AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 12, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BROWNING-FERRIS INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-1673682
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
757 N. ELDRIDGE
HOUSTON, TEXAS 77079
(713) 870-8100
(ADDRESS, INCLUDING ZIP CODES, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-----------------------------
GERALD K. BURGER
VICE PRESIDENT AND SECRETARY
BROWNING-FERRIS INDUSTRIES, INC.
757 N. ELDRIDGE
HOUSTON, TEXAS 77079
(713) 870-7820
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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Copies to:
FULBRIGHT & JAWORSKI L.L.P. VINSON & ELKINS L.L.P.
1301 MCKINNEY STREET 1001 FANNIN STREET
HOUSTON, TEXAS 77010 2500 FIRST CITY TOWER
(713) 651-5421 HOUSTON, TEXAS 77002-6760
ATTN: ARTHUR H. ROGERS (713) 758-2128
ATTN: MICHAEL P. FINCH
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Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
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If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED UNIT (1) PRICE (1) FEE
Debt Securities (2)
Preferred Stock (3)
Common Stock,
par value $.16-2/3
per share (4)
Warrants(5)
Total $700,000,000(6) 100% $700,000,000(6) $241,380
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(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(o).
(2) Subject to note (6) below, there are being registered
hereunder an indeterminate principal amount of Debt Securities
as may be sold from time to time by the Registrant, including
sales upon the exercise of Warrants. If any Debt Securities
are being issued at an original issue discount, then the
offering price shall be in such greater principal amount as
shall result in an aggregate initial offering price not to
exceed $700,000,000, less the dollar amount of any securities
previously issued hereunder.
(3) Subject to note (6) below, there are being registered
hereunder an indeterminate number of shares of Preferred Stock
as may be sold, from time to time, by the Registrant,
including sales upon exercise of Warrants.
(4) Subject to note (6) below, there are being registered
hereunder an indeterminate number of shares of Common Stock as
may be sold, from time to time, by the Registrant, including
sales upon exercise of Warrants. There are also being
registered hereunder an indeterminate number of shares of
Common Stock and Preferred Stock as shall be issuable upon
conversion or redemption of Preferred Stock or Debt Securities
registered hereby. Includes the preferred stock purchase
rights associated with the Common Stock.
(5) Subject to note (6) below, there are being registered
hereunder an indeterminate amount and number of Warrants,
representing rights to purchase Debt Securities, Preferred
Stock or Common Stock.
(6) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this
Registration Statement exceed $700,000,000. Any Securities
registered hereunder may be sold separately or as units with
other securities registered hereunder.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE
UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SAID SECTION 8(A), MAY DETERMINE.
SUBJECT TO COMPLETION, DATED JANUARY 12, 1994
PROSPECTUS
[BFI LOGO BOX]
BROWNING-FERRIS INDUSTRIES,INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
Browning-Ferris Industries, Inc. (the "Company") may offer from
time to time, either jointly or separately, at prices and on terms
to be determined at or prior to the time of sale, up to an
aggregate initial offering price of not more than $700 million (or,
if applicable, the equivalent thereof in other currencies) of its
(i) unsecured debt securities ("Debt Securities") consisting of
debentures, notes and/or other unsecured evidences of indebtedness
in one or more series, (ii) shares of preferred stock, without par
value ("Preferred Stock"), in one or more series, (iii) shares of
common stock, par value $.16 2/3 per share ("Common Stock") or (iv)
Warrants ("Warrants") to purchase Debt Securities, Preferred Stock
or Common Stock (the Debt Securities, Preferred Stock, Common Stock
and Warrants are collectively referred to as "Securities").
Specific terms of the Securities ("Offered Securities") in respect
of which this Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement ("Prospectus Supplement"),
together with the terms of the offering of the Offered Securities
and the initial price and the net proceeds to BFI from the sale
thereof. The Prospectus Supplement will set forth with regard to
the particular Offered Securities, without limitation, the
following: (i) in the case of Debt Securities, the specific
designation, aggregate principal amount, ranking as senior debt or
subordinated debt, authorized denomination, maturity, rate or rates
or method of calculation of interest and dates for payment thereof,
any exchangeability, conversion, redemption, prepayment or sinking
fund provisions, the currency or currencies or currency unit or
currency units in which principal, premium, if any, or interest, if
any, is payable, (ii) in the case of Preferred Stock, the
designation, number of shares, liquidation preference per share,
initial public offering price, dividend rate (or method of
calculation thereof), dates on which dividends shall be payable and
dates from which dividends shall accrue, any redemption or sinking
fund provisions, any voting rights, and any conversion or exchange
rights, (iii) in the case of Common Stock, the number of shares of
Common Stock and the terms of the offering and sale thereof, and
(iv) in the case of Warrants, the number and terms thereof, the
designation and number of Securities issuable upon their exercise,
the exercise price, the terms of the offering and sale thereof and,
where applicable, the duration and detachability thereof.
The Company may sell the Securities directly, through agents
designated from time to time or through underwriters or dealers.
If any agents of the Company or any underwriters or dealers are
involved in the sale of the Securities, the names of such agents,
underwriters or dealers and any applicable commissions and
discounts will be set forth in the Prospectus Supplement.
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
_______________________
________________, 1994
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE
SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR
TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS
PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF
THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR
SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER
THE SECURITIES LAWS OF ANY SUCH STATE.
This Prospectus may not be used to consummate sales of the
Securities unless accompanied by a Prospectus Supplement.
No person has been authorized to give any information or to make
any representations other than those contained or incorporated by
reference in this Prospectus and the Prospectus Supplement in
connection with the offering made hereby and if given or made, such
information or representations must not be relied upon as having
been authorized by the Company or by any other person. This
Prospectus and the Prospectus Supplement shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall
there be any sale of these securities in any jurisdiction in which
such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
jurisdiction. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made hereunder or thereunder
shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date
hereof or thereof or that the information contained herein or
therein is correct as of any time subsequent to their respective
dates.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports and other information
with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the
Company with the Commission may be inspected at 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the following Regional Offices
of the Commission: New York Regional Office, Seven World Trade
Center, New York, New York 10048; and Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Chicago,
Illinois 60661, and copies of such material can be obtained from
the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. Such reports,
proxy statements and other information can also be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005, at the offices of the Midwest Stock Exchange,
Inc., 120 S. LaSalle Street, Chicago, Illinois 60603, and at the
offices of the Pacific Stock Exchange, Inc., 301 Pine Street, San
Francisco, California 94104.
This Prospectus constitutes a part of a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (the "Securities
Act"). This Prospectus omits certain of the information contained
in the Registration Statement, and reference is hereby made to the
Registration Statement for further information with respect to the
Company and the Securities offered hereby. Any statements
contained herein concerning the provisions of any document filed as
an exhibit to the Registration Statement or otherwise filed with
the Commission are not necessarily complete, and in each instance
reference is made to the copy of such document so filed. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1993 (the "Annual Report"), including the financial
statements and schedules of the Company for the fiscal years
covered by the Annual Report and the report thereon by Arthur
Andersen & Co. contained in the Annual Report, filed with the
Commission pursuant to the Exchange Act, is incorporated herein by
reference.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of this Prospectus, and prior to the termination of the
offering of the Securities, shall be deemed to be incorporated by
reference in the Prospectus and to be a part hereof from the date
of filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be
incorporated by reference herein or in the accompanying Prospectus
Supplement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus.
Copies of all documents incorporated by reference (other than
exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents) will be provided
without charge to each person, including any beneficial owner, who
receives a copy of this Prospectus on the written request of such
person addressed to the Secretary's Department, Browning-Ferris
Industries, Inc., P.O. Box 3151, Houston, Texas 77253, or upon the
oral request of such person directed to the Secretary's Department
at (713) 870-7027.
THE COMPANY
The Company is one of the largest publicly-held companies engaged
in providing waste services. Subsidiaries and affiliates collect,
transport, treat and/or process, recycle and dispose of commercial,
residential and municipal solid waste and industrial wastes. The
Company's subsidiaries are also involved in resource recovery
facilities, medical waste services, portable restroom services and
municipal and commercial sweeping operations. The Company's
subsidiaries or affiliates operate in approximately 430 operating
locations in North America and 115 operating locations outside of
North America (including approximately 17 operating locations of
unconsolidated affiliates), and employ approximately 31,600 persons
(including approximately 3,200 employees of unconsolidated
affiliates). In addition to operations in the United States,
Canada and Puerto Rico, subsidiaries of the Company own interests
in subsidiaries or affiliates with operations in Australia,
Finland, Hong Kong, Italy, Kuwait, the Netherlands, New Zealand,
Spain, the United Kingdom and Venezuela.
The term "Company" refers to Browning-Ferris Industries, Inc., a
Delaware corporation, and its subsidiaries, affiliates and
predecessors unless the context requires otherwise. The Company's
executive offices are located at 757 N. Eldridge, Houston, Texas
77079. The Company's mailing address is P.O. Box 3151, Houston,
Texas 77253, and its telephone number is (713) 870-8100.
APPLICATION OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement with respect
to the proceeds from the sale of the particular Securities to which
such Prospectus Supplement relates, the net proceeds to be received
by the Company from the sale of the Securities will be added to the
Company's general funds and are expected to be applied to reduce
certain outstanding debt and for general corporate purposes,
including capital expenditures and acquisitions.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain
general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate ("Offered Debt Securities"). The
particular terms of the Offered Debt Securities and the extent to
which such general provisions may apply will be described in a
Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities will be general unsecured obligations of the
Company and will constitute either senior debt securities or
subordinated debt securities. In the case of Debt Securities that
will be senior debt securities ("Senior Debt Securities" and
"Offered Senior Debt Securities"), the Debt Securities will be
issued under a Restated Indenture dated as of September 1, 1991,
between the Company and Texas Commerce Bank, National Association,
as Trustee (successor trustee to First City, Texas-Houston,
National Association, which was formerly First City National Bank
of Houston) (the "Senior Trustee"), (the "Senior Indenture"). In
the case of Debt Securities that will be subordinated debt
securities ("Subordinated Debt Securities" and "Offered
Subordinated Debt Securities"), the Debt Securities will be issued
under an Indenture dated as of August 1, 1987, as amended (the
"Subordinated Indenture"), between the Company and NationsBank of
Texas, National Association, as Trustee (successor trustee to First
RepublicBank Houston, National Association, as Trustee) (the
"Subordinated Trustee"). The Senior Indenture and the Subordinated
Indenture are sometimes referred to herein individually as an
"Indenture" and collectively as the "Indentures". The Senior
Trustee and the Subordinated Trustee are sometimes referred to
herein individually as a "Trustee" and collectively as the
"Trustees". The statements under this caption relating to the Debt
Securities and the Indentures are summaries only and do not purport
to be complete. Such summaries make use of terms defined in the
Indentures. Wherever such terms are used herein or particular
provisions of the Indentures are referred to, such terms or
provisions, as the case may be, are incorporated by reference as
part of the statements made herein, and such statements are
qualified in their entirety by such reference. Certain defined
terms in the Indentures are capitalized herein. The references
below apply to the section numbers in each of the Indentures,
unless otherwise indicated. Both the Senior Indenture and the
Subordinated Indenture, and the Securities issued thereunder, are
governed by Texas law.
Provisions Applicable to Both Senior and Subordinated Debt
Securities
General. The Indentures do not limit the aggregate principal
amount of the Debt Securities issuable thereunder or of any
particular series of the Debt Securities and provide that Debt
Securities may be issued thereunder from time to time in one or
more series with the same or various maturities at par, at a
premium or at a discount. Offered Debt Securities bearing no
interest or interest at a rate which at the time of issuance is
below market rate ("Original Issue Discount Securities") will be
sold at a discount (which may be substantial) from their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount
Securities will be described in the Prospectus Supplement relating
thereto.
Reference is made to the Prospectus Supplement for the following
terms of the Offered Debt Securities: (i) the title and the limit
on the aggregate principal amount of Offered Debt Securities; (ii)
the percentage of their principal amount at which the Offered Debt
Securities will be sold; (iii) the date or dates on which the
principal of (and premium, if any, on) the Offered Debt Securities
will be payable; (iv) the rate or rates (which may be fixed or
variable) per annum, if any, at which the Offered Debt Securities
will bear interest or the method of determining such rate or rates;
(v) the date or dates from which such interest, if any, shall
accrue the date or dates on which such interest, if any, will be
payable and the regular record date for interest payable on any
payment date; (vi) the place or places where the principal of (and
premium, if any) and interest, if any, on the Offered Debt
Securities will be payable; (vii) the terms for redemption or early
payment, if any, including any mandatory or optional sinking fund
or analogous provision; (viii) the principal amount of any Offered
Debt Securities that are Original Issue Discount Securities, which
would be payable upon declaration of acceleration of the maturity
of the Offered Debt Securities; (ix) any modifications of the
Events of Default or covenants of the Company contained in the
Indenture pertaining to the Offered Debt Securities; (x)
information with respect to book-entry procedures, if any; (xi) as
to Subordinated Debt Securities only, whether the offered
Subordinated Debt Securities are convertible into Common Stock of
the Company and, if so, the initial conversion price; and (xii) any
other terms of the Offered Debt Securities not inconsistent with
the Indenture under which they are issued. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating
thereto, principal of and any premium and interest on the Offered
Debt Securities will be payable, and the Offered Debt Securities
will be exchangeable and transfer thereof will be registrable, at
the corporate trust office of the Trustee or at the office of each
paying agent, if any, identified in the Prospectus Supplement with
respect to the Offered Debt Securities; provided that, at the
option of the Company, payment of any interest may be made by check
mailed to the address of the Person entitled thereto as it appears
in the Security Register. The Corporate Trust Office of the Senior
Trustee is located at 712 Main Street, Houston, Texas 77002, and
the Corporate Trust Office of the Subordinated Trustee is located
at 700 Louisiana Street, Houston, Texas 77002. (Sections 301, 305
and 1002)
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Offered Debt Securities will be issued in only fully
registered form without coupons in denominations of $1,000 or any
integral multiple thereof, and no service charge will be made for
any transfer or exchange of such Offered Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
(Sections 302 and 305)
Global Securities. The Offered Debt Securities of a series may be
issued in whole or in part in the form of one or more global
securities ("Global Securities") that will be issued to and
registered in the name of the depositary (the "Depositary")
identified in the Prospectus Supplement, or its nominee, relating
to such series. Global Securities may be issued only in fully-
registered form and in either temporary or permanent form. Unless
and until a Global Security is exchanged in whole or in part for
the individual Debt Securities represented thereby, such Global
Security may not be transferred except as a whole by the Depositary
to its nominee or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary or nominee
of such successor Depositary. (Section 305)
The specific terms of the depositary arrangement with respect to a
series of Offered Debt Securities will be described in the
Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will generally apply to
depositary arrangements.
