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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF
THE SECURITIES EXCHANGE ACT OF 1934
UNION PLANTERS MORTGAGE FINANCE CORP.
(Exact name of registrant as specified in its charter)
Incorporated in Delaware 62-1712370
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
7130 GOODLETT FARMS PARKWAY, CORDOVA, TENNESSEE 38018
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (901) 580-6000
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Not Applicable Not Applicable
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of class)
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TABLE OF CONTENTS
<TABLE>
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PAGE NO.
<S> <C> <C>
Item 1. Description of Business
Organization................................................................................2
Issuance of Collateralized Mortgage Bonds and Mortgage Securities...........................2
Item 2. Financial Information..........................................................................3
Item 3. Properties.....................................................................................3
Item 4. Security Ownership of Certain Beneficial Owners and Management.................................3
Item 5. Directors and Executive Officers...............................................................3
Item 6. Executive Compensation.........................................................................4
Item 7. Certain Relationships and Related Transactions.................................................4
Item 8. Legal Proceedings..............................................................................5
Item 9. Market Price of and Dividends on the Registrant's Common
Equity and Related Stockholder Matters.......................................................5
Item 10. Recent Sales of Unregistered Securities........................................................5
Item 11. Description of Registrant's Securities to be Registered........................................5
Item 12. Indemnification of Directors and Officers......................................................5
Item 13. Financial Statements and Supplementary Data....................................................6
Item 14. Changes in and Disagreements with Accountants on Accounting
Financial Disclosure.........................................................................6
Item 15. Financial Statements and Exhibits..............................................................7
15(a) Financial Statements..................................................................7
15(b) Index of Exhibits.....................................................................7
Signatures..................................................................................................7
</TABLE>
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ITEM 1. DESCRIPTION OF BUSINESS
Organization
Union Planters Mortgage Finance Corp. (the "Company") was
incorporated in Delaware on September 5, 1997, as a wholly-owned,
limited-purpose financing subsidiary of Union Planters Bank, N.A., a national
banking association (the "Bank"). On December 30, 1997, the Company issued 1,000
shares of its common stock to the Bank for $10,000.
Issuance of Collateralized Mortgage Bonds and Mortgage Securities
The Company was organized to facilitate the financing of
mortgage loans through the issuance and sale of collateralized mortgage
obligations (the "Bonds") and certificates of participation in pools of
Collateral (as hereinafter defined) ("Mortgage Securities"). The Bonds will be
issued by either the Company or a trust established by the Company to issue a
series of Bonds. The Bonds will be issued pursuant to an indenture or indentures
and will be secured by one or more of the following: mortgage loans, Government
National Mortgage Association Certificates, Freddie Mac Mortgage Participation
Certificates, Fannie Mae Mortgage-Backed Certificates, other mortgage
certificates or collateralized mortgage obligations, funding agreements with
limited-purpose finance companies that may be secured by any or all of the
foregoing, insurance policies, and various accounts and funds (collectively, the
"Collateral"). The Collateral for a series of Bonds will be pledged to a
trustee. The Mortgage Securities will be issued by a trust pursuant to a trust
agreement. The Mortgage Securities will represent a percentage interest in a
pool of Collateral purchased by the trust.
After payment of the expenses of an offering and certain
administrative expenses, the net proceeds from an offering of Bonds or Mortgage
Securities will be used to purchase Collateral from the Bank or one of its
affiliates, the Company (in the case of Mortgage Securities issued by a Trust)
or various third parties. In certain cases, a portion of such proceeds may be
lent to various limited-purpose finance companies, which will purchase
Collateral from their affiliates. The Bank, its affiliates and the Company can
be expected to use the proceeds to reduce indebtedness incurred to obtain such
loans, to acquire additional Collateral or for general corporate purposes.
The Certificate of Incorporation of the Company limits its
activities to the foregoing and to acts incidental thereto. Without the consent
of each trustee under any indenture pursuant to which any Bonds were issued, the
Company may not, among other prohibited activities, (i) incur any indebtedness
other than the Bonds and indebtedness that is subordinated to the Bonds, (ii)
engage in any other business; (iii) consolidate or merge with any other entity,
unless the successor expressly assumes the obligations evidenced by the Bonds;
or (iv) file a petition in bankruptcy.
The Company's plan of operations for the 1998 fiscal year is
to issue series of Bonds and Mortgage Securities pursuant to public and private
offerings.
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ITEM 2. FINANCIAL INFORMATION
The Company was incorporated on September 5 1997, and has not
yet commenced operations. Subsequent to incorporation, the Company issued 1,000
shares of common stock to the Bank on December 30, 1997. Accordingly, no
Selected Financial Data and no Management's Discussion and Analysis of Financial
Condition and Results of Operations are presented.
ITEM 3. PROPERTIES
The Company has no physical properties. Its primary assets
will be Collateral pledged to a trustee to secure a series of Bonds.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The Company is a wholly-owned subsidiary of the Bank. The
Company's officer and directors do not own any shares of the Bank. Therefore, no
beneficial ownership information is presented.
ITEM 5. DIRECTORS AND EXECUTIVE OFFICERS
The directors and executive officers of the Company are:
Name Position Age
John E. Gnuschke, Ph. D. Director 53
Joel R. Katz Director; President 42
James K. Plunkett Director; Vice President; 37
Secretary
Leslie M. Stratton Director 61
Dr. Gnuschke has been a Director since February 24th, 1998. He is
currently director of the Bureau of Business and Economic Research and the
Center for Manpower Studies and Professor of Economics at the University of
Memphis. The Bureau and the Center are the applied business, economic, and labor
market research divisions within the Fogelman College of Business and Economics.
