOR DOMESTIC OFFICES
C440 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------
Domestic Offices
<S> <C> <C> <C>
RCON
----
1. Customers' liability to this bank on acceptances outstanding 2155 281 1
2. Bank's liability on acceptances executed and outstanding 2920 281 2
3. Federal funds sold and securities purchased under agreements
to resell 1350 339,750 3
4. Federal funds purchased and securities sold under agreements
to repurchase 2800 1,051,700 4
5. Other borrowed money 3190 141,536 5
EITHER
6. Net due from own foreign offices, Edge and Agreement
subsidiaries, and IBFs 2163 0 6
OR
7. Net due to own foreign offices, Edge and Agreement
subsidiaries, and IBFs 2941 101,010 7
8. Total assets (excludes net due from foreign offices, Edge
and Agreement subsidiaries, and IBFs) 2192 4,407,496 8
9. Total liabilities (excludes net due to foreign offices, Edge
and Agreement subsidiaries, and IBFs 3129 3,957,716 9
IN ITEMS 10-17 REPORT THE AMORTIZED (HISTORICAL) COST OF
BOTH HELD-TO-MATURITY AND AVAILABLE-FOR-SALE SECURITIES IN
DOMESTIC OFFICES.
10. U.S. Treasury securities 1039 64,772 10
11. U.S. Government agency obligations (exclude mortgage-backed
securities) 1041 26,158 11
12. Securities issued by states and political subdivisions in the U.S. 1042 49,453 12
13. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA 1043 57,721 13.a.1
(2) Other pass-through securities 1044 0 13.a.2
b. Other mortgage-backed securities (include CMOs, REMICs,
and stripped MBS):
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA 1209 274,028 13.b.1
(2) All other mortgage-backed securities 1280 0 13.b.2
14. Other domestic debt securities 1281 250 14
15. Foreign debt securities 1282 150 15
16. Equity securities:
a. Investments in mutual funds and other equity securities
with readily determinable fair values A510 0 16.a
b. All other equity securities 1752 15,989 16.b
17. Total amortized (historical) cost of both held-to-maturity
and available-for-sale securities (sum of items 10 through 16) 1374 488,521 17
MEMORANDUM
(to be completed only by banks with IBFs and other "foreign" offices)
<CAPTION>
Dollar Amounts in Thousands
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
EITHER RCON
----
1. Net due from the IBF of the domestic offices of the reporting bank 3051 0 M.1
OR
2. Net due to the IBF of the domestic offices of the reporting bank 3059 0 M.2
</TABLE>
<PAGE> 42
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-13
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
23
SCHEDULE RC-I - SELECTED ASSETS AND LIABILITIES OF IBFS
To be completed only by banks with IBFs and other "foreign" offices.
<TABLE>
<CAPTION>
C445<-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
RCFN
----
<S> <C> <C> <C>
1. Total IBF assets of the consolidated bank (component of Schedule RC, item 12) 2133 0 1
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, part I,
item 12, column A) 2076 0 2
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, item 4,
column A) 2077 0 3
4. Total IBF liabilities (component of Schedule RC, item 21) 2898 0 4
5. IBF deposit liabilities due to banks, including other IBFs (component of Schedule RC-E,
part II, items 2 and 3) 2379 0 5
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5, and 6) 2381 0 6
</TABLE>
SCHEDULE RC-K - QUARTERLY AVERAGES (1)
<TABLE>
<CAPTION>
C455<-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
RCFD
----
<S> <C> <C> <C>
ASSETS
1. Interest-bearing balances due from depository institutions 3381 2,117 1.
2. U.S. Treasury securities and U.S. Government agency obligations (2) 3382 361,543 2
3. Securities issued by states and political subdivisions in the U.S.(2) 3383 49,250 3.
4. a. Other debt securities (2) 3647 400 4.a
b. Equity securities (3) (includes investments in mutual funds and Federal Reserve stock) 3648 21,938 4.b
5. Federal funds sold and securities purchased under agreements to resell 3365 332,102 5
6. Loans:
RCON
----
a. Loans in domestic offices.
(1) Total loans 3360 3,153,882 6.a.1
(2) Loans secured by real estate 3385 1,066,696 6.a.2
(3) Loans to finance agricultural production and other loans to farmers 3386 10,672 6.a.3
(4) Commercial and industrial loans 3387 1,511,121 6.a.4
(5) Loans to individuals for household, family, and other personal expenditures 3388 403,634 6.a.5