Upon the issuance of a Global Security, the Depositary or its
nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of
persons that have accounts with the Depositary. Such accounts
shall be designated by the dealers, underwriters or agents with
respect to such Debt Securities or by the Company if such Debt
Securities are offered and sold directly by the Company. Ownership
of beneficial interests in a Global Security will be limited to
persons that have accounts with the Depositary ("Participants") or
persons that may hold interests through Participants. Ownership of
beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through,
records maintained by the Depositary or its nominee (with respect
to interests of Participants) and the records of Participants (with
respect to interests of persons other than Participants). The laws
of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the Depositary or its nominee is the registered owner of
a Global Security, such registered owner will be considered the
sole owner or holder of the Debt Securities represented by such
Global Security for all purposes under the Indenture. Except as
provided below, owners of beneficial interests in a Global Security
will not be entitled to have any of the individual Debt Securities
represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such
Debt Securities in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payments of principal of and premium, if any, and interest, if any,
on Debt Securities represented by a Global Security registered in
the name of the Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered
owner of the Global Security representing such Debt Securities.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising
or reviewing any records relating to such beneficial ownership
interests.
The Company expects the Depositary or its nominee, immediately upon
receipt of any payment of principal, premium or interest in respect
of a Global Security, will credit Participants' accounts with
payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown
on the records of the Depositary or its nominee. The Company also
expects that payments by Participants to owners of beneficial
interests in such Global Security held through such Participants
will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name". Such
payments will be the sole responsibility of such Participants. The
Company has no control over the practices of the Depositary or the
Participants and there can be no assurance that these practices
will not be changed.
If the Depositary for a series of Debt Securities is at any time
unwilling, unable or ineligible to continue as depositary and a
successor depositary is not appointed by the Company within 90
days, the Company will issue individual Debt Securities of such
series in exchange for the Global Security representing such series
of Debt Securities. In addition, the Company may at any time and
in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine
not to have any Debt Securities of a series represented by one or
more Global Securities and, in such event, will issue individual
Debt Securities of such series in exchange for the Global Security
representing such series of Debt Securities. Further, if there
shall have occurred and be continuing an Event of Default, or an
event which, with the giving of notice or lapse of time, or both,
would constitute an Event of Default with respect to any series of
Debt Securities represented by a Global Security, such Global
Security shall be exchangeable for individual Debt Securities of
such series. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to a physical
delivery of individual Debt Securities of the series represented by
such Global Security equal in principal amount to such beneficial
interest and to have such Debt Securities registered in its name.
Individual Debt Securities of such series so issued will be issued
in denominations, unless otherwise specified by the Company, of
$1,000 and integral multiples thereof.
Consolidation, Merger and Sale of Assets. Each Indenture provides
that the Company, without the consent of the holders of any of the
outstanding Debt Securities, may consolidate with or merge into any
other corporation or transfer or lease its assets substantially as
an entirety to any Person or may acquire or lease the assets of any
Person substantially as an entirety or may permit any corporation
to merge into the Company provided that (i) the successor is a
corporation organized under the laws of any domestic jurisdiction;
(ii) the successor corporation, if other than the Company, assumes
the Company's obligations under the Indenture and the Debt
Securities issued thereunder; (iii) after giving effect to the
transaction, no Event of Default and no event which, after notice
or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing; and (iv) certain other conditions
are met. (Section 801)
Modification of the Indentures. Each Indenture provides that the
Company and the Trustee may, without the consent of any holders of
Debt Securities, enter into supplemental indentures for the
purposes, among other things, of adding to the Company's covenants,
adding additional Events of Default, establishing the form or terms
of Debt Securities, curing ambiguities or inconsistencies in the
Indenture or making any other provisions with respect to matters
arising under the Indenture if such action shall not adversely
affect the interests of the holders of any series of Debt
Securities in any material respect or to change or eliminate any of
the provisions of the Indenture with respect to a series of Debt
Securities if such series is not then outstanding. (Section 901)
Each Indenture also contains provisions permitting the Company,
with the consent of the holders of not less than a majority in
principal amount of the outstanding Debt Securities of the affected
series, to execute supplemental indentures adding any provisions to
or changing or eliminating any of the provisions of the Indenture
or modifying the rights of the holders of the Debt Securities of
such series, except that no such supplemental indenture may,
without the consent of the holders of all of the outstanding Debt
Securities affected thereby, among other things: (i) change the
maturity of the principal of or any installment of principal or
interest on any of the Debt Securities; (ii) reduce the principal
amount thereof or the rate of interest, if any, thereon or any
premium payable on the redemption thereof; (iii) reduce the amount
of the principal of Original Issue Discount Securities payable on
any date; (iv) change the place of payment where, or the coin or
currency in which, any of the Debt Securities or any premium or
interest thereon is payable; (v) impair the right to institute suit
for the enforcement of any such payment on or after the applicable
maturity date; (vi) reduce the percentage in principal amount of
the Debt Securities of any outstanding series the consent of the
holders of which is required for any such supplemental indenture or
for any waiver of compliance with certain provisions of, or of
certain defaults under, the Indenture; (vii) as to the Subordinated
Indenture only, adversely affect the right to convert the
Subordinated Debt Securities (if convertible) or modify the
subordination provisions of the Subordinated Indenture in a manner
adverse to the holders of Subordinated Debt Securities; or (viii)
with certain exceptions, modify the foregoing requirements.
(Section 902)
Events of Default, Notice and Waiver. Unless otherwise indicated
in the Prospectus Supplement relating to a particular series of
Debt Securities, an Event of Default in respect to any series of
Debt Securities is defined in each Indenture to be a (i) default
for 30 days in the payment of any installment of interest upon any
of the Debt Securities of such series when due; (ii) default in the
payment of principal of (or premium, if any, on) any of the Debt
Securities of such series when due; (iii) default in the making or
satisfaction of any sinking fund payment when the same becomes due
by the terms of the Debt Securities of such series; (iv) default by
the Company in the performance, or breach, of any of its other
covenants in the Indenture which shall not have been remedied for
a period of 60 days after notice by the Trustee or the holders of
at least 25% in principal amount of the Debt Securities of such
series; (v) certain events of bankruptcy, insolvency or
reorganization of the Company; and (vi) such other events as may be
specified for each series. (Section 501)
A default under other indebtedness of the Company or any of its
subsidiaries will not be a default under either Indenture, and an
Event of Default under one series of Debt Securities will not
necessarily be an Event of Default under another series of Debt
Securities issued under the same Indenture.
Each Indenture provides that if an Event of Default specified
therein with respect to any outstanding series of Debt Securities
issued thereunder shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of
the Debt Securities of such series may declare the principal (or,
if the Debt Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be
specified by the terms of such series) of all of the Debt
Securities of such series to be immediately due and payable. Such
declaration may be rescinded if certain conditions are satisfied.
(Section 502)
Each Indenture also provides that the holders of not less than a
majority in principal amount of the Debt Securities of any
outstanding series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of such series, provided that the
Trustee may take any other proper action not inconsistent with such
direction and may decline to act if such direction is contrary to
law or to the Indenture or would involve the Trustee in personal
liability. (Section 512)
In addition, each Indenture also provides that the holders of not
less than a majority in principal amount of the Debt Securities of
any outstanding series thereunder may on behalf of the holders of
all of the Debt Securities of such series waive any past default
with respect to such series and its consequences, except a default
(i) in the payment of the principal of (or premium, if any) or
interest on any of the Debt Securities of such series or (ii) in
respect of a covenant or provision of the Indenture which, under
the terms thereof, cannot be modified or amended without the
consent of the holders of all of the Debt Securities of such
series. (Section 513)
Each Indenture contains provisions entitling the Trustee, subject
to the duty of the Trustee during an Event of Default in respect of
any series of Debt Securities issued thereunder to act with the
required standard of care, to be indemnified by the holders of the
Debt Securities of such series before proceeding to exercise any
right or power under the Indenture at the request of the holders of
the Debt Securities of such series. (Sections 601 and 603)
Each Indenture also provides that the Trustee will, within 90 days
after the occurrence of a default in respect of any series of Debt
Securities issued thereunder give to the holders of the Debt
Securities of such series notice of all uncured and unwaived
defaults known to it; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if
any), or interest on, or any sinking fund installment with respect
to, any Debt Securities of such series, the Trustee will be
protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interest of the
holders of the Debt Securities of such series; and provided
further, that such notice shall not be given until at least 30 days
after the occurrence of an Event of Default regarding the
performance or breach of any covenant or warranty of the Company
under the Indenture other than for the payment of the principal of
(or premium, if any) or interest on, or any sinking fund
installment with respect to, any of the Debt Securities of such
series. The term default for the foregoing purpose only means any
event which is, or after notice or lapse of time, or both, would
become, an Event of Default with respect to the Debt Securities of
such series. (Section 602)
Each Indenture requires the Company to file annually with the
Trustee a certificate, executed by an officer of the Company,
indicating whether the Company has fulfilled all of its obligations
or is in default under certain covenants under the Indenture.
(Section 1004)
Provisions Applicable to Senior Debt Securities
General. The Senior Debt Securities will be unsecured obligations
of the Company issued under the Senior Indenture and will rank on
a parity with all other unsecured and unsubordinated indebtedness
of the Company.