The divisions also support the research and publication efforts of
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faculty members and interact with other research organizations. The
programs of the units includes public service to government agencies and the
business community. The Bureau and the Center rank among the top applied
research divisions in the nation. Dr. Gnuschke received Ph. D. and M.A. degrees
from the University of Missouri and a B.S. from Utah State.
Mr. Katz has been Chairman of the Board of Directors and President of
the Company since its organization. He is serving a one-year term as Director.
He has been President of Union Planters Mortgage, a division of the Bank, since
February 1, 1997. Prior to his employment with Union Planters, Mr. Katz was
President and CEO of Boatmen's National Mortgage, Inc. In addition to overall
management of the Company, Mr. Katz' responsibilities included servicing
acquisitions and servicing activities involved with the Company's REMIC, CMO,
and other structured finance transactions. His prior employment also includes
several years as an attorney at Brown & Wood in New York, New York.
Mr. Plunkett has been a Director, Vice President and Secretary of the
Company since its organization. He is serving a one-year term as Director. He
has been Senior Vice President in the Funds Management Division of Union
Planters Corporation since March 1, 1995. Mr Plunkett was Senior Vice President
and manager of Investments and Funds Management for Sunburst Bank in Grenada,
Mississippi for several years prior to joining Union Planters. His
responsibilities in both positions include Net Interest Margin and Asset
Liability Management, portfolio strategy and execution, securitization and sale
of loans, and other trading and balance sheet management activities.
Mr. Stratton has been a Director of the Company since its
organization. He is serving a one-year term as Director. He is Chairman and 100%
owner of Leslie M. Stratton, Co., a wholesale distributor of hardware and
equipment.
ITEM 6. EXECUTIVE COMPENSATION
The directors and executive officers of the Company do not receive
any remuneration from the Company.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
With respect to each series of the Bonds or Mortgage Securities, the
Company may purchase from the Bank, or any other affiliates thereof, certain of
the Collateral that will secure such series of Bonds or Mortgage Securities. The
Bank will advance to, or contribute to the capital of, the Company funds as
necessary to pay certain Bond issuance costs and administrative expenses. The
Company will be obligated to repay any advances and, in addition, to reimburse
the Bank for amounts for which the Bank may become obligated to any bank issuing
a letter of credit used to fund the various funds comprising a portion of the
Collateral for a series. Such reimbursement obligations, however, will be
subordinate to the Company's obligations to the security holders.
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The Bank, a subsidiary of Union Planters Corporation, will provide
the Company with accounting and administrative services, including services of
officers, and will charge the Company for such services. Payment for such
services will be subordinate to the Company's obligations to the holders of
Bonds and Mortgage Securities. The Bank may act as a master servicer or servicer
with respect to mortgage loans comprising a portion of the Collateral. The Bank
will receive customary master servicing and servicing fees, as applicable, for
such services.
ITEM 8. LEGAL PROCEEDINGS
None
ITEM 9. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S
COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
All of the Company's Common Stock, its sole class of equity
securities, is owned by the Bank. Accordingly, there is no public trading market
for its Common Stock. The Company has not paid any dividends with respect to its
Common Stock.
ITEM 10.RECENT SALES OF UNREGISTERED SECURITIES
On December 30, 1997, the Company sold 1,000 shares of its Common
Stock to the Bank for a cash price of $10,000. Such shares were not registered
under the Securities Act of 1933, in reliance upon the exemption therefrom
provided under Section 4(2) of that Act.
ITEM 11.DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The class of securities of the Company to be registered hereby
consists of its Common Stock, par value $0.01 per share, of which 1,000 shares
are authorized and 1,000 shares are issued and outstanding. All outstanding
shares are duly and validly authorized and issued and fully paid and
nonassessable. The authorized number of shares of Common Stock may be increased
or decreased and certain other changes may be made therein (and one or more
classes of preferred or special stock may be created) by the affirmative vote of
the holders of more than two-thirds of the outstanding shares of the Common
Stock.
Holders of the shares of Common Stock of the Company are entitled to
receive dividends when and if declared by the Board of Directors of the Company
out of funds legally available therefor. Holders of Common Stock of the Company
are entitled to one vote per share on all matters that properly come before the
Stockholders. Stockholders have no conversion or redemption rights, are not
liable for further calls or assessments, and, upon liquidation, are entitled,
after payment of all liabilities, to receive the assets of the Company, either
in cash or in kind, on a pro rata basis. Stockholders have the right to
subscribe to newly-issued shares of Common Stock in accordance with their
current ownership of Common Stock.
ITEM 12.INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated under the laws of Delaware. Section 145
of the Delaware General Corporation Law provides that a Delaware corporation may
indemnify any persons, including officers and directors, who are, or are
threatened to be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation, by reason of the
fact that such person was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise). The indemnity may include expenses (including
attorneys' fees),
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judgements, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation's best interests and, for criminal
proceedings, had no reasonable cause to believe that his conduct was illegal. A
Delaware corporation may indemnify officers and directors in an action by or in
the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expense which
such officer or director actually and reasonably incurred.
The Certificate of Incorporation and Bylaws of the Company provide,
in effect, that, subject to certain limited exceptions, the Company will
indemnify its officers and directors to the extent permitted by the Delaware
General Corporation Law.
The Bank carries an insurance policy providing directors and officers
liability insurance for any liability its directors or officers or the directors
or officers of any of its subsidiaries, including the Company, may incur in
their capacities as such.
ITEM 13. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Item 15(b) for a listing of financial statements and exhibits
included herein.