RCFN
----
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs 3360 0 6.b
RCFD
----
7. Trading assets 3401 0 7.
8. Lease financing receivables (net of unearned income) 3484 132,103 8.
9. Total assets(4) 3368 4,262,769 9
RCON
----
LIABILITIES
10. Interest-bearing transaction accounts in domestic (NOW accounts, ATS accounts,
and telephone and preauthorized transfer accounts) (exclude demand deposits) 3485 93,637 10
11. Nontransaction accounts in domestic offices:
a. Money market deposit accounts (MMDAs) 3486 1,212,433 11.a
b. Other savings deposits 3487 165,197 11.b
C. Time deposits of $100,000 or more A514 263,498 11.c
d. Time deposits of less than $100,000 A529 480,900 11.d
RCFN
----
12. Interest-bearing deposits in foreign offices, Edge and Agreement subsidiaries, and IBFs 3404 222,807 12
RCFD
----
13. Federal funds purchased and securities sold under agreements to repurchase 3353 838,650 13
RCFD
----
14. Other borrowed money
(includes mortgage indebtedness and obligations under capitalized leases) 3355 137,871 14
</TABLE>
- ----------
(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 averages 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.
<PAGE> 43
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-14
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
24
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.
<TABLE>
<CAPTION>
C460<-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
RCFN
----
<S> <C> <C> <C>
RCFD
----
1. Unused commitments:
a. Revolving, open-end lines secured by 1-4 family residential properties,
e.g., home equity lines 3814 127,574 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 64,855 1.c.1
(2) Commitments to fund loans not secured by real estate 6550 29,751 1.c.2
d. Securities underwriting 3817 0 1.d
e. Other unused commitments 3818 2,521,394 1.e
RCFD
----
2. Financial standby letters of credit and foreign office guarantees 3819 429,131 2.
a. Amount of financial standby letters of credit conveyed to others 3820 118,878 2.a
3. Performance standby letters of credit and foreign office guarantees 3821 12,273 3.
a. Amount of performance standby letters of credit conveyed to others 3822 0 3.a
4. Commercial and similar letters of credit 3411 4,515 4.
5. Participations in acceptances (as described in the instructions) conveyed to
others by the reporting bank 3428 0 5
6. Participations in acceptances (as described in the instructions) acquired by the reporting
(nonaccepting) bank 3429 0 6.
7. Securities borrowed 3432 0 7.
8. Securities lent (including customers' securities lent where the customer is indemnified against
loss by the reporting bank) 3433 0 8
9. Financial assets transferred with recourse that have been treated as
sold for Call Report purposes:
RCFD
----
a. First lien 1-to-4 family residential mortgage loans:
(1) Outstanding principal balance of mortgages transferred
as of the report date A521 0 9.a.1
(2) Amount of recourse exposure on these mortgages
as of the report date A522 0 9.a.2
b. Other financial assets (excluding small business obligations
reported in item 9.c):
(1) Outstanding principal balance of assets transferred
as of the report date A523 0 9.b.1
(2) Amount of recourse exposure on these assets
as of the report date A524 0 9.b.2
c. 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.c.1
(2) Amount of retained recourse on these obligations as of the report date A250 0 9.c.2
10. Notional amount of credit derivatives:
a. Credit derivatives on which the reporting bank is the guarantor A534 0 10.a
b. Credit derivatives on which the reporting bank is the beneficiary A535 0 10.b
11. Spot foreign exchange contracts 8765 0 11
12. All other off-balance sheet liabilities (exclude off-balance sheet
derivatives) (itemize and describe each component of this item over 25% of
Schedule RC, item 28, "Total equity capital") 3430 0 12
TEXT
RCFD
----
a. 3555 3555 0 12.a
b. 3556 3556 0 12.b
C. 3557 3557 0 12.c
d. 3558 3558 0 12.d
</TABLE>
<PAGE> 44
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State # 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert # 04955 RC-15
ATLANTA, GA 30302 Transit # 06400004
</TABLE>
25
SCHEDULE RC-L - CONTINUED
<TABLE>
<CAPTION>
RCFD
----
<S> <C> <C> <C> <C> <C>
13. All other off-balance sheet assets (exclude off-balance sheet derivatives)
(itemize and describe each component of this item over 25% Schedule RC
item 28, "Total equity capital") 5591 0 13
TEXT RCFD
----
a. 5592 5592 0 13.a
b. 5593 5593 0 13.b
C. 5594 5594 0 13.c
d. 5595 5595 0 13.d
</TABLE>
<TABLE>
<CAPTION>
OFF-BALANCE SHEET Derivatives C461 <-