Limitations on Liens. The Senior Indenture does not contain any
covenant restricting the amount of indebtedness which may be
incurred by the Company or any of its Subsidiaries. The Senior
Indenture, however, provides, in general, that except as provided
in this and in the following paragraph, the Company will not, and
will not permit any Restricted Subsidiary to, issue, assume or
guarantee any Debt secured by a Lien upon any Principal Property of
the Company or any Restricted Subsidiary or upon any shares of
stock or Debt of any Restricted Subsidiary (whether such Principal
Property, shares of stock or Debt are now owned or hereafter
acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guaranty of any such
Debt that the Senior Debt Securities (together with, if the Company
shall so determine, any other indebtedness of or guaranty by the
Company or such Restricted Subsidiary then existing or thereafter
created which is not subordinate to the Senior Debt Securities)
shall be secured equally and ratably with (or, at the option of the
Company, prior to) such Debt, so long as such Debt shall be so
secured; provided, however, that the foregoing restrictions shall
not apply to Debt secured by: (1) Liens on property, shares of
stock or indebtedness of any corporation existing at the time such
corporation becomes a Restricted Subsidiary; (2) Liens on any
property (including shares of stock or Debt) existing at the time
of acquisition thereof or securing the payment of all or any part
of the purchase price or construction cost thereof or securing any
Debt incurred prior to, at the time of or within 180 days after,
the acquisition of such property or the completion of any such
construction for the purpose of financing all or any part of the
purchase price or construction cost thereof; (3) Liens on any
property to secure all or any part of the cost of development,
operation, construction, alteration, repair or improvement of all
or any part of such property, or to secure Debt incurred prior to,
at the time of or within 180 days after, the completion of such
development, operation, construction, alteration, repair or
improvement for the purpose of financing all or any part of such
cost; (4) Liens which secure Debt owing by a Restricted Subsidiary
to the Company or to another Restricted Subsidiary or by the
Company to a Restricted Subsidiary; (5) Liens securing indebtedness
of a corporation which becomes a successor of the Company by reason
of a consolidation, merger or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an
entirety; (6) Liens on property of the Company or a Restricted
Subsidiary in favor of governmental authorities to secure partial,
progress, advance or other payments or to secure any indebtedness
incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject
to such Liens, or in favor of any trustee or mortgagee for the
benefit of holders of indebtedness of any such entity incurred for
any such purpose; (7) Liens incurred in connection with pollution
control, sewage or solid waste disposal, industrial revenue or
similar financing; (8) Liens existing at January 15, 1985; and (9)
any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (1) to (8), inclusive, or of
any Debt secured thereby; provided that such extension, renewal or
replacement Lien shall be limited to all or any part of the same
property that secured the Lien extended, renewed or replaced (plus
any improvements on such property) and shall secure no larger
amount of Debt than that existing at the time of such extension,
renewal or replacement. (Section 1005)
The Company and any one or more Restricted Subsidiaries may issue,
assume or guarantee Debt secured by a Lien which would otherwise be
subject to the foregoing restrictions if at the time it does so
(the "Incurrence Time") such Debt plus all other Debt of the
Company and its Restricted Subsidiaries secured by a Lien which
would otherwise be subject to the foregoing restrictions (not
including Debt permitted to be secured as described in clauses (1)
through (9) in the preceding paragraph), plus the aggregate
Attributable Debt (determined as of the Incurrence Time) of Sale
and Leaseback Transactions (other than Sale and Leaseback
Transactions described in clauses (a) and (b) of the first
paragraph under the caption "Limitation on Sale and Leaseback
Transactions" herein) entered into after January 15, 1985 and in
existence at the Incurrence Time (less the aggregate amount of
proceeds of such Sale and Leaseback Transactions which shall have
been applied as described in clause (d) of the first paragraph
under the caption "Limitation on Sale and Leaseback Transactions"
herein), does not exceed 10% of the Consolidated Net Tangible
Assets. (Section 1005)
Limitation on Sale and Leaseback Transactions. The Senior
Indenture provides, in general, that the Company will not itself,
and will not permit any Restricted Subsidiary to, enter into any
arrangements with any bank, insurance company or other lender or
investor (other than the Company or another Restricted Subsidiary)
providing for the leasing as lessee by the Company or any such
Restricted Subsidiary of any Principal Property (except a lease for
a temporary period not to exceed three years by the end of which it
is intended the use of such Principal Property by the lessee will
be discontinued), which was or is owned by the Company or a
Restricted Subsidiary and which has been or is to be sold or
transferred by the Company or a Restricted Subsidiary, more than
180 days after the completion of construction and commencement of
full operation thereof by the Company or such Restricted
Subsidiary, to such lender or investor or to any person to whom
funds have been or are to be advanced by such lender or investor on
the security of such Principal Property (herein called a "Sale and
Leaseback Transaction") unless: (a) the Company or such Restricted
Subsidiary would (at the time of entering into such arrangement) be
entitled, as described in clauses (1) through (9) of the first
paragraph under the caption "Limitations on Liens" herein, without
equally and ratably securing the Senior Debt Securities, to issue,
assume or guarantee indebtedness secured by a Lien on such
Principal Property, or (b) such Sale and Leaseback Transaction
relates to a landfill or other waste disposal site (excluding any
plant or similar facility located thereon) owned by the Company or
such Restricted Subsidiary or which the Company or such Restricted
Subsidiary has the right to use, or (c) the Attributable Debt of
the Company and its Restricted Subsidiaries in respect of such Sale
and Leaseback Transaction and all other Sale and Leaseback
Transactions entered into after January 15, 1985 (other than such
Sale and Leaseback Transactions as are referred to in clauses (a),
(b) or (d) of this paragraph), plus the aggregate principal amount
of Debt secured by Liens on Principal Properties then outstanding
(excluding any such Debt secured by Liens described in clauses (1)
through (9) of the first paragraph under the caption "Limitations
on Liens" herein) which do not equally and ratably secure the
Senior Debt Securities, would not exceed 10% of Consolidated Net
Tangible Assets or (d) the Company, within 180 days after the sale
or transfer, applies or causes a Restricted Subsidiary to apply
(subject to certain reductions described in the Senior Indenture)
an amount equal to the greater of the net proceeds of such sale or
transfer or fair market value of the Principal Property so sold and
leased back at the time of entering into such Sale and Leaseback
Transaction to the retirement of Senior Debt Securities or other
indebtedness of the Company (other than indebtedness subordinated
to the Senior Debt Securities) or indebtedness of a Restricted
Subsidiary, for money borrowed, having a stated maturity more than
12 months from the date of such application or which is extendible
at the option of the obligor thereon to a date more than 12 months
from the date of such application. (Section 1006)
Definitions. Certain terms used in the above described
restrictions are given the following definitions in Section 101 of
the Senior Indenture:
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of any particular time, the present value (discounted at
the rate of interest implicit in the terms of the lease involved in
such Sale and Leaseback Transaction, as determined in good faith by
the Company) of the obligation of the lessee thereunder for net
rental payments (excluding, however, any amounts required to be
paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates and similar charges or
any amounts required to be paid by such lessee thereunder
contingent upon monetary inflation or the amount of sales,
maintenance and repairs, insurance, taxes, assessments, water rates
or similar charges) during the remaining term of such lease
(including any period for which such lease has been extended or
may, at the option of the lessor, be extended).
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible
items) after deducting therefrom (a) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and
other like intangibles and (b) all current liabilities, all as
reflected in the Company's latest audited consolidated balance
sheet contained in the Company's most recent annual report to its
stockholders prior to the time as of which "Consolidated Net
Tangible Assets" shall be determined.
"Debt" means indebtedness for borrowed money.
"Lien" means any mortgage, pledge, security interest, lien or other
encumbrance.
"Principal Property" means any waste processing, waste disposal or
resource recovery plant or similar facility located within the
United States of America (other than its territories and
possessions and Puerto Rico) and owned by, or leased to, the
Company or any Restricted Subsidiary, except (a) any such plant or
facility (i) owned or leased jointly or in common with one or more
persons other than the Company and its Subsidiaries, in which the
interest of the Company and its Restricted Subsidiaries does not
exceed 50%, or (ii) which the Board of Directors determines in good
faith is not of material importance to the total business
conducted, or assets owned, by the Company and its Subsidiaries as
an entirety, or (b) any portion of any such plant or facility which
the Board of Directors determines in good faith not to be of
material importance to the use or operation thereof.
"Restricted Subsidiary" means any Subsidiary substantially all the
property of which is located, or substantially all the business of
which is carried on, within the United States of America (excluding
its territories and possessions and Puerto Rico).
"Subsidiary" means any corporation of which the Company directly or
indirectly owns or controls stock which under ordinary
circumstances (not dependent upon the happening of a contingency)
has voting power to elect a majority of the board of directors of
such corporation.
Defeasance. If so provided in the Prospectus Supplement
accompanying the Offered Senior Debt Securities, the Company may
discharge its indebtedness and its obligations under the Senior
Indenture with respect to such series by depositing funds or
obligations issued or guaranteed by the United States of America
with the Senior Trustee. The Prospectus Supplement will more fully
describe the provisions, if any, relating to such discharge.
(Section 403)
Regarding the Senior Trustee. The Senior Trustee is a lending bank
under an unsecured variable interest rate bank credit agreement
with the Company. The Company has and may from time to time in the
future have other banking relationships with the Senior Trustee in
the ordinary course of business.
Provisions Applicable to Subordinated Debt Securities
General. The Subordinated Debt Securities will be unsecured
obligations of the Company to be issued under the Subordinated
Indenture, and will be subordinate in right of payment to certain
other indebtedness of the Company as described under
"Subordination".
Subordination. The Subordinated Debt Securities will be
subordinate and junior in right of payment, as set forth in the
Subordinated Indenture, to the prior payment in full of all Senior
Debt of the Company. "Senior Debt" is defined in the Subordinated
Indenture as the principal of (and premium, if any) and interest on
any indebtedness, whether outstanding at the date of the
Subordinated Indenture or thereafter created or incurred, which is
for (a) money borrowed by the Company, (b) obligations of the
Company evidencing the purchase price for acquisitions by the
Company or a subsidiary other than in the ordinary course of
business, (c) money borrowed by others and assumed or guaranteed by
the Company, (d) capitalized lease obligations of the Company, (e)
obligations under performance guarantees, support agreements and
other agreements in the nature thereof relating to the obligations
of any subsidiary of the Company with respect to waste-to-energy
facilities and (f) renewals, extensions, refundings, amendments and
modifications of any indebtedness, of the kind described in the
foregoing clauses (a), (b), (c), (d) and (e) or of the instruments
creating or evidencing such indebtedness, unless, in each case, by
the terms of the instrument creating or evidencing such
indebtedness or such renewal, extension, refunding, amendment and
modification, it is provided that such indebtedness is not senior
in right of payment to the Subordinated Debt Securities. (Section
1311)
In the event of any distribution of assets of the Company upon its
dissolution, winding up, liquidation or reorganization, the holders
of Senior Debt shall first be paid in full in respect of principal,
premium (if any) and interest before any such payments are made on
account of the Subordinated Debt Securities. In addition, in the
event that (a) the Subordinated Debt Securities or any other debt
securities issued under the Subordinated Indenture are declared due
and payable because of an Event of Default (other than under the
circumstances described in the preceding sentence) or (b) any
default by the Company has occurred and is continuing in the
payment of principal, premium (if any), sinking funds or interest
on any Senior Debt, then no payment shall be made on account of
principal, premium (if any), sinking funds or interest on the
Subordinated Debt Securities until all such payments due in respect
of such Senior Debt have been paid full. (Sections 1301 and 1304)
By reason of such subordination, creditors of the Company who are
not holders of Senior Debt may, subject to any subordination
provisions that may be applicable to such creditors, recover more
ratably than holders of the Subordinated Debt Securities.
As of September 30, 1993, the Company had outstanding approximately
$430 million principal amount of indebtedness which would
constitute "Senior Debt". The Company also has unused lines of
credit for up to a maximum of $1 billion at January 11, 1994. The
amount of Senior Debt may change in the future, and the
Subordinated Indenture contains no limitations on the incurrence of
Senior Debt.
Conversion. The Subordinated Indenture provides that a series of
Subordinated Debt Securities may be convertible into Common Stock.
The following provisions will apply to convertible Subordinated
Debt Securities unless otherwise provided in the Prospectus
Supplement for such series of Subordinated Debt Securities.
The holder of any convertible Subordinated Debt Securities will
have the right, exercisable at any time prior to maturity, subject
to prior redemption by the Company, to convert any portion of such
Subordinated Debt Securities that is $1,000 in principal amount or
any integral multiple thereof, into shares of Common Stock at the
conversion price or conversion rate set forth in the Prospectus
Supplement, subject to adjustment.
In certain events, the conversion price or conversion rate will be
subject to adjustment as set forth in the Subordinated Indenture.
Such events include the issuance of shares of Common Stock as a
dividend or distribution on the Common Stock; subdivisions,
combinations and reclassifications of the Common Stock; the fixing
of a record date for the issuance to all holders of Common Stock of
rights or warrants entitling the holders thereof (for a period
expiring within 45 days of the record date) to subscribe for or
purchase shares of Common Stock at a price per share less than the
then current market price per share of Common Stock (as determined
pursuant to the Subordinated Indenture); and the fixing of a record
date for the distribution to all holders of Common Stock of
evidences of indebtedness or assets (excluding cash dividends paid
from surplus) of the Company or subscription rights or warrants
(other than those referred to above). No adjustment of the
conversion price or conversion rate will be required unless an
adjustment would require a cumulative increase or decrease of at
least 1% in such price or rate. (Section 1404)
Fractional shares of Common Stock will not be issued upon
conversion, but, in lieu thereof, the Company will pay a cash
adjustment based on the then current market price for the Common
Stock. Upon conversion, no adjustments will be made for accrued
interest or dividends, and, accordingly, convertible Subordinated
Debt Securities surrendered for conversion between the record date
for an interest payment and the interest payment date (except
convertible Subordinated Debt Securities called for redemption on
a redemption date during such period) must be accompanied by
payment of an amount equal to the interest thereon which the
registered holder is to receive. (Sections 1403 and 1405)
In the case of any reclassification or change in the outstanding
shares of Common Stock, any consolidation or merger of the Company
(with certain exceptions) or any conveyance, transfer or lease of
the property and assets of the Company substantially as an
entirety, the holder of convertible Subordinated Debt Securities,
after the consolidation, merger, conveyance, transfer or lease,
will have the right to convert such convertible Subordinated Debt
Securities into the kind and amount of securities, cash and other
property which the holder would have been entitled to receive upon
or in connection with such consolidation, merger, conveyance,
transfer or lease, if the holder had held the Common Stock issuable
upon conversion of such convertible Subordinated Debt Securities
immediately prior to such consolidation, merger, conveyance,
transfer or lease. (Section 1406)
Regarding the Subordinated Trustee. The Subordinated Trustee is a
lending bank under an unsecured variable interest rate bank credit
agreement with the Company. The Company has and may from time to
time in the future have other banking relationships with the
Subordinated Trustee in the ordinary course of business.
CAPITAL STOCK
Pursuant to its Restated Certificate of Incorporation, the Company
is authorized to issue (i) 400,000,000 shares of Common Stock, $.16
2/3 par value and (ii) 25,000,000 shares of Preferred Stock,
without par value, of which 4,000,000 shares have been designated
by the Board of Directors as Series A Participating Preferred Stock
which may be issued upon the exercise of Rights (hereinafter
defined) associated with the Common Stock as discussed below.
On June 1, 1988, the Board of Directors of the Company declared a
dividend distribution of one right (a "Right") on each share of
Common Stock outstanding at the close of business on June 13, 1988,
and in connection therewith entered into a Rights Agreement, dated
as of June 1, 1988 (as amended, the "Rights Agreement") with Texas
Commerce Bank National Association (subsequently succeeded by First
Chicago Trust Company of New York) as Rights Agent. In addition,
the Board authorized the issuance of one Right with respect to each
share of Common Stock that becomes outstanding between June 13,
1988 and the earliest of the dates on which separate Right
certificates are distributed or the Rights expire or are redeemed.