ITEM 14. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
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ITEM 15. FINANCIAL STATEMENTS AND EXHIBITS
(A) FINANCIAL STATEMENTS
The following financial statement filed under Item 13. of this
registration statement is as follows:
1. Audited balance sheet of the Company as of December 30,
1997 as audited by Price Waterhouse LLP, along with its report
thereon (see exhibit listing below). The Company has not yet
commenced operations.
(B) INDEX OF EXHIBITS
3.1 Articles of Incorporation of the Company
3.2 Bylaws of the Company
99.1 Audited Balance Sheet as of December 30, 1997, including
Report of Independent Accountants
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
UNION PLANTERS MORTGAGE FINANCE CORP.
Date: February 27, 1998 By: /s/ James K. Plunkett
-----------------------------------
James K. Plunkett, Vice President
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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
UNION PLANTERS MORTGAGE FINANCE CORP.
Article FIRST: The name of the corporation (the "Corporation") is:
UNION PLANTERS MORTGAGE FINANCE CORP.
Article SECOND: The address of the registered office of the Corporation
in the State of Delaware is The Corporation Trust Company, 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name of its registered
agent at that address is The Corporation Trust Company.
Article THIRD: For all purposes of this Certificate of Incorporation,
the following terms have the meanings assigned to them in this Article THIRD and
such definitions extend to the plural as well as the singular forms of the
defined terms.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control
with any holder of common stock of the Corporation.
"Independent Director" means a Person (i) who, except in his
or her capacity as a director and/or officer of the Corporation, is not
an employee, director or officer, or a former employee, director or
officer, of Union Planters Corporation or any Affiliate; provided,
however, that such person may have formerly served as an Independent
Director of an Affiliate of Union Planters Corporation, (ii) who is not
a direct, indirect or beneficial holder of 5% or more of the
outstanding stock or any other equity interest in Union Planters
Corporation or any Affiliate, (iii) who is not a spouse, parent, child,
grandchild or sibling of any individual encompassed within clause (i)
or clause (ii) above, (iv) who is not a trustee in bankruptcy of Union
Planters Corporation or any Affiliate, and (v) who has not received,
and was not a member or employee of a firm or business that received,
in any year within the five years immediately preceding or any years
during such person's incumbency as a director or officer of the
Corporation, fees or other income from Union Planters Corporation or
any Affiliate in the aggregate in excess of 10% of the gross income,
for any applicable year, of such person, firm or business (not
including any fees received by such person for his or her service as a
Director or officer of the Corporation).
"Person" means any individual, corporation, association,
company, limited liability company, joint-stock company, business
trust, partnership, joint venture, unincorporated organization or
government or any agency or political subdivision thereof.
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Article FOURTH: The purposes for which the Corporation is formed are
limited solely as follows:
(a) To purchase or otherwise acquire, own, hold, pledge,
finance, transfer, assign and otherwise deal in or with mortgage loans,
mortgage-backed securities, mortgage collateralized obligations, other
interests in real estate, United States government securities and
securities of any agency or instrumentality of the United States, and
any combination of the foregoing, including, but not limited to, (1)
mortgage loans secured by senior or subordinate liens on residential
property, (2) participation interests in mortgage loans, (3)
pass-through, mortgage-backed certificates as to which the Fannie Mae
guarantees the timely payment of interest at the pass-through rate and
the timely payment of principal, (4) pass-through, mortgage-backed
certificates as to which the Federal Home Loan Mortgage Corporation
guarantees timely payment at the participation certificate rate and the
ultimate collection of all principal, (5) pass-through, mortgage-backed
certificates as to which the Government National Mortgage Association
guarantees timely payment of principal installments and interest fixed
on the certificate, (6) pass-through, mortgage-backed certificates as
to which the United States Department of Veterans Affairs guarantees
the timely payment of interest at the pass-through rate and the timely
payment of principal, (7) regular or residual interests in real estates
mortgage investment conduits or regular or ownership interests in
financial assets securitization investment trusts, (8) any other
mortgage pass-through certificates or mortgage- collateralized
obligations, (9) entitlements to payments on or other interests in such
mortgage loans, certificates, or obligations (collectively, "Mortgage
Collateral"), and (10) other securities issued or guaranteed by the
United States government or any agency, subdivision or instrumentality
thereof ("Government Securities").
(b) To (1) issue and sell from time to time one or more series
of certificates, bonds, notes or other securities and to incur other
indebtedness, including the issuance and sale of certificates
representing interests in trusts established by the Corporation
(collectively the "Securities"), which Securities shall (A) represent
interests in or be secured by the Mortgage Collateral, Government
Securities or other assets pledged or sold to secure payment of such
Securities (together with the Mortgage Collateral and Government
Securities, the "Collateral"), (B) be nonrecourse to the Corporation
and its assets other than the Collateral and (C) not constitute a claim
against the Corporation to the extent that funds produced by the
Collateral are insufficient to allow full and/or timely payments or
distributions to be made on such Securities or to allow full and/or
timely payment of principal and interest thereon in accordance with the
terms thereof and (2) incur, assume or guaranty indebtedness to the
extent not prohibited under paragraph (b) of Article FIFTH below;
(c) To (1) acquire, own, hold, sell, transfer, assign, pledge,
finance, refinance and otherwise deal in or with Securities, (2)
acquire, own, hold, sell, transfer, assign, pledge, finance, refinance
and otherwise deal in or with Collateral,
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and (3) acquire, own, hold, sell, transfer, assign, pledge and
otherwise deal in or with any or all of the ownership interests in
trusts established by the Corporation or other entities, institutions
or individuals.