Position Indicators Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Interest Foreign Equity Commodity
Rate Exchange Derivative and other
Contracts Contracts Contracts Contracts
<S> <C> <C> <C> <C> <C>
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:
RCFD RCFD RCFD RCFD
---- ---- ---- ----
a. Futures contracts 8693 0 8694 0 8695 0 8696 0 14.a
b. Forward contracts 8697 0 8698 0 8699 0 8700 0 14.b
c. Exchange-traded option contracts:
(1) Written options 8701 0 8702 0 8703 0 8704 0 14.c1
(2) Purchased Options 8705 0 8706 0 8707 0 8708 0 14.c2
d. Over-the-counter options contracts:
(1) Written options 8709 0 8710 0 8711 0 8712 0 14.d1
(2) Purchased options 8713 0 8714 0 8715 0 8716 0 14.d2
e. Swaps 3450 33,000 3826 0 8719 0 8720 0 14.e
15. Total gross notional amount of
derivative contracts held for trading A126 0 A127 0 8723 0 8724 0 15
RCFD RCFD RCFD RCFD
---- ---- ---- ----
16. Total gross notional amount of
derivative contracts held for
purposes other than trading:
a. Contracts marked to market 8725 0 8726 0 8727 0 8728 0 16.a
b. Contracts not marked to market 8729 33,000 8730 0 8731 0 8732 0 16.b
c. Interest rate swaps where the bank RCON
has agreed to pay a fixed rate A589 0 16.c
</TABLE>
<PAGE> 45
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State # 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert # 04955 RC-16
ATLANTA, GA 30302 Transit # 06400004
</TABLE>
26
SCHEDULE RC-L - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
OFF-BALANCE SHEET Derivatives (Column A) (Column B) (Column C) (Column D)
POSITION INDICATORS Interest Foreign Equity Commodity
Rate Exchange Derivative and other
Contracts Contracts Contracts Contracts
RCFD RCFD RCFD RCFD
---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
17. Gross fair value of derivative contracts:
a. Contracts held for trading:
(1) Gross positive fair value 8733 0 8734 0 8735 0 8736 0 17.al
(2) Gross negative fair value 8737 0 8738 0 8739 0 8740 0 17.a2
b. Contracts held for purposes other than
trading that are marked to market:
(1) Gross positive fair value 8741 0 8742 0 8743 0 8744 0 17.bl
(2) Gross negative fair value 8745 0 8746 0 8747 0 8748 0 17.b2
c. Contracts held for purposes other than
trading that are not marked to market:
(1) Gross positive fair value 8749 736 8750 0 8751 0 8752 0 17.cl
(2) Gross negative fair value 8753 0 8754 0 8755 0 8756 0 17.c2
</TABLE>
<TABLE>
<CAPTION>
Memoranda Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
RCFD
----
<S> <C> <C> <C> <C> <C>
1.-2. Not applicable
3. Unused commitments with an original maturity exceeding one year that are reported in
Schedule RC-L. items 1.a through 1.e. above (report only the unused portions of
commitments that are fee paid or otherwise legally binding) 3833 832,443 M.3
RCFD
----
a. Participations in commitments with an original maturity
exceeding one year conveyed to others 3834 394,683 M.3.a
RCFD
----
4. To be completed only by banks with S 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 0 M.4
5. Loans to individuals for household, family, and other personal expenditures
that have been securitized and sold (with servicing retained), amounts
outstanding by type of loan:
a. Loans to purchase private passenger automobiles RCFD
(to be completed for the September report only) 2741 0 M.5.a
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY) 2742 0 M.5.b
c. All other consumer credit (including mobile home loans)
(to be completed for the September report only) 2743 0 M.5.c
</TABLE>
<PAGE> 46
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-17
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
27
SCHEDULE RC-M-MEMORANDA
<TABLE>
<CAPTION>
C465 <-
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
RCFD
----
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 157,443 1.a
RCFD Number
---- ------
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 of total capital as defined for this purpose in agency regulations 6165 12 1.b
RCFD
----
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, item 3) 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 281 5.a
b. Non-U.S. addressees (domicile) 2104 0 5.b
6. Intangible assets:
a. Mortgage Servicing Assets 3164 0 6.a
(1) Estimated fair value of mortgage servicing assets A590 0 6.a.1
b. Other identifiable intangible assets:
(1) Purchased credit card relationships 5506 0 6.b.1
(2) All other identifiable intangible assets 5507 0 6.b.2
c. Goodwill 3163 0 6.c
d. Total (sum of items 6.a. 6.b.(1), 6.b.(2). and 6.c) (must equal Schedule RC, item 10) 2143 0 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.