The Rights distribution was not taxable to stockholders.
When exercisable, each Right will entitle the registered holder to
purchase one one-hundredth of a share of Series A Participating
Preferred Stock at an exercise price of $110.00, subject to
adjustment. The Rights will not be exercisable prior to the
expiration of the Company's right to redeem the Rights. The
Company is entitled to redeem the Rights at $.05 per Right (subject
to adjustment) up to and including the tenth business day
(twentieth business day if the Board of Directors so determines)
after the acquisition by a person of beneficial ownership of shares
of the Company's stock having 10% or more of the general voting
power of the Company. The Rights will expire on June 13, 1998,
unless earlier redeemed.
In general, the Rights Agreement provides that if the Company is
acquired in a merger or other business combination transaction on
or at any time after the date on which a person obtains ownership
of stock having 10% more of the Company's general voting power
("Stock Acquisition Date"), provision must be made prior to the
consummation of such transaction to entitle each holder of a Right
(except as provided in the Plan) to purchase at the exercise price
a number of the acquiring company's common shares having a market
value (determined as provided in the Rights Agreement) at the time
of such transaction of two times the exercise price of the Right.
The Rights Agreement also provides that in the event of (i) the
acquisition of the Company on or at any time after the Stock
Acquisition Date in a merger or other business combination
transaction in which the Company's Common Stock remains outstanding
and unchanged, (ii) certain self-dealing transactions by a 10% or
greater stockholder, (iii) the acquisition by a person of at least
15% of the general voting power of the Company or (iv) an increase
in the ownership interest of a 10% or greater stockholder by more
than 1% as a result of the occurrence of any of certain events
specified in the Rights Agreement, then, in each such case, each
holder of a Right (except as provided in the Rights Agreement) will
have the right to receive, upon payment of the exercise price, a
number of shares of Series A Participating Preferred Stock having
a market value (determined as provided in the Rights Agreement) at
the time of such transaction of two times the exercise price of a
Right.
Certain provisions in the Company's Restated Certificate of
Incorporation and By-laws may have the effect of delaying,
deferring or preventing a change in control of the Company. These
provisions require that the Company's Board of Directors be divided
into three classes that are elected for staggered three-year terms;
provide that stockholders may act only at annual or special
meetings and may not act by written consent; provide that special
meetings of stockholders may be called only by the Board of
Directors; authorize the directors of the Company to determine the
size of the Board of Directors; require that stockholder
nominations for directors be made to the Nominating Committee of
the Company prior to a meeting of stockholders; provide that
directors may be removed only for cause and only by a supermajority
vote (80% of shares outstanding) of the stockholders (a
"Supermajority Vote"), including a majority in interest of the
holders ("Minority Holders") of voting stock held by persons other
than any person who, together with its affiliates and associates,
owns more than 10% of the voting stock; provide for certain minimum
price and procedural requirements in connection with certain
business combinations, in the absence of which the business
combination would require approval by a Supermajority Vote,
including a majority in interest of the Minority Holders; require
a Supermajority Vote, including a majority in interest of the
Minority Holders, for the amendment of any of the foregoing
provisions unless approved by a majority of the Board of Directors
in certain events; and authorize the Board of Directors to
establish one or more series of Preferred Stock, without any
further stockholder approval, having rights, preferences,
privileges and limitations that could impede or discourage the
acquisition of control of the Company.
Description of Common Stock. At December 31, 1993, 174,402,335
shares of Common Stock were issued and outstanding and 34,300,722
shares were reserved for issuance (i) pursuant to the Company's
Dividend Reinvestment Plan and employee benefit plans (including
stock option plans), (ii) upon conversion of debentures, and (iii)
in connection with the acquisition of businesses and properties in
the normal course of business. Subject to the dividend preferences
of any outstanding shares of Preferred Stock, all shares of Common
Stock are entitled to participate in such dividends as may be
declared by the Board of Directors out of assets available for such
payment. Holders of Common Stock are entitled to one vote for each
share held. All outstanding shares are, and shares issuable
hereunder will be, validly issued, fully paid and nonassessable.
Holders of Common Stock have no cumulative voting rights or
preemptive rights. In the event of a liquidation, dissolution or
winding up of the Company, holders of Common Stock are entitled to
share ratably in the distribution of assets remaining after payment
of debts and expenses and of any preference due to holders of any
preferred stock of the Company then outstanding. As described
above, one Right will be issued in respect of each share of Common
Stock issued before the earliest of the dates on which separate
Right certificates are distributed or the Rights expire or are
redeemed.
The Common Stock Transfer Agent and Registrar is First Chicago
Trust Company of New York, Stock Transfer Department, Post Office
Box 3891, Church Street Station, New York, New York 10008.
Description of Preferred Stock. Under the Company's Restated
Certificate of Incorporation, the Board of Directors may provide
for the issuance of up to 25,000,000 shares of Preferred Stock in
one or more series. The rights, preferences, privileges and
restrictions, including liquidation preferences, of the Preferred
Stock of each series will be fixed or designated by the Board of
Directors pursuant to a certificate of designation without any
further vote or action by the Company's stockholders. The issuance
of Preferred Stock could have the effect of delaying, deferring or
preventing a change in control of the Company. Upon issuance
against full payment of the purchase price therefor, shares of
Preferred Stock offered hereby will be fully paid and
nonassessable.
The specific terms of a particular series of Preferred Stock
offered hereby will be described in a Prospectus Supplement
relating to such series and will include the following:
(i) The maximum number of shares to constitute the series and
the distinctive designation thereof;
(ii) The annual dividend rate, if any, on shares of the series,
whether such rate is fixed or variable or both, the date or
dates from which dividends will begin to accrue or
accumulate and whether dividends will be cumulative;
(iii) Whether the shares of the series will be redeemable and, if
so, the price at and the terms and conditions on which the
shares of the series may be redeemed, including the time
during which shares of the series may be redeemed and any
accumulated dividends thereon that the holders of shares of
the series shall be entitled to receive upon the redemption
thereof;
(iv) The liquidation preference, if any, applicable to shares of
the series;
(v) Whether the shares of the series will be subject to
operation of a retirement or sinking fund and, if so, the
extent and manner in which any such fund shall be applied
to the purchase or redemption of the shares of the series
for retirement or for other corporate purposes, and the
terms and provisions relating to the operation of such
fund;
(vi) The terms and conditions, if any, on which the shares of
the series shall be convertible into, or exchangeable for,
shares of any other class or classes of capital stock of
the Company or another corporation or any series of any
other class or classes, or of any other series of the same
class, including the price or prices or the rate or rates
of conversion or exchange and the method, if any, of
adjusting the same;
(vii) The voting rights, if any, on the shares of the series; and
(viii) Any other preferences and relative, participating, optional
or other special rights or qualifications, limitations or
restrictions thereof.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants") and Warrants to purchase Common Stock
or Preferred Stock ("Stock Warrants"). Warrants may be issued
independently of or together with any other Securities and may be
attached to or separate from such Securities. Each series of
Warrants will be issued under a separate Warrant Agreement (each a
"Warrant Agreement") to be entered into between the Company and a
Warrant Agent ("Warrant Agent"). The Warrant Agent will act solely
as an agent of the Company in connection with the Warrant of such
series and will not assume any obligation or relationship of agency
for or with holders or beneficial owners of Warrants. The following
sets forth certain general terms and provisions of the Warrants
offered hereby. Further terms of the Warrants and the applicable
Warrant Agreement will be set forth in the applicable Prospectus
Supplement.
Debt Warrants
The applicable Prospectus Supplement will describe the terms of any
Debt Warrants, including the following: (i) the title of such Debt
Warrants; (ii) the offering price for such Debt Warrants, if any;
(iii) the aggregate number of such Debt Warrants; (iv) the
designation and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants; (v) if applicable, the designation
and terms of the Securities with which such Debt Warrants are
issued and the number of such Debt Warrants issued with each such
Security; (vi) if applicable, the date from and after which such
Debt Warrants and any Securities issued therewith will be
separately transferable; (vii) the principal amount of Debt
Securities purchasable upon exercise of a Debt Warrant and the
price at which such principal amount of Debt Securities may be
purchased upon exercise; (viii) the date on which the right to
exercise such Debt Warrants shall commence and the date on which
such right shall expire; (ix) if applicable, the minimum or maximum
amount of such Debt Warrants that may be exercised at any one time;
(x) whether the Debt Warrants represented by the Debt Warrant
certificates or Debt Securities that may be issued upon exercise of
the Debt Warrants will be issued in registered or bearer form; (xi)
information with respect to book-entry procedures, if any; (xii)
the currency, currencies or currency units in which the offering
price, if any, and the exercise price are payable; (xiii) if
applicable, a discussion of certain United States federal income
tax considerations; (xiv) the antidilution provisions of such Debt
Warrants, if any; (xv) the redemption or call provisions, if any,
applicable to such Debt Warrants; and (xvi) any additional terms of
the Debt Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Debt Warrants.
Stock Warrants
The applicable Prospectus Supplement will describe the terms of any
Stock Warrants, including the following: (i) the title of such
Stock Warrants; (ii) the offering price of such Stock Warrants, if
any; (iii) the aggregate number of such Stock Warrants; (iv) the
designation and terms of the Common Stock or Preferred Stock
purchasable upon exercise of such Stock Warrants; (v) if
applicable, the designation and terms of the Securities with which
such Stock Warrants are issued and the number of such Stock
Warrants issued with each such Security; (vi) if applicable, the
date from and after which such Stock Warrants and any Securities
issued therewith will be separately transferrable; (vii) the number
of shares of Common Stock or Preferred Stock purchasable upon
exercise of a Stock Warrant and the price at which such shares may
be purchased upon exercise; (viii) the date on which the right to
exercise such Stock Warrants shall commence and the date on which
such right shall expire; (ix) if applicable, the minimum or maximum
amount of such Stock Warrants that may be exercised at any one
time; (x) the currency, currencies or currency units in which the
offering price, if any, and the exercise price are payable; (xi) if
applicable, a discussion of certain United States federal income
tax considerations; (xii) the antidilution provisions of such Stock
Warrants, if any; (xiii) the redemption or call provisions, if any,
applicable to such Stock Warrants; and (xiv) any additional terms
of such Stock Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Stock Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in and/or
outside the United States (i) through underwriters or a group of
underwriters or dealers, (ii) through agents designated from time
to time or (iii) directly to purchasers.
If an underwriter or underwriters are utilized in the sale, the
Company will enter into an underwriting agreement with such
underwriters at the time of sale to them, and the names of the
underwriters and the terms and conditions of the transaction
(including underwriting discounts and commissions and other items
constituting underwriting compensation and discounts and
commissions to be allowed or paid to any dealers) will be set forth
in the Prospectus Supplement, which will be used by the
underwriters to make sales of the Offered Securities in respect of
which this Prospectus is delivered to the public. The underwriters
may be entitled, under the underwriting agreement, to
indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act. Only underwriters
named in the Prospectus Supplement are deemed to be underwriting in
connection with the Offered Securities in respect of which such
Prospectus Supplement and this Prospectus are delivered and any
firms not named therein are not parties to the underwriting
agreement in respect of such Offered Securities and will have no
direct or indirect participation in the underwriting thereof,
although they may participate in the distribution of such
Securities under circumstances where they may be entitled to a
dealer's commission.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters to solicit offers by certain institutions to
purchase Offered Securities from the Company at the price set forth
in the Prospectus Supplement pursuant to delayed delivery contracts
for payment and delivery at a future date. The Prospectus
Supplement will set forth the commission payable to the
underwriters for solicitation of such contracts.
Offers to purchase Offered Securities may be solicited directly by
the Company or by agents designated by the Company from time to
time. Unless otherwise indicated in the Prospectus Supplement, any
such agent will be acting on a best efforts basis for the period of
its appointment. Agents may be entitled under agreements which may
be entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the
Securities Act.
If an agent or agents are utilized in the sale, such persons may be
deemed to be "underwriters", and any discounts, commissions or
concessions received by them from the Company or any profit on the
resale of Offered Securities by them may be deemed to be
underwriting discounts and commissions under the Securities Act.
Any such person who may be deemed to be an underwriter and any such
compensation received from the Company will be described in the
Prospectus Supplement.
The time and place for delivery of the Offered Securities in
respect of which this Prospectus is delivered are set forth in the
Prospectus Supplement.
LEGAL OPINIONS
The legality of the Securities to be offered hereby will be passed
upon for the Company by Fulbright & Jaworski L.L.P., 1301 McKinney
Street, Houston, Texas 77010, and for any underwriters or agents of
a particular issue of Offered Securities, by Vinson & Elkins
L.L.P., 1001 Fannin Street, First City Tower, Houston, Texas 77002
or by other counsel identified in the relevant Prospectus
Supplement as passing on the same for any such underwriters and
agents. Vinson & Elkins L.L.P. has represented the Company in
various legal matters from time to time.