(d) To use the proceeds of the sale of the Securities to
purchase or otherwise acquire Collateral or to loan the proceeds of the
sale of the Securities to entities that may or may not be affiliated
with the Corporation or to make dividend payments to the extent
permitted by law;
(e) To invest cash balances, from time to time, as provided in
any trust agreement, pooling and servicing agreement, indenture or
similar document to which the Corporation may be a party in connection
with the issuance of the Securities; and
(f) Subject to the limitations contained in Article FIFTH of
this Certificate of Incorporation, to engage in any activity and to
exercise any power that is incidental to or that renders convenient the
accomplishment of any or all of the foregoing and that is permitted to
corporations under the laws of the State of Delaware and that is not
required to be set forth specifically in this Certificate of
Incorporation.
Article FIFTH: Notwithstanding any other provision in this Certificate
of Incorporation and any provision of law that otherwise so empowers the
Corporation, until such time as all indebtedness of the Corporation evidenced by
Securities shall be indefeasibly paid in full and all liens and security
interests securing such indebtedness shall be indefeasibly released and
discharged, the Corporation shall not perform any act in contravention of any of
the following clauses of this Article FIFTH without the express prior written
unanimous consent of the Board of Directors, including each Independent
Director; provided, however, the Corporation shall not perform any act in
contravention of any of the following clauses of this Article FIFTH if such act
would cause a reduction or withdrawal of any credit rating assigned by any
nationally recognized statistical rating organization to any Security at the
request of the Corporation:
(a) The Corporation shall not engage in any business or
activity other than as authorized in Article FOURTH hereof.
(b) The Corporation shall not incur, assume or guaranty any
indebtedness except for (1) such indebtedness as (A) may be incurred by
the Corporation in connection with the issuance of the Securities and
(B) provides for recourse solely to the Collateral pledged to secure
such indebtedness or to entities other than the Corporation, and (2)
indebtedness that by its terms (A) is subordinated to indebtedness of
the Corporation evidenced by Securities and (B) provides that the
holder thereof may not cause the filing of a petition in bankruptcy or
take any similar action against the Corporation until at least 91 days
after every indebtedness of the Corporation evidenced by the Securities
is indefeasibly paid in full.
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(c) The Corporation shall not consolidate or merge with or
into any other entity or convey or transfer its properties and assets
substantially as an entirety to any entity, unless:
(1) the entity (if other than the Corporation) formed
in or surviving such consolidation or merger or that acquires
by conveyance or transfer the properties and assets of the
Corporation substantially as an entirety (A) shall be
organized and existing under the laws of the United States of
America or any state or the District of Columbia, and (B)
shall expressly assume the obligations, if any, of the
Corporation under, by amendment or supplement to any
indentures, trust agreements or pooling and servicing
agreements (collectively, the "Indentures") pursuant to which
the Securities that are then outstanding may have been issued
by the Corporation or by trusts established by the
Corporation, which amendments and/or supplements must be
executed and delivered to the appropriate trustees under such
Indentures (the "Trustees"), in form satisfactory to such
Trustees;
(2) immediately after giving effect to such
transaction, no default or event of default under the
Indentures shall have occurred and be continuing;
(3) the Corporation shall have delivered to the
Trustees an officers' certificate and an opinion of counsel
each stating that such consolidation, merger, conveyance or
transfer and such supplemental indentures are not prohibited
under the terms of the Indentures and that all conditions
precedent provided for in the Indentures relating to such
transaction have been complied with; and
(4) the Corporation shall have received written
confirmation from each rating agency that has rated any of the
outstanding Securities at the request of the Corporation that
such consolidation, merger, conveyance or transfer will not
adversely affect such rating agency's ratings of the
outstanding Securities;
provided, however, that the provisions of Article FIFTH shall not limit
the ability of the Corporation to sell the Collateral securing an
outstanding series of Securities, subject to the lien in favor of such
Securities, to a limited-purpose trust, limited liability company,
partnership or corporation.
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Upon any consolidation or merger with respect to the
Corporation, or any conveyance or transfer of the properties and assets
of the Corporation substantially as an entirety as provided above, the
entity formed by or surviving such consolidation or merger (if other
than the Corporation) or the entity to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Corporation under the Indentures
with the same effect as if such entity had been an original party to
each such Indenture. In the event of any such conveyance or transfer,
the Corporation may be dissolved, wound-up and liquidated at any time
thereafter, and the Corporation thereafter shall be released from its
liabilities and its obligations under the Indentures.
(d) The Corporation shall not amend, alter, change or repeal
any provision contained in Article THIRD, FOURTH, FIFTH, SIXTH, TENTH,
ELEVENTH OR THIRTEENTH of this Certificate of Incorporation.
(e) The Corporation shall not issue any additional Securities
if such issuance would result in the downgrading or withdrawal of any
ratings assigned to the outstanding Securities by any
nationally-recognized statistical rating organization that rated such
outstanding Securities at the request of the Corporation.
(f) For so long as any Securities issued by the Corporation
are outstanding, the Corporation shall not dissolve or liquidate in
whole or in part except in connection with a merger, consolidation or
sale of assets as provided in this Article FIFTH.
(g) The Corporation shall not engage in transactions with
Affiliates except on a commercially reasonable basis.
(h) For so long as any Securities issued by the Corporation
are outstanding, the Corporation shall not take any action that is
reasonably likely to cause the Corporation to become insolvent in
either the balance-sheet or equity sense.