<PAGE> 47
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-18
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
28
SCHEDULE RC-M - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCFD
----
8. a. Other real estate owned:
(1) Direct and indirect investments in real estate ventures 5372 0 8.a.1
RCON
----
(2) All other real estate owned:
(a) Construction and land development in domestic offices 5508 3,950 8.a.2a
(b) Farmland in domestic offices 5509 0 8.a.2b
(c) 1-4 family residential properties in domestic offices 5510 0 8.a.2c
(d) Multifamily (5 or more) residential properties in domestic offices 5511 0 8.a.2d
(e) Nonfarm nonresidential properties in domestic offices 5512 206 8.a.2e
RCFN
----
(f) In foreign offices 5513 0 8.a.2f
RCFD
----
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7) 2150 4,156 8.a.3
b. Investments in unconsolidated subsidiaries and associated companies:
(1) Direct and indirect investments in real estate ventures 5374 0 8.b.1
(2) All other investments in unconsolidated subsidiaries and associated companies 5375 5,241 8.b.2
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8) 2130 5,241 8.b.3
9. Noncumulative perpetual preferred stock and related surplus included in
Schedule RC, item 23, "Perpetual preferred stock and related surplus" 3778 0 9
10. Mutual fund and annuity sales in domestic offices during the quarter (include proprietary,
private label, and third party products):
RCON
----
a. Money market funds 6441 102,769 10.a
b Equity securities funds 8427 9,657 10.b
c. Debt securities funds 8428 3,481 10.c
d. Other mutual funds 8429 2,609 10.d
e. Annuities 8430 3,919 10.e
f. Sales of proprietary mutual funds and annuities (included in items 10.a through
10.e above) 8784 104,956 10.f
RCFD
----
11. Net unamortized realized deferred gains (losses) on off-balance sheet derivative
contracts included in assets and liabilities reported in Schedule RC A525 0 11
RCFD
----
12. Amount of assets netted against nondeposit liabilities and deposits in
foreign offices (other than insured branches in Puerto Rico
and U.S. territories and possessions) on the balance sheet (Schedule RC)
in accordance with generally accepted accounting principles(l) A526 0 12
13. Outstanding principal balance of loans other than 1-4 family residential
mortgage loans that are serviced for others (to be completed if this balance
is more than $10 million and exceeds ten percent
of total assets) A591 0 13
Memorandum Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------------
RCFD
----
1. Reciprocal holdings of banking organizations' capital instruments
(to be completed for the December report only) 3836 N/A M.1
</TABLE>
- ----------
(1) Exclude netted on-balance sheet amounts associated with off-balance sheet
derivative contracts, deferred tax assets netted against deferred tax
liabilities, and assets netted in accounting for pensions.
<PAGE> 48
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-19
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
29
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.
<TABLE>
<CAPTION>
C470 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------
-(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
<S> <C> <C> <C> <C> <C> <C>
RCFD RCFD RCFD
---- ---- ----
1. Loans secured by real estate:
a. To U.S. addressees (domicile) 1245 1246 669 1247 3,407 1.a
b. To non-U.S. addressees (domicile) 1248 1249 0 1250 0 1.b
2. Loans to depository institutions and acceptances of other banks:
RCFD RCFD RCFD
---- ---- ----
a. To U.S. banks and other U.S. depository
institutions 5377 5378 0 5379 0 2.a
b. To foreign banks 5380 5381 0 5382 0 2.b
3. Loans to finance agricultural production and
other loans to farmers 1594 1597 0 1583 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) 1251 1252 14 1253 222 4.a
b. To non-U.S. addressees (domicile) 1254 1255 0 1256 0 4.b
RCFD RCFD RCFD
---- ---- ----
5. Loans to individuals for household, family, and
other personal expenditures:
a. Credit cards and related plans 5383 5384 0 5385 0 5.a
b. Other (includes single payment, installment,
and all student loans) 5386 5387 2,743 5388 1,412 5.b
6. Loans to foreign governments and official
institutions 5389 5390 0 5391 0 6
7. All other loans 5459 5460 0 5461 0 7
8. Lease financing receivables:
a. Of U.S. addressees (domicile) 1257 1258 67 1259 39 8.a
b. Of non-U.S. addressees (domicile) 1271 1272 0 1791 0 8.b
9. Debt securities and other assets (exclude other
real estate owned and other repossessed assets) 3505 3506 0 3507 0 9
</TABLE>
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.