EXPERTS
The consolidated financial statements and schedules included in the
Annual Report of the Company on Form 10-K for the year ended
September 30, 1993 incorporated herein by reference, have been
audited by Arthur Andersen & Co., independent public accountants,
as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of
said firm as experts in giving said report.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.*
Securities and Exchange Commission Registration Fee....$ 241,380
Printing and Engraving Expenses........................ 50,000
Accounting Fees and Expenses........................... 100,000
Legal Fees and Expenses................................ 100,000
Trustee Fees........................................... 40,000
Fees of Rating Agencies................................ 170,000
Blue Sky Fees and Expenses............................. 10,000
Miscellaneous.......................................... 28,620
-----------
TOTAL............................................$ 740,000
===========
________
*Estimated, except for the SEC Registration Fee.
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers the Company to, and the By-laws of the Company provide
that it shall, indemnify any person who was or is a party or is
threatened to be made a party to, or otherwise becomes involved in,
any threatened, pending or completed action, suit or proceeding
(other than an action, suit or proceeding by or in the right of the
Company) by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at
the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys's fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful; except
that, in the case of an action or suit by or in the right of the
Company, no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to
be liable to the Company unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine that such person is
fairly and reasonably entitled to indemnity for proper expenses.
The Company's By-laws provide, pursuant to Section 145 of the
General Corporation Law of the State of Delaware, for
indemnification of officers, directors, employees and agents of the
Company and persons serving at the request of the Company in such
capacities for other business organizations against certain losses,
costs, liabilities and expenses incurred by reason of their
positions with the Company or such other business organizations.
The Company's Restated Certificate of Incorporation contains a
provision which eliminates, to the fullest extent permitted by law,
director liability for monetary damages for breaches of fiduciary
duty of care.
At the annual meeting of stockholders held on March 4, 1987, the
Company's stockholders adopted a resolution authorizing the Company
to enter into an Indemnity Agreement (the "Indemnity Agreement")
with each director of the Company and with certain officers of the
Company designated by the Board of Directors or its Executive
Committee. The Indemnity Agreement requires that the Company
indemnify directors and designated officers who are parties thereto
in all cases to the fullest extent permitted by applicable law.
Pursuant to a policy of directors' and officers' liability and
corporation reimbursement insurance, the Company's officers and
directors are insured, subject to the limits, retention, exceptions
and other terms and conditions of such policy, against liability
for any actual or alleged breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or
wrongfully attempted while acting in their capacities as directors
or officers of the Company.
Pursuant to a number of agreements by which the Company acquired
ownership of businesses, the former owners of those businesses
individually agreed to indemnify each officer of the Company, each
person who may be liable as a director of the Company or as a
person who controls or shall have controlled the Company within the
meaning of the Securities Act of 1933, as amended (the "Securities
Act") against certain liabilities that such officers, directors or
controlling persons might incur. Generally, such former owners
have agreed to indemnify such officers, directors or controlling
persons against any and all damages or liabilities to which such
officers, directors or control persons may become subject under the
Securities Act, the Securities Exchange Act of 1934, as amended,
state securities laws, the common law or otherwise, including legal
and other expenses incurred in connection therewith, but only
insofar as such liabilities arise out of or are based upon any
untrue statement or omission or alleged omission based upon
information furnished to the Company by or on behalf of such former
owner for use in certain registration statements filed by the
Company under the Securities Act or upon failure of such former
owner to provide such information.
ITEM 16. Exhibits.
SEC FILE OR
REGISTRATION EXHIBIT
NUMBER NUMBER
------------- -------
1(a) Form of Underwriting Agreement
(for equity securities).
1(b) Form of Underwriting Agreement
(for debt securities).
*4(a) Rights Agreement, dated June 1, 1988, 1-6805 (10-K, 3.3
between the Registrant and Texas Commerce September 10, 1988)
Bank National Association.
*4(b) First Amendment, dated March 1, 1989, to 1-6805 (10-Q, 10.1
Rights Agreement, dated as of June 1, 1988, June 30, 1989)
between the Company and Texas Commerce Bank
National Association.
*4(c) Second Amendment, dated March 7, 1990, to 1-6805 (10-Q, 4.1
Rights Agreement, dated as of June 1, 1988, March 31, 1990)
between the Registrant and First Chicago
Trust Company of New York as successor
Rights Agent.
*4(d) Restated Indenture, dated as of September 1-6805 (10-K, 4.8
1, 1991, between First City, Texas-Houston, September 10, 1991)
National Association, Trustee, and the
Registrant.
*4(e) Indenture, dated as of August 1, 1987, 33-16537 4.1
between First RepublicBank Houston,
National Association, Trustee, and the
Registrant.
4(f) First Supplemental Indenture, dated as of
January 11, 1994, between the Registrant
and NationsBank of Texas, National
Association, as Trustee.
5 Opinion of Fulbright & Jaworski as to
legality of the securities being
registered.
*12 Computation of Ratios of Earnings to Fixed 1-6805 (10-K, 12.1
Charges and Earnings to Fixed Charges. September 30, 1993)
23(a) Consent of Arthur Andersen & Co.
23(b) Consent of Fulbright & Jaworski (included
in their opinion filed as Exhibit 5).
24 Powers of Attorney (included under the
caption "Power of Attorney and
Signatures").
25(a) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act
of 1939 of Texas Commerce Bank National
Association relating to the Senior
Indenture.
25(b) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act
of 1939 of NationsBank of Texas, National
Association relating to the Subordinated
Indenture.
- ------------
* Incorporated by reference.
ITEM 17. Undertakings.
(a) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Company, the Company has been
advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the
securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by a
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by a final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (i) and (ii) above do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 and Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for the filing on
Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized
in the City of Houston, State of Texas, on this 11th of January,
1994.
BROWNING-FERRIS INDUSTRIES, INC.
(Registrant)
By: /s/ William D. Ruckelshaus
------------------------------
William D. Ruckelshaus,
Chairman of the Board,
Chief Executive Officer
and Director
POWER OF ATTORNEY AND SIGNATURES
KNOWN ALL MEN BY THESE presents, that each person whose signature
appears below constitutes and appoints WILLIAM D. RUCKELSHAUS,
JEFFREY E. CURTISS, and RUFUS WALLINGFORD, and each of them, acting
without the others, true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him in his
name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and to make any and all state
securities law or blue sky filings, granting unto said attorney-in-
fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about
the premises, as fully to all intents and purposes as he might or
could do in person, thereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof. Pursuant to the
requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
/s/ William D. Ruckelshaus
------------------------------
William D. Ruckelshaus,
Chairman of the Board,
Chief Executive Officer
and Director
/s/ Bruce E. Ranck
-----------------------------
Bruce E. Ranck,
President, Chief Operating
Officer and Director
/s/ Norman A. Myers
------------------------------
Norman A. Myers, Vice
Chairman, Chief Marketing
Officer and Director
/s/ Jeffrey E. Curtiss
------------------------------
Jeffrey E. Curtiss,
Senior Vice President and
Chief Financial Officer
/s/ David R. Hopkins
------------------------------
David R. Hopkins,
Vice President, Controller and
Chief Accounting Officer
/s/ William T. Butler
------------------------------
William T. Butler,
Director
/s/ C. Jackson Grayson, Jr.
------------------------------
C. Jackson Grayson, Jr.,
Director
/s/ Gerald Grinstein
------------------------------
Gerald Grinstein, Director
/s/ Harry J. Phillips, Sr.
------------------------------
Harry J. Phillips, Sr.,
Director
/s/ Joseph L. Roberts, Jr.
------------------------------
Joseph L. Roberts, Jr.,
Director
/s/ Robert M. Teeter
------------------------------
Robert M. Teeter, Director
/s/ Louis A. Waters
------------------------------
Louis A. Waters, Director
/s/ Marina v.N. Whitman
------------------------------
Marina v.N. Whitman, Director
January 11, 1994. /s/ Peter S. Willmott
------------------------------
Peter S. Willmott, Director
EXHIBIT INDEX
SEC FILE OR
REGISTRATION EXHIBIT
NUMBER NUMBER
------------- -------
1(a) Form of Underwriting Agreement
(for equity securities).
1(b) Form of Underwriting Agreement
(for debt securities).
*4(a) Rights Agreement, dated June 1, 1988, 1-6805 (10-K, 3.3
between the Registrant and Texas Commerce September 10, 1988)
Bank National Association.
*4(b) First Amendment, dated March 1, 1989, to 1-6805 (10-Q, 10.1
Rights Agreement, dated as of June 1, 1988, June 30, 1989)
between the Company and Texas Commerce Bank
National Association.
*4(c) Second Amendment, dated March 7, 1990, to 1-6805 (10-Q, 4.1
Rights Agreement, dated as of June 1, 1988, March 31, 1990)
between the Registrant and First Chicago
Trust Company of New York as successor
Rights Agent.
*4(d) Restated Indenture, dated as of September 1-6805 (10-K, 4.8
1, 1991, between First City, Texas-Houston, September 10, 1991)
National Association, Trustee, and the
Registrant.
*4(e) Indenture, dated as of August 1, 1987, 33-16537 4.1
between First RepublicBank Houston,
National Association, Trustee, and the
Registrant.
4(f) First Supplemental Indenture, dated as of
January 11, 1994, between the Registrant
and NationsBank of Texas, National
Association, as Trustee.
5 Opinion of Fulbright & Jaworski as to
legality of the securities being
registered.
*12 Computation of Ratios of Earnings to Fixed 1-6805 (10-K, 12.1
Charges and Earnings to Fixed Charges. September 30, 1993)
23(a) Consent of Arthur Andersen & Co.
23(b) Consent of Fulbright & Jaworski (included
in their opinion filed as Exhibit 5).
24 Powers of Attorney (included under the
caption "Power of Attorney and
Signatures").
25(a) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act
of 1939 of Texas Commerce Bank National
Association relating to the Senior
Indenture.
25(b) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act
of 1939 of NationsBank of Texas, National
Association relating to the Subordinated
Indenture.
- ------------
* Incorporated by reference.
Registration No. 33-
--------
- ---------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
Browning-Ferris Industries, Inc.
(Exact name of registrant as specified in its charter)
Delaware 74-1673682
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
757 N. Eldridge
Houston, Texas 77079
(713) 870-8100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------------
EXHIBITS
----------------------
- ---------------------------------------------------------------------------
Draft of January 11, 1994
Browning-Ferris Industries, Inc.
Equity Securities
Underwriting Agreement
Browning-Ferris Industries, Inc.
Equity Securities
UNDERWRITING AGREEMENT
-------------------------
______________, 199_
__________________________________
__________________________________
__________________________________
__________________________________
Dear Sirs:
1. Introductory. Browning-Ferris Industries. Inc., a
Delaware corporation (the "Company"), proposes to issue and sell to
the several Underwriters named in Schedule A hereto (the
"Underwriters") a certain number of its shares (the "Firm Shares")
of [Common Stock, $.16-2/3 par value (the "Common Stock")]
[Preferred Stock, without par value (the "Preferred Stock")] as are
specified in Schedule A hereto, and also proposes to grant to the
Underwriters an option, exercisable by the Representatives of the
Underwriters, to purchase a certain number of additional shares
(the "Optional Shares") of the [Common Stock] [Preferred Stock] as
set forth below and in Schedule B. The Firm Shares and the Optional
Shares that may be sold to the Underwriters are herein collectively
called the "Securities." The Company hereby agrees with the
several Underwriters as follows:
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, the several
Underwriters that:
(a) A registration statement (No. 33-_____________),
including a form of prospectus relating to the Company's debt
securities, Preferred Stock and Common Stock and the offering
hereof from time to time in accordance with Rule 415, has been
filed with the Securities and Exchange Commission ("Commission")
under the Securities Act of 1933 (the "1933 Act"). Such
registration statement has been declared effective by the
Commission. A prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof and the other matters
set forth therein has been prepared and will be filed pursuant to
Rule 424 under the 1933 Act. Such prospectus supplement, in the
form first filed after the date hereof pursuant to Rule 424, is
herein referred to as the "Prospectus Supplement." Such
registration statement, as amended at the date hereof, including
the exhibits thereto and the documents incorporated by reference
therein, is herein called the "Registration Statement", and the
basic prospectus included therein relating to all offerings of
securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except
that, if such basic prospectus is amended or supplemented on or
prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the
basic prospectus as so amended or supplemented and as supplemented
by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934 (the "1934 Act"), that are
incorporated by reference herein.
(b) On the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, and on the date of the filing by the
Company of any annual report on Form 10-K after the original filing
of the Registration Statement, if any, the Registration Statement
complied in all material respects with the requirements of the 1933
Act and the rules and regulations of the Commission thereunder (the
"1933 Act Regulations") and did not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statement therein not
misleading; on the date hereof and at the Closing Date (as
hereinafter defined), the Registration Statement, and any
amendments thereof, and the Prospectus, and any amendments thereof
and supplements thereto, comply and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and none of such documents includes or will include an
untrue statement of a material fact or omits or will omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading. The foregoing does not
apply to statements in or omissions from the Registration Statement
or the Prospectus based upon written information furnished to the
Company by any Underwriter through you specifically for use
therein.
(c) There are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
1933 Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the 1933 Act.
3. Purchase, Sale and Delivery of Securities. On the basis
of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule B, the respective numbers
of Firm Shares set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver the Firm Shares to you for the
accounts of the Underwriters, against payment of the purchase price
by certified or official bank check or checks in New York Clearing
House (next day) funds drawn to the order of the Company at the
office of the Company, 757 N. Eldridge, Houston, Texas, at
9:30 A.M., New York time, on the date specified in Schedule B, or
at such other place, date and time not later than seven full
business days thereafter as you and the Company determine, such
time and date being herein referred to as the "First Closing Date."