Article SIXTH: Notwithstanding any other provision in this Certificate
of Incorporation and any provision of law that otherwise so empowers the
Corporation, until such time as all indebtedness of the Corporation evidenced by
Securities shall be indefeasibly paid in full and all liens and security
interests securing such indebtedness shall be indefeasibly released and
discharged, for so long as any Securities issued either by the Corporation are
outstanding, the Corporation shall not, without the express prior written
unanimous consent of the Board of Directors, including each Independent
Director, file a voluntary or involuntary petition for relief under any chapter
of the United States Bankruptcy Code, 11 U.S.C. ss.ss. 101-1330, institute
proceedings for the Corporation to be adjudicated bankrupt or insolvent, or
consent to the institution of bankruptcy or insolvency proceedings against the
Corporation, or file a petition or consent to a petition seeking reorganization
or relief under any applicable federal or state law relating to bankruptcy or
insolvency, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other
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similar official) of the Corporation, or a substantial part of the property of
the Corporation, or make any assignment for the benefit of creditors for itself,
or, except as required by law, admit in writing it's inability to pay its debts
generally as they become due, or take any corporate action in furtherance of any
such action.
Article SEVENTH: The total number of shares of stock which the
Corporation shall have authority to issue is 1,000 shares of Common Stock, par
value $0.01 per share.
Article EIGHTH: The name and mailing address of the Sole
Incorporator is as follows:
Name Mailing Address
---- ---------------
David B. Rich, III, Esquire Hunton & Williams
East Byrd Street
Richmond Virginia 23219
Article NINTH: The following provisions are inserted for the management
of the business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the Corporation,
its Directors and holders of its capital stock:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors of the
Corporation.
(b) The Directors of the Corporation shall have concurrent
power with the common stockholders to make, alter, amend, change, add
to or repeal the By-Laws of the Corporation.
(c) The number of Directors of the Corporation shall be as
from time to time fixed by, or set in the manner provided in, the
By-Laws of the Corporation. Election of Directors need not be by
written ballot unless the By-Laws so provide. The number of Directors
constituting the initial Board of Directors shall be three (3), and the
names and addresses of the persons who are to serve as the initial
Directors are as follows:
Name Address
---- -------
Joel R. Katz, Esquire 7130 Goodlett Farms Parkway
Cordova, Tennessee 38018
Mr. James K. Plumlett 130 Goodlett Farms Parkway
Cordova, Tennessee 38018
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Mr. Leslie M. Stratton 7593 Fairway Forest Drive North
Cordova, Tennessee 38018
(d) No Director shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (1) for any breach of the
Director's duty of loyalty to the Corporation or its stockholders, (2)
for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (3) pursuant to Section 174
of the Delaware General Corporation Law, relating to dividends, stock
purchases and redemptions, or (4) for any transaction from which the
Director derived an improper personal benefit. Any repeal or
modification of this Article NINTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a
Director of the Corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such
repeal or modification.
(e) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the Directors are hereby
empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject, nevertheless,
to the provisions of the Delaware General Corporation Law, this
Certificate of Incorporation, and any By-Laws adopted by the
stockholders or the Board of Directors; provided, however, that no
By-Laws hereafter adopted by the stockholders or the Board of Directors
shall invalidate any prior act of the Directors which would have been
valid if such By-Laws had not been adopted. The Corporation's Board of
Directors will duly authorize all of the Corporation's actions.
Article TENTH: Notwithstanding any other provision in this Certificate
of Incorporation and any other provision of law to the contrary, until such time
as all indebtedness of the Corporation evidenced by Securities shall be
indefeasibly paid in full and all liens and security interests securing such
indebtedness shall be indefeasibly released and discharged, the Corporation at
all times shall:
(a) maintain its books, records and bank accounts separate and
apart from those of all other Persons;
(b) not commingle any of its assets with those of any other
Person;
(c) pay the salaries of its own employees, if any, and
maintain a sufficient number of employees in light of its contemplated
business operations
(d) pay its own liabilities out of its own funds;
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<PAGE> 8
(e) maintain financial statements separate and apart from
those of all other Persons;
(f) observe all corporate formalities, organizational
formalities and other applicable or customary formalities;
(g) not guarantee or become obligated for the debts of any
other Person except as provided in Article FIFTH or hold out its credit
as being available to satisfy the obligations of any other Person;
(h) not pledge its assets for the benefit of any other Person
or make any loans or advances to any other Person;
(i) not acquire the direct obligations of, or securities
issued by, its shareholders or any Affiliate;
(j) allocate fairly and reasonably any overhead for expenses
that are shared with an Affiliate, including paying for the office
space and services performed by any employee of any Affiliate;
(k) use stationery, invoices and checks bearing its own name;
(l) conduct business in its own name, promptly correct any
known misunderstandings regarding its separate identity, and not
identify itself as a division of any other Person;
(m) maintain adequate capital in light of its contemplated
business operations;
(n) maintain arm's length relationships with all Affiliates
and enter into transactions with Affiliates only on commercial
reasonable bases; and
(o) not have any employees other than employees necessary to
perform authorized activities.
Article ELEVENTH: The Board of Directors of the Corporation shall
include at least one Independent Director at all times when any Securities are
outstanding. When voting on matters subject to the vote of the Board of
Directors, notwithstanding that the Corporation is not then insolvent in either
the equity or balance-sheet sense, the Independent Director shall take into
account the interests of the creditors of the Corporation, including, but not
limited to, the interests of all holders of Securities rated by any nationally
recognized statistical ratings organization that has rated the Securities at the
request of the Corporation.
-8-
<PAGE> 9
Article TWELFTH: Meetings of stockholders may be held within or without
the State of Delaware, as the By-Laws may provide. The books of the Corporation
may be kept (subject to any provision contained in the Delaware General
Corporation Law) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-Laws of the
Corporation.
Article THIRTEENTH: The Corporation is to have perpetual existence.