<TABLE>
<CAPTION>
RCFD RCFD RCFD
---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
10. Loans and leases reported in items 1
through 8 above which are wholly or partially
guaranteed by the U.S. Government 5612 5,872 5613 2,531 5614 0 10
a. Guaranteed portion of loans and leases
included in item 10 above 5615 5,872 5616 2,531 5617 0 10.a
</TABLE>
<PAGE> 49
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-20
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
30
SCHEDULE RC-N - CONTINUED
<TABLE>
<CAPTION>
C473 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------
-(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
RCFD RCFD RCFD
---- ---- ----
<S> <C> <C> <C> <C> <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
RCFD RCFD RCFD
---- ---- ----
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 0 6560 0 M.2
RCON RCON RCON
---- ---- ----
3. Loans secured by real estate in domestic offices
(included in Schedule RC-N, item 1, above):
a. Construction and land development 2759 0 2769 0 3492 0 M.3a
b. Secured by farmland 3493 0 3494 0 3495 0 M.3b
RCON RCON RCON
---- ---- ----
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 2,121 5399 50 5400 0 M.3.cl
(2) All other loans secured by 1-4 family
residential properties 5401 6,288 5402 5403 0 M.3c2
d. Secured by multifamily (5 or more) residential
properties 3499 0 3500 3501 0 M.3d
e. Secured by nonfarm nonresidential properties 3502 655 3503 0 3504 1,132 M.3e
</TABLE>
<TABLE>
<CAPTION>
-(Column A)- -(Column B)-
Past due Past due 90
30 through 89 days or more
days and still and still
accruing accruing
RCFD RCFD
---- ----
<S> <C> <C> <C> <C>
4. Interest rate, foreign exchange rate, and other
commodity and equity contracts:
a. Book value of amounts carried as assets 3522 0 3528 0
b. Replacement cost of contracts with a
positive replacement cost 3529 0 3530 0
</TABLE>
<TABLE>
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Person to whom questions about the Reports of Condition and Income should be directed: C477 <-
Name Title Area Code/Phone Number/Extension
8901 TODD BAILEY 8901 ASSISTANT VICE PRESIDENT 8902 404-724-3835
Even though Call Reports must be filed electronically, RCON YES / NO TEXT
send my bank a sample set of paper Call Report ---- ---- Fax: Area Code/Phone Number
Forms for the next quarter: 9117 0 9116
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 50
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-21
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
31
SCHEDULE RC-O - OTHER DATA FOR DEPOSIT INSURANCE AND FICO ASSESSMENTS
C475 <-
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unposted debits (see instructions): RCON
----
a. Actual amount of all unposted debits 0030 317 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 0 2.a
OR
b. Separate amount of unposted credits:
(1) Actual amount of unposted credits to demand deposits 3512 0 2.b.1
(2) Actual amount of unposted credits to time and savings
deposits (1) 3514 0 2.b.2
3. Uninvested trust funds (cash) held in bank's own trust
department (not included in total deposits in domestic offices) 3520 0 3.
4. Deposits of consolidated subsidiaries in domestic offices and
in insured branches in Puerto Rico and U.S. territories and
possessions (not included in total deposits):
a. Demand deposits of consolidated subsidiaries 2211 0 4.a
b. Time and savings deposits (1) of consolidated subsidiaries 2351 0 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 saving deposits(l) 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
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:
RCON
a. Amount reflected in demand deposits (included in Schedule ----
RC-E, Part I, Item 4 or 5 column B) 2314 0 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 0 7.a
b. Unamortized discounts 5517 0 7.b
8. TO BE COMPLETED BY BANKS WITH "OAKAR DEPOSITS".
a. Deposits purchased or acquired from other FDIC-insured
institutions during the quarter (exclude deposits
purchased or acquired from foreign offices other than
insured branches in Puerto Rico and U.S. territories and
possessions):
RCON
(1) Total deposits purchased or acquired from other ----
FDIC-insured institutions during the quarter A531 0 8.a.1
(2) Amount of purchased or acquired deposits reported in
item 8.a.(1) above attributable to a secondary fund RCON
(i.e., BIF members report deposits attributable to ----
SAIF; SAIF members report deposits attributable to BIF) A532 0 8.a.2
b. Total deposits sold or transferred to other FDIC-insured
institutions during the quarter (exclude sales or transfers
by the reporting bank of deposits in foreign offices other
than insured branches in Puerto Rico and U.S. territories
and possessions) A533 0 8.b
</TABLE>
- -----------
(1) For FDIC and FICO insurance assessment purposes, "time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
<PAGE> 51
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-22
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
32
Schedule RC-O Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
RCON
----
9. Deposits in lifeline accounts 5596 9
10. Benefit-responsive "Depository Institution Investment
Contracts" (included in total deposits in domestic offices) 8432 0 10
11. Adjustments to demand deposits in domestic offices and
in insured branches in Puerto Rico and U.S. territories
and possessions reported in Schedule RC-E for certain
reciprocal demand balances:
a. Amount by which demand deposits would be reduced if
the reporting bank's reciprocal demand balances
with the domestic offices of U.S. banks and savings
associations and insured branches in Puerto Rico
and U.S. territories and possessions that were reported RCON
on a gross basis in Schedule RC-E had been reported on ----
a net basis 8785 0 11.a
b. Amount by which demand deposits would be increased if
the reporting bank's reciprocal demand balances with
foreign banks and foreign offices of other U.S. banks
(other than insured branches in Puerto Rico and U.S.