The certificates for the Firm Shares so to be delivered will be in
definitive form, in such denominations and registered in such names
as you request and will be made available for checking and
packaging at the office specified in Schedule B, at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from you given to the
Company not more than 30 days subsequent to the date of the initial
public offering of the Securities, the Underwriters may purchase
all or less than all of the Optional Shares at the purchase price
per share to be paid for the Firm Shares. The Company agrees to
sell to the Underwriters the number of Optional Shares specified in
such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Shares. Such Optional Shares shall be
purchased for the account of each Underwriter in the same
proportion as the number of Firm Shares set forth opposite such
Underwriter's name bears to the total number of Firm shares
(subject to adjustment by you to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm
Shares. No Optional Shares shall be sold or delivered unless the
Firm Shares previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Shares or any
portion thereof may be surrendered and terminated at any time upon
notice by you on behalf of the Underwriters to the Company.
The time for the delivery of and payment for the Optional
Shares, being herein referred to as the "Second Closing Date,"
which may be the First Closing Date (the First Closing Date and the
Second Closing Date, if any, being sometimes referred to as the
"Closing Date"), shall be determined by you but shall be not
earlier than two nor later than seven business days after written
notice of election to purchase Optional Shares is given. The
Company will deliver the Optional Shares to you for the accounts of
the several Underwriters, against payment of the purchase price
therefor by certified or official bank check or checks in New York
Clearing House (next day) funds drawn to the order of the Company,
at the above office of the Company. The certificates for the
Optional Shares will be in definitive form, in such denominations
and registered in such names as you request upon reasonable notice
prior to the Second Closing Date and will be made available for
checking and packaging at the above office specified in Schedule B,
at a reasonable time in advance of the Second Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to
the public as set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees
with the several Underwriters that:
(a) If specified in Schedule B, the Company shall have
prepared a preliminary prospectus supplement in connection with the
offering of the Securities, containing such information as you and
the Company deem appropriate, and, immediately following the
execution of this Agreement, the Company will prepare a Prospectus
Supplement that complies with the 1933 Act and 1933 Act Regulations
and that sets forth the amount of Securities and their terms, the
name of each Underwriter participating in the offering and the
Securities that each severally has agreed to purchase, the name of
each Underwriter, if any, acting as a representative of the
Underwriters in connection with the offering, the price at which
the Securities are to be purchased by the Underwriters from the
Company, and any initial public offering price, dividend,
convertibility, exchange, sinking fund and liquidation preference
provisions, if any, and such other information as you and the
Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to
Rule 424 under the 1933 Act and will furnish to the Underwriters as
many copies of any preliminary prospectus supplement and the
Prospectus as you request.
(b) The Company will advise you promptly of any proposal
to amend or supplement the registration statement as filed or the
related prospectus or the Registration Statement or the Prospectus
and, except for filings pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), will not effect such amendment
or supplementation without your prior consent (which consent shall
not be unreasonably withheld); and the Company will also advise you
promptly of the effectiveness of any amendment or supplementation
of the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in
respect of the Registration Statement and will use its best efforts
to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued. With respect to filings
under the 1934 Act, the Company will deliver to you a copy of the
proposed filing at least one day prior to the filing date.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the 1933 Act, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the 1933 Act, the Company promptly
will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither your consent
to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the
effective date (as defined in Rule 158 of the 1933 Act Regulations)
which will satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, "Availability Date" means
the 45th day after the end of the fourth fiscal quarter following
the fiscal quarter that includes the Effective Date, except that,
if such fourth fiscal quarter is the last quarter of the Company's
fiscal year, "Availability Date" means the 90th day after the end
of such fourth fiscal quarter.
(e) The Company will furnish to you copies of the
Registration Statement (two of which will be signed and will
include all exhibits), the related preliminary prospectus, the
Prospectus, all documents incorporated by reference in the
Prospectus, and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as you
request.
(f) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions in the
United States and Canada as you designate and will continue such
qualifications in effect so long as required for the distribution.
(g) During the period of five years hereafter, the
Company will furnish to you and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year;
and the Company will furnish to you (i) as soon as available, a
copy of each report or definitive proxy statement of the Company
filed with the Commission under the 1934 Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as you may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Securities for sale under the laws of such
jurisdictions in the United States and Canada as you designate and
the printing of memoranda relating thereto, for the filing fee of
the National Association of Securities Dealers, Inc., if any,
relating to the Securities and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters.
(i) The Company will not, directly or indirectly, offer,
sell, contract to sell or otherwise dispose of, or file with the
Commission a Registration Statement under the Act relating to, any
additional shares of its [Common Stock] [Preferred Stock] or any
security convertible into or exchangeable for [Common Stock]
[Preferred Stock] without your prior written consent for a period
of 90 days after the date of the initial public offering of the
Securities, except issuances upon conversion of convertible
securities outstanding on the date hereof or pursuant to the
Company's Dividend Reinvestment Plan or its employee benefit plans
(including employee stock option plans) existing on the date hereof
or pursuant to the acquisition of any business or properties in the
Company's ongoing acquisition program.
6. Conditions of the Obligations of the Underwriter. The
obligations of the several Underwriters to purchase and pay for the
Firm Shares on the First Closing Date and the Optional Shares on
the Second Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein,
to the accuracy of the statements of Company officers made pursuant
to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions
precedent:
(a) You shall have received a letter, dated the date of
delivery thereof (which shall be on or prior to the date of this
Agreement) of Arthur Andersen & Co. confirming that they are
independent public accountants within the meaning of the Act and
the applicable published 1933 Act Regulations thereunder and
stating in effect that:
(i) in their opinion the financial statements
examined by them and incorporated by reference in the Registration
Statement comply in form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1934 Act
and the related published rules and regulations;
(ii) they have made a review of the unaudited
financial statements included or incorporated by reference in the
Registration Statement in accordance with standards established by
the American Institute of Certified Public Accountants;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements
included or incorporated by reference in the Registration Statement
do not comply in form in all material respects with the applicable
accounting requirements of the 1934 Act and the related published
rules and regulations or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements
incorporated by reference in the Registration Statement;
(B) at the date of the latest available
balance sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the date of this
Agreement, there was any change in the common stock or additional
paid-in capital account or in short-term indebtedness or long-term
debt of the Company and its subsidiaries consolidated or any decrease
in consolidated common stockholders' equity, as compared with amounts
shown on the latest consolidated balance sheet included or incorporated
by reference in the Prospectus; or
(C) for the period from the closing date of
the latest consolidated income statement included or incorporated
by reference in the Prospectus to the closing date of the latest
available consolidated income statement read by such accountants,
or at a subsequent specified date not more than five days prior to
the date of this Agreement, there were any decreases, as compared with
the corresponding period of the previous year, in consolidated revenues,
or in the total or per share amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C)
above for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statement (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Registration Statement for purposes of this
subsection.
(b) At the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company or you, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Company or its
subsidiaries which, in the judgment of a majority in interest of
the Underwriters including you, materially impairs the investment
quality of the Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication
of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including you, the effect
of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(d) You shall have received an opinion, dated such
Closing Date, of Fulbright & Jaworski L.L.P., special counsel to
the Company, to the effect that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Delaware and has the corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement and Prospectus;
(ii) The Securities to be issued and sold by the
Company on such Closing Date have been duly authorized and validly
issued, are fully paid and non-assessable and conform in all
material respects to the description thereof in the Prospectus; and
the stockholders of the Company have no preemptive rights under
Delaware law with respect to such Securities; [the Certificate of
Designation relating to any Securities has been duly authorized,
executed and filed and any shares of Common Stock issuable upon
conversion of the securities have been duly authorized and reserved
for issuance or delivery upon conversion of the Securities by all
necessary corporate actions; and such shares, when issued upon such
conversion as provided in the Certificate of Designation with
respect to the Securities, will be validly issued, fully paid and
nonassessable;]
[(iii) The preferred stock purchase rights (the
"Rights") issued with such Securities have been duly authorized
and, upon issuance of the Securities to be issued and sold by the
Company on such Closing Date, will be validly issued and conform in
all material respects to the description thereof in the
Prospectus];
(iv) The Registration Statement has become effective
under the 1933 Act and, to the best of their knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(v) This Agreement has been duly authorized,
executed and delivered by the Company;
(vi) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company or any direct or indirect subsidiary of the Company under
the Federal laws of the United States, the laws of the States of
New York and Texas and the General Corporation Law of the State of
Delaware, except as may be required under state securities or blue
sky laws, for the issuance, sale and delivery of the Securities by
the Company to the Underwriters on such Closing Date have been
obtained or made and remain in full force and effect;
(vii) The issuance and sale of the Securities by
the Company on such Closing Date pursuant to this Agreement do not
and the execution, delivery and performance by the Company of its
obligations under this Agreement will not, (A) violate the
Company's certificate of incorporation or by-laws, or (B) violate
the General Corporation Law of the State of Delaware, any Federal
law of the United States or law of the State of New York or Texas
applicable to the Company or any direct or indirect subsidiary of
the Company; provided, however, that, for the purposes of this
subparagraph (vii), such counsel need express no opinion with
respect to Federal or state securities laws, anti-fraud laws and
fraudulent transfer laws; and provided, further, that insofar as
performance by the Company of its obligations under this Agreement
is concerned, such counsel need express no opinion as to
bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights;
(viii) Neither the Company nor any of its
subsidiaries is an "investment company," or a company "controlled"
by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended;
(ix) Neither the Company nor any of its subsidiaries
is a "holding company" or a "subsidiary company" of a "holding
company or an "affiliate" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935;
[(x) The descriptions in the Registration Statement
of under "Certain Federal Income Tax Matters" are accurate in all
material respects and present the information required to be shown
in all material respects;]
(xi) The Registration Statement, as of the date
hereof, and the Prospectus, as of the date of the Prospectus, and
any amendment or supplement thereto, as of its date, appeared on
their face to be appropriately responsive to the requirements of
the Act and the applicable rules and regulations of the Commission
thereunder. Such counsel shall also state that nothing which came
to the attention of such counsel in the course of their review of
the Registration Statement has caused them to believe that the
Registration Statement, as of its effective date, or the
Prospectus, as of the date of the Prospectus, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or the Prospectus, as amended or
supplemented on such Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such
opinion shall also state that such counsel do not know of any
documents that are required to be filed as exhibits to the
Registration Statement and are not so filed. Such opinion may
state that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement and Prospectus, except as otherwise
expressly provided in such opinion, and does not express any
opinion or belief as to the financial statements or other financial
or statistical data contained in the Registration Statement and the
Prospectus. In rendering the foregoing opinion or opinions,
Fulbright & Jaworski L.L.P. may state that such opinion or opinions
are limited to the Federal laws of the United States, the laws of
the States of New York and Texas and the General Corporation Law of
the State of Delaware, and that they are expressing no opinion as
to the effect of the laws of any other jurisdiction. In addition,
such counsel may state that they have relied as to certain matters
on information obtained from public officials, officers of the
Company and other sources believed by them to be responsible. In
rendering their opinion in clause (iii) of subsection (d) of this
Section regarding the validity of the Rights, such counsel may note
that the question whether the Board of Directors of the Company
might be required to redeem the Rights at some future time will
depend upon the facts and circumstances existing at that time and,
accordingly, is beyond the scope of such opinion.
(e) You shall have received an opinion or opinions,
dated such Closing Date, of J. Rufus Wallingford, Senior Vice
President and General Counsel of the Company, to the effect that:
(i) Each of the subsidiaries of the Company listed
on Schedule C hereto (the "Principal Subsidiaries") has been duly
incorporated and is an existing corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and
Prospectus;
(ii) Each of the Company and the Principal
Subsidiaries is duly qualified to do business in each jurisdiction
in which the ownership or leasing of its property or the conduct of
its business requires such qualification, except where the failure
to so qualify, considering all such cases in the aggregate, does
not have a material adverse effect on the business, properties,
financial position or results of operations of the Company and its
subsidiaries taken as a whole; and, except as otherwise stated in
the Registration Statement, all of the outstanding shares of
capital stock of each Principal Subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable,
are owned beneficially, directly or indirectly, by the Company and
are not subject to any security interest, other encumbrance or
adverse claim;
(iii) To such counsel's knowledge, the execution
and delivery of this Agreement, the consummation of the
transactions contemplated herein and therein and the compliance by
the Company with any of the provisions hereof or thereof, will not
conflict with, constitute a default under or violate, (A) any
judgment, writ, injunction, decree, order or ruling of any court or
governmental authority binding on the Company or any of its
subsidiaries of which such counsel is aware or (B) any indenture,
mortgage or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which any of them or their
respective property is bound, in either case which is material to
the Company and its subsidiaries taken as a whole;
(iv) Such counsel does not know of any litigation or
any governmental proceeding instituted or threatened against the
Company or any of its subsidiaries that would be required to be
disclosed in the Prospectus and is not so disclosed; and
(v) Such counsel does not know of any contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the 1933 Act with respect to any
securities of the Company owned (or to be owned) by such person or
to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the 1933 Act.