Article FOURTEENTH: The Corporation shall indemnify, to the full extent
permitted by the Delaware General Corporation Law, as amended from time to time,
all persons who may be indemnified pursuant thereto. As part of such
indemnification, the Corporation shall advance the expenses of such indemnified
persons to the full extent permitted by the Delaware General Corporation Law, as
amended from time to time. Notwithstanding any other provision in this Article
FOURTEENTH, (a) the Corporation's indemnification and advance obligations shall
be fully subordinate to all indebtedness of the Corporation evidenced by
Securities and (b) none of the Corporation's indemnification and advance
obligations shall constitute a "claim" against the Corporation within the
meaning of 11 U.S.C. ss. 101(5) until all indebtedness of the Corporation
evidenced by Securities is indefeasibly paid in full.
The Corporation and any Affiliate may purchase and maintain insurance
on behalf of any Person who is or was a director or officer of the Corporation
against any liability asserted against such Person and incurred by such Person
in any such capacity, or arising out of such Person's status as such, regardless
of whether the Corporation would have the power to indemnify such Person against
such liability under the provisions of this Article or applicable law.
Article FIFTEENTH: Except as provided in Articles FIFTH and SIXTH, the
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
-9-
<PAGE> 10
IN WITNESS WHEREOF, I, THE UNDERSIGNED, being the sole incorporator of
the Corporation hereinbefore named, do hereby declare and certify that the
Corporation has duly authorized this Certificate of Incorporation and the facts
herein stated are true, and accordingly have hereunto set my hand as of this 5th
day of September, 1997.
By: /s/ David B. Rich, III
---------------------------------
Sole Incorporator
David B. Rich, III
-10-
<PAGE> 1
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
UNION PLANTERS MORTGAGE FINANCE CORP.
* * * *
ARTICLE I
OFFICES
Union Planters Mortgage Finance Corp. (the "Corporation") may
have offices at such places both within and without the State of Delaware as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place. All meetings of the stockholders for the
election of directors and for any other purpose or purposes shall be held either
within or without the State of Delaware, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice.
Section 2. Date of Annual Meeting. The annual meeting of
stockholders shall be held on the date and at the time fixed, from time to time,
by the Board of Directors, provided that the first annual meeting shall be held
on a date within thirteen months after the organization of the Corporation, and
each successive annual meeting shall be held on a date within thirteen months
after the date of the preceding annual meeting, at which they shall elect by a
plurality vote a Board of Directors, and transact such other business as may
properly be brought before the meeting. If the day so designated shall be a
legal holiday, then such meeting shall be held on the first business day
thereafter that is not a legal holiday. A failure to hold an annual meeting of
stockholders at the designated time or to elect a sufficient number of directors
to conduct the business of the Corporation shall not affect otherwise valid
corporate acts or work a forfeiture or dissolution of the Corporation except as
may be otherwise specifically provided in the Delaware General Corporation Law.
Section 3. Notice of Annual Meeting. Subject to Article IV
hereof, written or printed notice stating the place, day and hour of any meeting
of stockholders and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten (10) nor more
than sixty (60) days before the date of the meeting, either personally or by
mail, by or at the direction of the President, the Secretary, or the officers or
persons calling the meeting, to each stockholder of record entitled to vote at
the meeting.
Section 4. Call of Special Meeting. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the President
or, in his absence, the Secretary, and shall be called by the President or
Secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of stockholders owning a majority in amount of the
entire capital stock of the Corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or purposes of the proposed meeting.
Section 5. Notice of Special Meeting. Subject to Article IV
hereof, written notice of a special meeting of stockholders, stating the time,
place and object thereof, shall be given to each stockholder entitled to vote
<PAGE> 2
thereat, at least three days before the date fixed for the meeting. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section 6. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Corporation's certificate of incorporation. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted that might have been transacted at
the meeting as originally called.
When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the Delaware
General Corporation Law or of the Corporation's certificate of incorporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
Section 7. Stockholder List. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
every election of directors, a complete list of the stockholders entitled to
vote at said election, arranged in alphabetical order, showing the address of
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, during ordinary business
hours, for a period of at least ten days prior to the election, at a place
within the city, town or village where the election is to be held (which place
shall be specified in the notice of the meeting), and the list shall be produced
and kept at the time and place of the election during the whole time thereof,
and shall be subject to the inspection of any stockholder who may be present.
Section 8. Voting. At every meeting of the stockholders, each
stockholder shall be entitled to one vote in person or by proxy for each share
of the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after three years from its date, unless the proxy provides for
a longer period. Except where the transfer books of the Corporation have been
closed or a date has been fixed as a record date for the determination of its
stockholders entitled to vote, no share of stock shall be voted on at any
election for directors which has been transferred on the books of the
Corporation within twenty days preceding such election of directors.
Section 9. Proxies. At a meeting of the shareholders, every
shareholder having the right to vote will be entitled to vote in person, or by
proxy appointed by an instrument in writing signed by the shareholder or by his
duly authorized attorney in fact, bearing a date not more than eleven (11)
months prior to the meeting unless the instrument provides for a longer period.
All proxies shall be filed with the Secretary of the Corporation prior to or at
the meeting.
Section 10. Stockholder Action Without Meetings. Any action
required by the Delaware General Corporation Law, the certificate of
incorporation of the Corporation or these Bylaws to be taken, or any action that
may be taken, at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
have been necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
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<PAGE> 3
ARTICLE III
DIRECTORS
Section 1. Functions. The business of the Corporation shall be
managed by its Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Corporation's certificate of incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
Section 2. Qualification and Number. The number of directors
may be fixed from time to time by action of the stockholders or of the
directors, with a minimum of 1 and a maximum of 15; but if the number is not so
fixed, the number shall be 3. The directors shall be elected at annual meetings
of the stockholders, except as provided in Section 4 of this Article, and each
director elected shall hold office until his successor is elected and qualified.
A director need not be a stockholder or a citizen or resident of the United
States or the State of Delaware.