territories and possessions) that were reported on
a net basis in Schedule RC-E had been reported on a
gross basis 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 the reporting bank's net
reciprocal demand balances with the domestic offices
of U.S. banks and savings associations and insured
branches in Puerto Rico and U.S. territories and
possessions in Schedule RC-E A182 0 11.c
12. Amount of assets netted against deposit liabilities in
domestic offices and in insured branches in Puerto Rico
and U.S. territories and possessions on the balance
sheet (Schedule RC) in accordance with generally
accepted accounting principles (exclude amounts related
to reciprocal demand balances):
a. Amount of assets netted against demand deposits A527 0 12.a
b. Amount of assets netted against time and savings
deposits A528 0 12.b
<CAPTION>
MEMORANDA (TO BE COMPLETED EACH QUARTER EXCEPT AS NOTED) Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <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 RCON
----
(1) Amount of deposit accounts of $100,000 or less 2702 1,701,894 M.1.a1
RCON NUMBER
(2) Number of deposit accounts of $100,000 or less ----
(TO BE COMPLETED FOR THE JUNE REPORT ONLY) 3779 N/A M.1.a2
b. Deposit accounts of more than $100,000: RCON
----
(1) Amount of deposit accounts of more than $100,000 2710 1,037,282 M.1.b1
(2) Number of deposit accounts of more than $100,000 2722 3,297 M.1.b2
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 right whether your bank RCON YES/NO
has a method or procedure for determining a better estimate ----
of uninsured deposits than the estimate described above 6861 NO M.2.a
b. If the box marked YES has been checked, report the estimate of
uninsured deposits determined by using your bank's method or
procedure 5597 0 M.2.b
3. Has the reporting institution been consolidated with a parent
bank or savings association in the parent bank's or parent
savings association's Call Report or Thrift Financial Report?
If so, report the legal title and FDIC Certificate Number of the
parent bank or parent savings association:
TEXT RCON FDIC Cert No.
----
A545 A545 N/A M.3
</TABLE>
<PAGE> 52
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-23
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
33
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, 1997,
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 RCR IN
ITS ENTIRETY, DEPENDING ON THEIR RESPONSE TO ITEM 1 BELOW.
C480 <-
<TABLE>
<S> <C> <C> <C>
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 box at the right RCFD YES/NO
whether the bank has total capital greater than or ----
equal to eight percent of adjusted total assets 6056 N/A 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.
NOTE: All Banks are required to complete
items 2 and 3 below.
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2. Portion of qualifying limited-life capital instruments
(original weighted average maturity of at least five
years) that is includible in Tier 2 capital: RCFD
----
a. Subordinated debt (1) and intermediate term preferred stock A515 0 2.a
b. Other limited-life capital instruments A516 0 2.b
3. Amounts used in calculating regulatory capital ratios (report
amounts determined by the bank for its own internal regulatory
capital analyses consistent with applicable capital standards):
a. (1) Tier 1 capital 8274 345,008 3.a.1
(2) Tier 2 capital 8275 45,639 3.a.2
(3) Tier 3 capital 1395 0 3.a.3
b. Total risk-based capital 3792 390,647 3.b
c. Excess allowance for loan and lease losses (amount that
exceeds 1.25% of gross risk-weighted assets) A222 14,392 3.c
d. (1) Net risk-weighted assets (gross risk-weighted assets
less excess allowance reported in item 3.c above and all
other deductions) A223 3,636,728 3.d.1
(2) Market risk equivalent assets 1651 0 3.d.2
e. Maximum contractual dollar amount of recourse exposure in
low level recourse transactions (to be completed only if the
bank uses the "direct reduction method" to report these
transactions in Schedule RC-R) 1727 0 3.e
f. "Average total assets" (quarterly average reported in
Schedule RC-K, item 9, less all assets deducted from Tier 1
capital)(2) A224 4,262,769 3.f
</TABLE>
ITEMS 4-9 AND MEMORANDA ITEMS 1 AND 2 ARE TO BE COMPLETED
BY BANKS THAT ANSWERED NO TO ITEM 1 ABOVE AND
BY BANKS WITH TOTAL ASSETS OF $1 BILLION OR MORE.
<TABLE>
<CAPTION>
--(Column A)-- --(Column B)--
Assets Credit Equiv-
Recorded alent Amount
on the of Off-Balance
Dollar Amounts in Thousands Balance Sheet Sheet Items (3)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
4. Assets and credit equivalent amount of off-balance sheet
items assigned to the Zero percent risk category: RCFD
----
a. Assets recorded on the balance sheet 5163 156,817 RCFD 4.a
----
b. Credit equivalent amount of off-balance sheet items 3796 0 4.b
</TABLE>
- ------------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not deduct excess allowance for loan and lease losses.
(3) Do not report in column B the risk-weighted amount of assets reported in
column A.
<PAGE> 53
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-24
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
34
SCHEDULE RC-R - CONTINUED
<TABLE>
<CAPTION>
-(Column A)- -(Column B)-
Assets Credit Equiv-
Recorded alent Amount
on the of Off-Balance
Dollar Amounts in Thousands Balance Sheet Sheet Items(2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 20 percent risk category: RCFD
----
a. Assets recorded on the balance sheet 5165 1,150,197 RCFD 5.a
----
b. Credit equivalent amount of off-balance sheet items 3801 316,220 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 666,099 6.a
b. Credit equivalent amount of off-balance sheet items 3803 736 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 2,488,246 7.a
b. Credit equivalent amount of off-balance sheet items 3805 536,173 7.b
8. On-balance sheet asset values excluded from and deducted in
the calculation of the risk-based capital ratio(2) 3806 6,168 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 4,467,527 9.