Such counsel shall also state that nothing has come to his
attention that has caused him to believe that the Registration
Statement, as of its effective date, or the Prospectus, as of the
date of the Prospectus, contained any untrue statement of material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
or the Prospectus, as amended or supplemented on the Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. Such counsel shall also state that he does not
know of any documents that are required to be summarized in the
Prospectus that are not so summarized. Such counsel may also state
that he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus and does not express any
opinion or belief as to the financial statements or other financial
or statistical data contained in the Registration Statement and the
Prospectus. In rendering the foregoing opinion or opinions, such
counsel may rely, to the extent recited therein, upon opinions of
local or foreign counsel. Such counsel may also state that he has
relied as to certain factual matters on information obtained from
public officials, officers of the Company and other sources
believed by him to be responsible.
(f) You shall have received from Vinson & Elkins L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other related matters as
you may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(g) You shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties
of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of
the most recent financial statements in the Prospectus, there has been
no material adverse change in the financial position or results of
operation of the Company and its subsidiaries except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(h) You shall have received a letter, dated such Closing
Date, of Arthur Andersen & Co. which meets the requirements of
subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than five
days prior to such Closing Date for the purposes of this
subsection.
The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably
request.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, either of the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged
untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you
specifically for use therein; and provided, further, that with
respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus the
indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased
the Securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Securities to such person,
a copy of the Prospectus (exclusive of material incorporated by
reference) if the Company had previously furnished copies thereof
to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, either of the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such
Underwriter through you specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party-
otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the
parties relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations
and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director
of the Company, to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the
Company within the meaning of the 1933 Act.
8. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Securities
hereunder on either the First or Second Closing Date and the
aggregate number of shares of Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total number of shares of Securities that the
Underwriters are obligated to purchase on such Closing Date, you
may make arrangements satisfactory to the Company for the purchase
of such Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing
Date the non-defaulting Underwriters shall be obligated severally,
in proportion to their respective commitments hereunder, to
purchase the Securities that such defaulting Underwriters agreed
but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of
Securities with respect to which such default or defaults occur
exceeds 10% of the total number of shares of Securities that the
Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to you and the Company for the purchase
of such Securities by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 9 (provided that if such default
occurs with respect to the Optional Shares after the First Closing
Date, this Agreement will not terminate as to the Firm Shares). As
used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any
Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Securities. If
this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company and the Underwriters pursuant
to Section 7 shall remain in effect and if any Securities have been
purchased hereunder the representations and warranties in Section 2
and all obligations under Section 5 shall also remain in effect.
If the purchase of the Securities by the Underwriters is not
consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of
Section 6(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the
offering of the Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to you c/o ______________________________
_____________ or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 757 N. Eldridge, Houston,
Texas 77079, Attention: Henry L. Hirvela; provided, however, that
any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successor. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right
or obligation hereunder.
12. Representation of Underwriters. You will act for the
several Underwriters in connection with this financing, and any
action under this Agreement taken by you jointly or by
_____________________________________________ will be binding upon
all the Underwriters.
13. Counterpart. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one
and the same Agreement.
14. Consent to Representation. The Company and the
Underwriters acknowledge that Fulbright & Jaworski L.L.P., which
will be acting as special counsel to the Company in connection with
the offer and sale of the Securities, also acts as counsel from
time to time to one or more of the Underwriters in connection with
unrelated matters. The Company and the Underwriters consent to
Fulbright & Jaworski L.L.P. so acting as special counsel to the
Company. The Company and the Underwriters also acknowledge that
Vinson & Elkins L.L.P., which is acting as counsel to the
Underwriters in connection with the offer and sale of the
Securities, also acts as counsel from time to time to the Company
and certain of its subsidiaries in connection with unrelated
matters. The Company and Underwriters consent to Vinson & Elkins
L.L.P. so acting as counsel to the Underwriters.
15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us one of the counterparts
hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
BROWNING-FERRIS INDUSTRIES, INC.
By______________________________
Henry L. Hirvela
Vice President and Treasurer
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above written.
Acting on behalf of themselves and as
Representatives of the several Underwriters
By___________________________
By___________________________
SCHEDULE A
Underwriter Number of
----------- Firm Shares
-----------
Total
SCHEDULE B
Terms of Securities
Number of shares of [Preferred Stock][Common Stock] to be
issued: __________
Initial public offering price per share of [Preferred
Stock][Common Stock]: $____________, [plus accrued and unpaid
dividend, if any, from ______________, 19__.]
Purchase price per share of [Preferred Stock][Common Stock]
(amount equal to the initial public offering price set
forth above, less $__________ per share)
Optional Shares, if any: ____________________
Dividends: At a rate of ___% per annum (equivalent to
$__________ per share of Preferred Stock), payable quarterly on
________________ of each year. If cumulative, commencing
__________, 199_.
Regular Record Dates:
Additional representations, if any:
Liquidation Preference:
Redemption provisions:
Sinking Fund provisions:
S&P Rating:
Moody's Rating:
Duff & Phelps Rating:
Names and Addresses of Representatives:
Forms of Preferred Stock:
Listing Requirement:
Form of Payment if Other than Check in Next-Day Funds:
Other terms and conditions:
Exchangeability or convertibility requirements, if any:
Office for inspection of Securities:
SCHEDULE C
Principal Subsidiaries
Browning-Ferris Industries of Florida, Inc.
Browning-Ferris Industries of Illinois, Inc.
Browning-Ferris Industries of Ohio, Inc.
Browning-Ferris Industries of Pennsylvania, Inc.
Browning-Ferris Services, Inc.
Browning-Ferris Industries of California, Inc.
Browning-Ferris, Inc.
Browning-Ferris Industries, Inc. (Mass.)
Browning-Ferris Industries of New York, Inc.
Browning-Ferris Industries of South Atlantic, Inc.
Browning-Ferris Industries of Tennessee, Inc.
BFI International, Inc.
Azusa Land Reclamation Co., Inc.
BFI Energy Systems of Hempstead, Inc.
Browning-Ferris Industries Ltd.
Browning-Ferris Industries B.V.
Browning-Ferris Industries UK Limited
Browning-Ferris Industries (Italia) S.r.I.
BROWNING-FERRIS INDUSTRIES, INC.
$_____________
[Title of Securities]
UNDERWRITING AGREEMENT
_________________, 199__
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Dear Sirs:
We (the "Representatives") understand that Browning-Ferris
Industries, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell $____________ aggregate principal amount of its
[Title of Securities] (the "Underwritten Securities"). Subject to
the terms and conditions set forth herein or incorporated by
reference herein, the underwriters named below (the "Underwriters")
offer to purchase, severally and not jointly, the principal amount
of Underwritten Securities set forth below opposite their
respective names at ___% of the principal amount thereof, together
with accrued interest, if any, thereon from __________, 199__ to
the Delivery Date:
Underwriter Principal
Amount
________________________________________ $
________________________________________
________________________________________
________________________________________ _________
Total $________
The Underwritten Securities shall have the following terms:
Maturity:
Interest rate:
Interest payment dates:
Redemption provisions:
Sinking fund provisions:
Other terms:
Delivery date: ____________, 199__
Underwriting discounts and commissions: ___% of the principal
amount
Public offering price:
Arrangements, if any, with respect to Delayed Delivery Contracts:
Information in Prospectus Supplement which has been furnished by
Underwriters for inclusion therein:
Other terms and conditions:
All the provisions contained in Exhibit A to Exhibit 1(b) to the
Company's Registration Statement on Form S-3 (No. 33-________)
entitled "Browning-Ferris Industries, Inc. - Debt Securities -
Underwriting Agreement Basic Provisions" are herein incorporated by
reference in their entirety and shall be deemed to be a part of
this Underwriting Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Please accept this offer no later than _____ o'clock __M. on 199__
by signing a copy of this Underwriting Agreement in the space set
forth below and returning the signed copy to us, or by sending us
a written acceptance in the following form:
"We hereby accept your offer, set forth in the Underwriting
Agreement, dated _____________, 199__ to purchase the Underwritten
Securities on the terms set forth therein."
Very truly yours,
______________________________________
______________________________________
As Representatives of the Underwriters
By ___________________________________
By ___________________________________
Accepted:
BROWNING-FERRIS INDUSTRIES, INC.
By _____________________________
EXHIBIT A
BROWNING-FERRIS INDUSTRIES, INC.
Debt Securities
UNDERWRITING AGREEMENT PROVISIONS
Browning-Ferris Industries, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell certain of its Debt
Securities (the "Securities") in one or more offerings on terms
determined at the time of sale. The Securities will be issued
under a Restated Indenture, dated as of September 1, 1991, as
amended between the Company and Texas Commerce Bank, National
Association, as Trustee (successor trustee to First City, Texas-
Houston, National Association, formerly First City National Bank of
Houston), and an Indenture dated as of August 1, 1987 between the
Company and NationsBank Texas, N.A., as Trustee (successor trustee
to First RepublicBank Houston, National Association) (the
"Indentures").
Each issue of Securities may vary as to aggregate principal amount,
maturity date, interest rate or rates and timing of payments
thereof, redemption provisions and sinking fund requirements, if
any, and any other variable terms which the Indenture contemplates
may be set forth in the Securities as issued thereunder from time
to time. The standard provisions set forth herein may be
incorporated by reference in any underwriting agreement relating to
a particular issue of Underwritten Securities (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as this
Agreement. Unless otherwise defined therein, terms defined in the
Underwriting Agreement are used herein as therein defined.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. 33-_________)
with respect to the Securities has been prepared and filed by the
Company in conformity with the requirements of the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder and has become effective. As used in
this Agreement, (i) "Preliminary Prospectus" means each prospectus
(including all documents incorporated therein by reference)
included in that registration statement, or amendments or
supplements thereof, before it became effective under the Act,
including any prospectus filed with the Commission pursuant to Rule
424(a) of the Rules and Regulations; (ii) "Registration Statement"
means that registration statement (including all documents
incorporated therein by reference), as amended or supplemented at
the date of the Underwriting Agreement; (iii) "Basic Prospectus"
means the prospectus (including all documents incorporated therein by
reference) included in Registration Statement; (iv) "Prospectus"
means the Basic Prospectus, together with any prospectus amendment
or supplement (including in each case all documents incorporated
therein by reference) specifically relating to the Underwritten
Securities, as filed with the Commission pursuant to paragraph (b)
of Rule 424 of the Rules and Regulations (other than an Interim
Prospectus); and (v) "Interim Prospectus" means any preliminary
form of Prospectus specifically relating to the Underwritten
Securities, as filed with the Commission pursuant to paragraph (b)
of Rule 424 of the Rules and Regulations. The Commission has not
issued any order preventing or suspending the use of the
Prospectus.
(b) The Registration Statement contains, and the Prospectus
contains and will contain at all times during the period specified
in Paragraph 7(c), all statements which are required by the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
under such Acts; the Indenture, including any amendments and
supplements thereto, conforms with the requirements of and has been
duly qualified under, the Trust Indenture Act and the rules and
regulations of the Commission thereunder; the Registration
Statement, as of its effective date, did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus does not and will not at
any time during the period specified in Paragraph 7(c), contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided that the Company makes no
representation or warranty as to (i) information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished
to the Company through the Representatives by or on behalf of any
Underwriter specifically for use in connection with the preparation
thereof or (ii) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification under
the Trust Indenture Act (Form T-1) of the Trustee.
(c) The accountants who have certified or shall certify the
financial statements of the Company included in the Company's most
recent Annual Report on Form 10-K which is incorporated by
reference in the Prospectus (the "Form 10-K"), are independent
accountants, as required by the Act and the Rules and Regulations.
(d) The consolidated financial statements filed as part of or
incorporated by reference in the Registration Statement present
fairly, and the consolidated financial statements included in any
Preliminary Prospectus, any Interim Prospectus or the Prospectus
present and will present fairly at all times during the period
specified in Paragraph 7(c), the financial position, results of
operations, stockholders' equity and cash flow of the entities
purported to be shown thereby, as of the respective dates of, and
for the respective periods covered by, such financial statements,
all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved and
comply and will comply as to form in all material respects with the
Act, the Exchange Act and the rules and regulations of the
Commission promulgated thereunder. The term "financial statements"
includes the financial statements and the accompanying notes and
schedules.
(e) The Company and each of its consolidated subsidiaries
(the "Subsidiaries") have been duly incorporated, are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership of property or the
conduct of their respective businesses requires qualification
(except where the failure to be in good standing or to qualify
would not have a material adverse effect upon the Company and its
subsidiaries taken as a whole). The Company has all requisite
power and authority necessary to enter into this Agreement, any
Delayed Delivery Contracts (as defined in Paragraph 3) and the
Indentures, and to carry out the provisions and conditions hereof
and thereof. This Agreement has been duly and validly authorized,
executed and delivered by the Company and is a legal, valid and
binding instrument of the Company.
(f) Except as set forth or contemplated in the Prospectus,
there has not been any material adverse change in the financial
condition, results of operations, business or properties of the
Company and its subsidiaries taken as a whole from that on the
latest dates as of which or during the latest period for which such
financial condition, results of operations, business or properties
is set forth in the Prospectus.
(g) Except as referred to in the Prospectus, there is no
material litigation or governmental or other proceeding pending or,
to the best of the knowledge of the Company, threatened against or
affecting, or involving the properties or business of, the Company
or any of the Subsidiaries which singly or in the aggregate poses
a material risk of adversely affecting the transactions
contemplated by the Prospectus or which would pose a material risk
of adversely affecting the financial condition, results of
operations, business or properties of the Company or any Subsidiary
to an extent material to the Company and the Subsidiaries taken as
a whole or where an adverse decision would adversely affect the
validity or enforceability of this Agreement.