Section 3. Place of Meeting. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
Section 4. Election, Term and Vacancies. The first meeting of
each newly elected Board of Directors shall be held at such time and place as
shall be fixed by the vote of the stockholders at the annual meeting and
provision of notice of such meeting to the newly elected directors shall not be
necessary in order legally to constitute the meeting, provided a quorum shall be
present. In the event of the failure of the stockholders to fix the time or
place of such first meeting of the newly elected Board of Directors, or in the
event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced.
Section 5. Call of Special Meeting. Special meetings of the
Board may be called by the President or, in his absence, the Secretary, on two
days' notice to each director; special meetings shall be called by the President
or Secretary in like manner and on like notice on the written request of two or
more directors.
Section 6. Notice; Actual or Constructive Waiver. No notice
shall be required for regular meetings for which the time and place have been
fixed by these Bylaws or by Board action taken at, or prior to, the immediately
preceding meeting of the Board.
Notice of the time and place of each special meeting of the
Board of Directors shall be sent to each director by mail, telegraph, wireless
telegraph, radio, cable, telex, facsimile or other method of electronic
communication then generally accepted for business use, or messenger, or any
combination thereof, addressed to such director at his address as it appears on
the records of the Corporation, or telephoned or delivered to him personally, at
least two days before the meeting, or, if the person calling the meeting is the
President, and the notice is given by one of the methods specified above other
than mail, such shorter period as the person calling the meeting may deem
appropriate in the circumstances.
Notice need not be given to any director or to any member of a
committee of directors who submits a written waiver of notice signed by him
before or after the time for the meeting stated therein. Attendance of any
director at a meeting shall constitute a waiver of notice of such meeting,
except when he attends a meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened.
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<PAGE> 4
Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the directors need be specified in any written
waiver of notice, except as otherwise provided in these Bylaws.
Section 7. Quorum and Action. At all meetings of the Board a
majority of the directors then in office shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Corporation's certificate of incorporation. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 8. Removal of Directors. Except as may otherwise be
provided by the Delaware General Corporation Law, any director or the entire
Board of Directors may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors.
Section 9. Written Consent. Unless otherwise restricted by
the Corporation's certificate of incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting, if prior to such
action a written consent thereto is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board or of such committee.
Section 10. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation, which, to the extent provided in the resolution, shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the Corporation, with the exception of any authority the
delegation of which is prohibited by Section 141 of the Delaware General
Corporation Law, and may authorize the affixation of the Corporation's seal to
all papers that may require such affixation. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
Section 11. Electronic Communication. Any member or members of
the Board of Directors or of any committee thereof may participate in a meeting
of the Board, or such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time.
Section 12. Compensation. The Corporation may pay the
directors their expenses, if any, for attendance at each meeting of the Board of
Directors, and a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
ARTICLE IV
WAIVER OF NOTICE
Whenever any notice is required to be given under the
provisions of any statute or of the Corporation's certificate of incorporation
or of these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent to the receipt by such person or persons of such notice.
4
<PAGE> 5
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President and a Secretary.
The President may also appoint a Treasurer, one or more Vice Presidents and one
or more Assistant Secretaries and Assistant Treasurers. Two or more offices may
be held by the same person.
Section 2. Appointment of Officers. The Board of Directors at
its first meeting after each annual meeting of stockholders shall choose a
President from among the directors, and shall choose a Secretary, who need not
be a member of the Board.
Section 3. Appointment of Additional Officers and Agents. The
President may appoint such other officers and agents as he shall deem necessary.
Such other officers and agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the President.
Section 4. Salaries. The salaries, if any, of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office. The officers of the Corporation
shall hold office until their successors are chosen and qualify. Any officer
elected or appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any officer may resign
at any time by giving written notice thereof to the President or to the Board of
Directors. Any such resignation will take effect as of the date. The acceptance
of such resignation shall not be necessary to make it effective. Any vacancy
occurring in any office of the Corporation shall be filled by the Board of
Directors.
Section 6. President. The President shall be the chief
executive officer of the Corporation, shall preside at all meetings of the
stockholders and the Board of Directors, shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
The President shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
otherwise required or permitted by law to be signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation.
Section 7. Vice President. The Vice President, or if there
shall be more than one, the Vice Presidents in the order determined by the Board
of Directors, shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section 8. Secretary and Assistant Secretaries. The Secretary
shall attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or President, under whose supervision he
shall be. He shall have custody of the corporate seal of the Corporation and he,
or an Assistant Secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by his signature
or by the signature of such Assistant
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<PAGE> 6
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature.
The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors, shall,
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 9. Treasurer and Assistant Treasurers. The Treasurer
shall have the custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation.
Section 10. Action of President to Make Certain Appointments.
The President shall, in addition to the powers and responsibilities included
within Section 6 of this Article V, also have the power from time to time, by
action in writing, to appoint employees of the Corporation who have
responsibility for the performance and supervision of certain special functions
as may be assigned to them from time to time in the corporation, and who may
have or include the title of "Vice President"; and to appoint Assistant
Secretaries and Assistant Treasurers. Any employee so appointed may have other
duties and other titles, subject to limitations prescribed by applicable law.
Any such employee so appointed shall perform in the particular capacity at the
will of the Board of Directors or the President; and he shall not be deemed, by
virtue of such appointment, to be an officer of the Corporation.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Execution of Stock Certificates. Every holder of
stock in the Corporation shall be entitled to have a certificate, signed by, or
in the name of the Corporation by, the President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares owned by him in the
Corporation.