<CAPTION>
MEMORANDA Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Current credit exposure across all off-balance sheet RCFD
derivative contracts covered by the risk-based ----
capital standards 8764 736 M.1
</TABLE>
<TABLE>
<CAPTION>
--- With a remaining maturity of ---
--(Column A)-- --(Column B)-- --(Column C)--
One Year Over Over
or less one year five years
2. Notional principal amounts of off-balance thru five years
sheet derivative contracts:(3) RCFD RCFD RCFD
---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
a. Interest rate contracts 3809 33.000 8766 0 8767 0 M.2.a
b. Foreign exchange contracts 3812 0 8769 0 8770 0 M.2.b
c. Gold contracts 8771 0 8772 0 8773 0 M.2.c
d. Other precious metals contracts 8774 0 8775 0 8776 0 M.2.d
e. Other commodity contracts 8777 0 8778 0 8779 0 M.2.e
f. Equity derivative contracts A000 0 A001 0 A002 0 M.2.f
</TABLE>
- ------------
(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. future contracts) not subject to risk-based capital, item 8
margin accounts and accrued receivables not included in the calculation of
credit equivalent amounts of off-balance sheet derivatives 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.
<PAGE> 54
<TABLE>
<S> <C> <C> <C> <C> <C>
SunTrust Bank, Nashville, N.A. Call Date: 09/30/1998 State #: 472100 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 04955 RC-25
ATLANTA, GA 30302 Transit #: 06400004
</TABLE>
35
OPTIONAL NARRATIVE STATEMENT CONCERNING THE AMOUNTS
REPORTED IN THE REPORTS OF CONDITION AND INCOME
at close of business on September 30, 1998
SunTrust Bank. Nashville, N.A. ATLANTA GA
------------------------------ ------- --
LEGAL TITLE OF BANK CITY STATE
The management of the reporting bank may, if it wishes, submit a brief narrative
statement on the amounts reported in the Reports of Condition and Income. This
optional statement will be made available to the public, along with the publicly
available data in the Reports of Condition and Income, in response to any
request for individual bank report data. However the information reported in
column A and in all of Memorandum item 1 of Schedule RC-N is regarded as
confidential and will not be released to the public.
BANKS CHOOSING TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE
STATEMENT DOES NOT CONTAIN THE NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK
CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN
SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE
PUBLIC OR THAT WOULD COMPROMISE THE PRIVACY OF THEIR CUSTOMERS.
All information furnished by the bank in the narrative statement must be
accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statements accuracy.
If, subsequent to the original submission material changes are submitted for the
data reported in the Reports of Condition and Income, the existing narrative
statement will be deleted from the files, and from disclosure; the bank at its
option, may replace it with a statement appropriate to the amended area.
The optional narrative statement will appear in agency records and in release to
the public exactly as submitted (or amended as described in the preceding
paragraph) by the management of the bank.
THE STATEMENT WILL NOT EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES
FOR ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT SIGNIFY THAT
ANY FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE
INFORMATION CONTAINED THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY
PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
- --------------------------------------------------------------------------------
C471 C472<-
RCON
----
X = NO COMMENT Y = COMMENT 6979 X
BANK MANAGEMENT STATEMENT (please type or print clearly).
TEXT (70 CHARACTERS PER LINE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature of Executive Officer of Bank Date of Signature
<PAGE> 55
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
- --------------------------------------------------------------------------------
36
SUNTRUST BANK, NASHVILLE, N.A. OMB No. For FDIC: 1557-0081
P.O. BOX 4418 CENTER 632 OMB No. For FDIC: 3064-0052
ATLANTA, GA 30302 OMB No. For Federal Reserve: 7100-0036
Expiration Date: 3/31/2001
SPECIAL REPORT
C700 <-
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------
Close of Busi-
ness Date: FDIC Cert. #
09/30/1998 04955
- --------------------------------------------------------------------------------
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 S 15,000 of indebtedness of each executive officer under bank credit
card plan.) See Section 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 directors and principal shareholders who are not
executive officers.
<TABLE>
<CAPTION>
RCFD
----
<S> <C> <C> <C> <C> <C>
a. Number of loans made to executive officers since the previous Call Report date 3561 0 a.
b. Total dollar amount of above loans (in thousands of dollars) 3562 0 b.
c. Range of interest charged on above loans
RCFD From RCFD TO
---- ---- ---- --
(example: 9-3/4% = 9.75) 7701 0.00% 7702 0.00% c.
- ------------------------------------------------------------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT: DATE (Month, Day, Year):
- ------------------------------------------------------------------------------------------------------------------------
FDIC 8040/53 (3-98)
</TABLE>
<PAGE> 56
REPORT OF CONDITION
- --------------------------------------------------------------------------------
Consolidating domestic subsidiaries of the
SunTrust Bank, Nashville, N.A.
in the state of GA at the close of business on September 30, 199
published in response to call made by (Enter additional information below)
4769
4769
STATEMENT OF RESOURCES AND LIABILITIES
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 182,882
Interest-bearing balances 1,922
SECURITIES:
Held-to-maturity securities 0
Available-for-sale securities 494,617
Federal funds sold and securities purchased under agreements to resell 339,750
Loans and lease financing receivables:
Loans and leases, net of unearned income 3,366,991
LESS: Allowance for loan and lease losses 60,031
LESS: Allocated transfer risk reserve 0
Loans and leases, net of unearned income, allowance, and reserve 3,306,960
Trading Assets 0
Premises and fixed assets (including capitalized leases) 35,052
Other real estate owned 4,156
Investments in unconsolidated subsidiaries and associated companies 5,241
Customers' liability to this bank on acceptances outstanding 281
Intangible assets 0
Other assets 36,635
Total assets 4,407,496
</TABLE>
FDIC 8040/54B (3-90)
- --------------------------------------------------------------------------------
<PAGE> 57
REPORT OF CONDITION (CONTINUED)
LIABILITIES
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
DEPOSITS:
In domestic offices 2,739,176
Noninterest-bearing 609,964
Interest-bearing 2,129,212
In foreign offices, Edge and Agreement subsidiaries, and IBFs 100,968
Noninterest-bearing 0
Interest-bearing 100,968
Federal funds purchased and securities sold under agreements to repurchase 1,051,700
Demand notes issued to the U.S. Treasury 0
Trading liabilities 0
Other borrowed money:
With remaining maturity of one year or less 63,300
With a remaining maturity of more than one year through three years 28,236
With a remaining maturity of more than three years 50,000
Bank's liability on acceptances executed and outstanding 281
Subordinated notes and debentures 0
Other liabilities 25,065
Total liabilities 4,058,726
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 25,000
Surplus 73,296
Undivided profits and capital reserves 246,712
Net unrealized holding gains (losses) on available-for-sale securities 3,762
Cumulative foreign currency translation adjustments 0
Total equity capital 348,770
Total liabilities and equity capital 4,407,496
</TABLE>
We, the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We 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 and is true and correct.
Text
----
4769
Director #1 ------------------------------------------
Director #2 ------------------------------------------
Director #3 ------------------------------------------
I,
----------------------------------------------
4769
(Name, Title)
of the above named bank do hereby declare
that this Report of Condition is true and
correct to the best of my knowledge and belief.
<PAGE> 58
EXHIBIT 10
RESOLUTIONS OF THE
BOARD OF DIRECTORS
OF THIRD NATIONAL BANK IN NASHVILLE
WHEREAS, the Directors of the Bank deem it in the best interest of
the Bank to change its name to "SunTrust Bank, Nashville, National Association";
WHEREAS, it is necessary that the proposed name change be approved by
the shareholder of the Bank;
NOW, THEREFORE, BE IT RESOLVED, that, subject to the approval of the
shareholder, the name of the Bank shall be changed to "SunTrust Bank, Nashville,
National Association", and the First Article of the Bank's Articles of
Association shall be amended to read as follows:
"FIRST, The title of this Association shall be
SunTrust Bank, Nashville, National Association
The Association shall operate a general banking and trust
business pursuant to all the laws of the United States related and
applicable to national banks, all of which are incorporated into this
Charter, both as a matter of law and by reference herein."
FURTHER RESOLVED, that the proposed amendment to the Articles of
Association of the Bank changing the name shall be submitted to a vote of the
shareholder of the Bank;
FURTHER RESOLVED, that the effective date of the name change shall be
the date determined by the Officers of the Bank, which date shall be set forth
in the Articles of Amendment amending the Bank's Articles of Association; and
FURTHER RESOLVED, that the Officers of the Bank are authorized and
directed to take or cause to be taken any and all actions, and to execute,
seal, file, deliver and carry out any such Articles of Amendment, documents,
agreements, instruments or certificates, and to make any regulatory filings,
that any of them deem to be necessary or desirable to effectuate the intent of
the foregoing resolutions.
<PAGE> 59
CERTIFICATE OF SECRETARY
The undersigned, Rita Bennett, being Secretary of the Board of
Directors of Third National Bank in Nashville, hereby certifies that the
foregoing Resolution was duly adopted by the Board of Directors on the 24th day
of April, 1995.
/s/ Rita Bennett
---------------------------------
Rita Bennett