Where a certificate is signed (1) by a transfer agent or an
assistant transfer agent or (2) by a transfer clerk acting on behalf of the
Corporation and registrar, the signature of any such President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be affixed
to the certificate by facsimile. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificates shall cease to hold the office or offices indicated
by their signatures, whether because of death, resignation or otherwise, before
such certificate or certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the Corporation.
Section 2. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the delivery to the Board of Directors
of an affidavit of the person claiming the certificate of stock to have been
lost, stolen or destroyed certifying to such loss, theft or destruction. When
authorizing the
6
<PAGE> 7
issue of any new certificate in lieu of a certificate alleged to have been lost,
stolen or destroyed, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to give to the
Corporation a bond in such sum as the Board of Directors may require as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 3. Transfer of Stock. Upon surrender to the
Corporation or to the transfer agent for the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession or
assignment, it shall be the duty of the Corporation to issue a new certificate
registered in the name of the designated transferee, successor or assignee, and
to record the transfer in the Corporation's stock ownership records.
Section 4. Record Dates. The Board of Directors is authorized
to fix a time in accordance with the provisions of the Delaware General
Corporation Law as the record date for determining the stockholders entitled to
notice of or to vote at any meeting of stockholders or adjournment thereof, to
consent or dissent in writing for any corporate action without a meeting, to
receive payment of any dividend or other distribution or allotment of any rights
or to exercise any rights in respect of any change, conversion or exchange of
stock, or for any other lawful action; provided, that if as to any particular
determination no such record date is so fixed by the Board of Directors, the
record date for such determination shall be the date prescribed by the Delaware
General Corporation Law for that purpose.
Section 5. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such shares on the part of any other person, regardless of
whether it shall have received actual or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Corporation's certificate of
incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in property,
or in shares of the Corporation's capital stock, subject to the provisions of
the Corporation's certificate of incorporation.
Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in its absolute discretion, deems proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the Board of Directors shall deem conducive to the interests of the
Corporation, and the Board of Directors may modify or abolish any such reserve
in the manner in which it was created.
Section 2. Fiscal Year. The fiscal year of the Corporation
shall be the calendar year, unless otherwise fixed by resolution of the Board of
Directors.
Section 3. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
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<PAGE> 8
ARTICLE VIII
AMENDMENTS
These Bylaws may be altered or repealed at any regular meeting
of the stockholders or of the Board of Directors or at any special meeting of
the stockholders or of the Board of Directors if notice of such alteration or
repeal be contained in the notice of such special meeting.
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<PAGE> 1
Exhibit 99.1
MORTGAGE Page 10
UNION PLANTERS MORTGAGE FINANCE CORP.
(A WHOLLY-OWNED SUBSIDIARY
OF UNION PLANTERS BANK, N.A.)
AUDITED BALANCE SHEET AS OF
DECEMBER 30, 1997
<PAGE> 2
MORTGAGE Page 11
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholder of
Union Planters Mortgage Finance Corp.
In our opinion, the accompanying balance sheet presents
fairly, in all material respects, the financial position of Union Planters
Mortgage Finance Corp. (the "Company"), a wholly-owned subsidiary of Union
Planters Bank, N.A., at December 30, 1997 in conformity with generally accepted
accounting principles. This financial statement is the responsibility of the
Company's management; our responsibility is to express an opinion on this
financial statement based on our audit. We conducted our audit in accordance
with generally accepted auditing standards which require that we plan and
perform the audit to obtain reasonable assurance about whether the balance sheet
is free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the balance sheet, assessing
the accounting principles used and significant estimates made by management, and
evaluating the overall balance sheet presentation. We believe that our audit of
the balance sheet provides a reasonable basis for the opinion expressed above.
/s/Price Waterhouse LLP
Memphis, Tennessee
February 10, 1998
<PAGE> 3
MORTGAGE PAGE 12
UNION PLANTERS MORTGAGE FINANCE CORP.
(A WHOLLY-OWNED SUBSIDIARY
OF UNION PLANTERS BANK, N.A.)
BALANCE SHEET
DECEMBER 30,1997
<TABLE>
<S> <C>
ASSETS
Cash $ 10,000
TOTAL ASSETS $ 10,000
STOCKHOLDER'S EQUITY
Common stock, par value $0.01 per share, 1000 shares authorized,
issued and outstanding $ 10
Additional paid-in-capital 9,990
TOTAL STOCKHOLDERS EQUITY $ 10,000
</TABLE>
The notes to the balance sheet are an integral part of this statement.
<PAGE> 4
MORTGAGE Page 13
UNION PLANTERS MORTGAGE FINANCE CORP.
(A WHOLLY-OWNED SUBSIDIARY
OF UNION PLANTERS BANK, N.A.)
NOTES TO THE BALANCE SHEET
NOTE 1 - ORGANIZATION OF THE COMPANY
Union Planters Mortgage Finance Corp. (the "Company"), a wholly-owned subsidiary
of Union Planters Bank, N.A. (the "Bank"), was incorporated on September 5,
1997. The Company was organized to facilitate the financing of mortgage-backed
securities and mortgage loans originated or purchased by affiliates of the Bank,
and other entities through the issuance and sale of mortgage participation
securities and mortgage-backed bonds. On December 30, 1997, the Company sold
1,000 shares of common stock to the Bank for $10,000. The Company had no
operations for the period prior to December 30, 1997.
The presentation of nonclassified balance sheets is common practice in this
industry; accordingly, assets and liabilities are not classified as current and
noncurrent.
NOTE 2--SECURITIES ISSUANCES
The Company has filed an initial registration statement with the Securities and
Exchange Commission on September 12, 1997, providing for the issuance of
securities in the aggregate principal amount of $1 billion, which has been
amended but has not yet been declared effective by the Securities and Exchange
Commission.