(h) All contracts, agreements and other documents required to
be filed as exhibits to the Registration Statement have been filed
with the Commission.
(i) Neither the Company nor any of the Subsidiaries is in
violation of its corporate charter or by-laws or in default under
any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its
subsidiaries taken as a whole.
(j) The execution, delivery and performance by the Company of
this Agreement and any Delayed Delivery Contracts and compliance by
the Company with the provisions of the Underwritten Securities and
the Indentures will not conflict with, result in the creation or
imposition of any lien, security interest or other encumbrance upon
any of the assets of the Company or any of the Subsidiaries
pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument to which the Company is a party
or by which it is bound where any such default would be material to
the Company and the Subsidiaries taken as a whole or result in a
violation of the corporate charter or by-laws of the Company or any
of the Subsidiaries or, to the best knowledge of the Company, any
law applicable to the Company or the Subsidiaries the penalties for
violations of which would be material singly or in the aggregate to
the Company and the Subsidiaries taken as a whole; and except as
required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws or "Blue Sky" laws of any
jurisdiction, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for
the execution, delivery and performance by the Company of this
Agreement, the Delayed Delivery Contracts, if any, and the
Indentures.
(k) On the Delivery Date (as defined in Paragraph 6), (i)
each Indenture (including all amendments thereof and supplements
thereto) will have been validly authorized, executed and delivered
by the Company and will constitute the legally binding obligation
of the Company, (ii) the Underwritten Securities will have been
validly authorized and, upon payment therefor as provided in this
Agreement, will be validly issued and outstanding, and will
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture pursuant to which they
are issued, and (iii) the Underwritten Securities, and the
Indenture pursuant to which they are issued, will conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(l) Since the end of its most recently completed fiscal year,
the Company has filed all documents and amendments to previously
filed documents required to be filed by it pursuant to Section 12,
13(a), 13(b), 14 or 15(d) of the Exchange Act; the documents
incorporated by reference into any Preliminary Prospectus, any
Interim Prospectus or the Prospectus have been, and (in the case of
any amendment or supplement to any such document, or any material
incorporated reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be at all times during the period specified in Paragraph
7(c), prepared by the Company in conformity with the applicable
requirements of the Act and the Rules and Regulations and the
Exchange Act and the rules and regulations of the Commission
thereunder, and such documents have been, or (in the case of any
amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be at all times during the period specified in Paragraph
7(c), timely field as required thereby.
2. The obligation of the Underwriters to purchase, and the
Company to sell, the Underwritten Securities is evidenced by an
Underwriting Agreement delivered at the time the Company determines
to sell the Underwritten Securities. The Underwriting Agreement
specifies the firm or firms which will be Underwriters, the
principal amount of the Underwritten Securities to be purchased by
each Underwriter, the purchase price to be paid by the Underwriters
for the Underwritten Securities, the public offering price, if any,
of the Underwritten Securities, whether or not the Underwriters are
authorized to solicit institutional investors to purchase
Underwritten Securities pursuant to Delayed Delivery Contracts,
certain terms thereof and the Underwriters' compensation therefor
and any terms of the Underwritten Securities not already specified
in the Indenture pursuant to which they are issued (including, but
not limited to, designations, denominations, interest rates and
payment dates, maturity and redemption provisions and sinking fund
requirements). The Underwriting Agreement specifies any details of
the terms of the offering which should be reflected in the post-
effective amendment to the Registration Statement or the supplement
to the Prospectus relating to the offering of the Underwritten
Securities.
It is understood that, in making this Agreement, the
Underwriters are contracting severally and not jointly, and that
their several agreements to purchase Securities on the basis of the
agreements and representations herein contained shall be several
and not joint and shall apply only to the respective principal
amounts of Securities to be purchased by them as provided therein.
3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall
be made pursuant to contracts substantially in the form of Exhibit
I attached hereto, with such changes therein as the Company and the
Representatives may approve (the "Delayed Delivery Contracts").
The Company shall have the right, in its sole discretion, to
approve or disapprove each such institutional investor.
Underwritten Securities which are subject to Delayed Delivery
Contracts are herein sometimes called "Delayed Delivery
Underwritten Securities" and Underwritten Securities which are not
subject to Delayed Delivery Contracts are herein sometimes called
"Immediate Delivery Underwritten Securities".
Contemporaneously with the purchase on the Delivery Date by
the Underwriters of the Immediate Delivery Underwritten Securities
pursuant to this Agreement, the Company will pay to the
Representatives, for the account of the Underwriters, the
compensation specified in the Underwriting Agreement for arranging
the sale of Delayed Delivery Underwritten Securities. The
Underwriters shall have no responsibility with respect to the
validity or performance of any Delayed Delivery Contracts.
For the purpose of determining the principal amount of
Immediate Delivery Underwritten Securities to be purchased by each
Underwriter, there shall be deducted from the principal amount of
Underwritten Securities to be purchased by such Underwriter as set
forth in the Underwriting Agreement that portion of the aggregate
principal amount of Delayed Delivery Underwritten Securities that
the principal amount of Underwritten Securities to be purchased by
such Underwriter as set forth in the Underwriting Agreement bears
to the aggregate principal amount of Underwritten Securities set
forth therein to be purchased by all of the Underwriters (in each
case as adjusted by the Representatives to avoid fractions of the
minimum principal amount in which the Underwritten Securities may
be issued), except to the extent that the Representatives
determine, in their discretion, that such deduction shall be
otherwise than in such proportion and so advise the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon tender of payment for all Immediate Delivery
Underwritten Securities to be purchased pursuant to this Agreement
as hereinafter provided.
5. If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Immediate Delivery
Underwritten Securities which the defaulting Underwriter agreed but
failed to purchase in the respective proportions which the
principal amount of Underwritten Securities set forth in the
Underwriting Agreement to be purchased by each remaining non-defaulting
Underwriter set forth therein bears to the aggregate principal amount
of Underwritten Securities set forth therein to be purchased by all
the remaining non-defaulting Underwriters; provided that the remaining
non-defaulting Underwriters shall not be obligated to purchase any
Immediate Delivery Underwritten Securities if the aggregate principal
amount of Immediate Delivery Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase exceeds
10% of the total principal amount of Underwritten Securities. If
the foregoing maximum is exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the
Representatives, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them,
all the Immediate Delivery Underwritten Securities. If the
remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the Immediate Delivery
Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue
to be liable for the payment of expenses as set forth in Paragraphs
7(j) and 11.
Nothing contained in this Paragraph 5 shall relieve a
defaulting Underwriter of any liability it may have to the Company
or to the other several Underwriters for damages caused by its
default. If other Underwriters are obligated or agree to purchase
the Immediate Delivery Underwritten Securities of a defaulting or
withdrawing Underwriter, either the Representatives or the Company
may postpone the Delivery Date for up to seven full business days
in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or
arrangement. As used in this Agreement, the term "Underwriter"
shall include any party substituted under this Section 5 with the
same effect as if it had originally been a party to this Agreement
with respect to such Immediate Delivery Underwritten Securities.
6. Delivery of and payment for the Immediate Delivery
Underwritten Securities shall be made at such location as may be
agreed upon by the Representatives and the Company, at 10:00 A.M.,
New York City time, on the fifth business day following the date of
the Underwriting Agreement (unless postponed in accordance with the
provisions of Paragraph 5 hereof), or at such other time and date
as shall be agreed upon. This date and time are sometimes referred
to as the "Delivery Date". On the Delivery Date the Company shall
deliver the Immediate Delivery Underwritten Securities to the
Representatives for the account of each Underwriter against payment
to or upon the order of the Company of the purchase price by
certified or official bank check or checks payable in New York
Clearing House (next day) funds. Upon delivery, the
Immediate Delivery Underwritten Securities shall be in definitive
fully registered form and in such denominations and registered in
such names as the Representatives shall request in writing not
later than 10:30 A.M., New York City time, on the third business
day prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the Immediate Delivery Underwritten
Securities, the Company shall make the Immediate Delivery
Underwritten Securities available for inspection by the
Representatives in New York, New York, or such other place as may
be agreed upon by the Representatives and the Company, not later
than 2:00 P.M., New York City time, on the business day prior to
the Delivery Date.
7. The Company agrees:
(a) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed and each amendment or supplement
thereto filed prior to the date of the Underwriting Agreement or
relating to or covering the Underwritten Securities, and a copy of
the Prospectus filed with the Commission, including all documents
incorporated therein by reference and all consents and exhibits
filed therewith;
(b) To deliver promptly to the Underwriters such number of
the following documents as the Representatives may reasonably
request: (i) conformed copies of the Registration Statement
(excluding exhibits other than the computation of the ratio of
earnings to fixed charges, the Indentures and this Agreement), (ii)
the Prospectus and (iii) any documents incorporated by reference in
the Prospectus, and the Company authorizes the Underwriters and all
dealers to whom any Underwritten Securities may be offered or sold
by the several Underwriters to use such documents during the period
referred to in (c) below in connection with the sale of the
Underwritten Securities in accordance with the applicable
provisions of the Act and the Rules and Regulations;
(c) To file with the Commission, during such period following
the date of the Underwriting Agreement as, in the opinion of
counsel for the Underwriters, the Prospectus is required by law to
be delivered, any amendment or supplement to the Registration
Statement or the Prospectus that may, in the judgment of the
Company or the Representatives, be required by the act or requested
by the Commission;
(d) Prior to filing with the Commission during the period
referred to in (c) above (i) any amendment or supplement to the
Registration Statement, (ii) the Prospectus or any amendment or
supplement thereto or (iii) any document incorporated by reference
in any of the foregoing or any amendment or supplement to any such
incorporated document, to furnish a copy thereof to the Representatives
and to counsel for the Underwriters and, with respect to any such filing
prior to the Delivery Date, obtain the consent of the
Representatives to the filing, which consent shall not be
unreasonably withheld;
(e) To advise the Representatives promptly (i) when any post-
effective amendment to the Registration Statement
relating to or covering the Underwritten Securities becomes
effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration
Statement (insofar as the amendment or supplement relates to or
covers the Underwritten Securities), to the Prospectus, to any
document incorporated by reference in any of the foregoing or for
any additional information relating to the Registration Statement
(insofar as such information relates to or covers the Underwritten
Securities), (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
any order directed to the Prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in the Prospectus and (iv) of
receipt by the Company of any notification with respect to the
suspension of the qualification of the Underwritten Securities for
sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose. In case of the happening at any time
during the period referred to in (c) above of any event which
materially affects the Company or the Underwritten Securities and
which should be set forth in a supplement to or an amendment of the
Prospectus relating to the Underwritten Securities in order to make
the statements therein not misleading, the Company agrees to
prepare and furnish to the several Underwriters at its own expense
such amendment or amendments to such Prospectus as will correct
such Prospectus so that as corrected it will not contain, or such
supplement or supplements to such Prospectus which when read in
conjunction with such Prospectus will make the combined information
not contain, any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
in such Prospectus, in light of the circumstances under which they
were made, not misleading;
(f) If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to
obtain the lifting of that order at the earliest possible time;
(g) As soon as practicable, in accordance with Rule 158 under
the Act, to make generally available to the holders of
Securities and to deliver to the Representatives an earnings
statement (which need not be audited), conforming with the
requirements of Section 11(a) of the Act, covering a period of at
least 12 months beginning after the effective date of the
Registration Statement;
(h) For a period of three years after the Delivery Date for
the Underwritten Securities, to furnish to each of the
Representatives copies of all public reports and all reports and
financial statements furnished by the Company to the New York Stock
Exchange, Inc. pursuant to requirements of or agreements with such
Exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for
offer and sale under the securities laws of such jurisdictions as
the Representatives may reasonably request, provided that the
Company shall not be required to register or qualify as a foreign
corporation nor, except as to matters relating to the offer and
sale of the Underwritten Securities, take any action which would
subject it to service of process generally in any jurisdiction, or
to the imposition of any taxes based on, or measured by, all or any
part of the income of the Company, in any jurisdiction where it is
not at such date so subject;
(j) To pay all costs incident to the authorization, issuance,
sale and delivery of the Underwritten Securities; the costs
incident to the preparation, printing and filing under the Act of
the Registration Statement and any amendments, supplements and
exhibits thereto; the costs incident to the preparation, printing
and filing of any document and any amendments and exhibits thereto
required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statement as originally
filed and each amendment and post-effective amendment thereof
(including exhibits), any Preliminary Prospectus, the Prospectus
and any documents incorporated by reference in any of the foregoing
documents; the costs of printing this Agreement, any Agreement
Among Underwriters and the Delayed Delivery Contracts, if any; fees
paid in connection with any filings with the National Association
of Securities Dealers, Inc.; fees paid to rating agencies in
connection with the rating of the Securities, including the
Underwritten Securities; the fees and expenses of qualifying the
Securities, including the Underwritten Securities, under the
securities laws of the several jurisdictions as provided in this
Paragraph and of preparing and printing a Blue Sky Memorandum, and
a memorandum concerning the legality of the Securities, including
the Underwritten Securities, as an investment (including reasonable
fees of counsel to the Underwriters in connection therewith); and
all other costs and expenses incident to the performance of the Company's
obligations under this Agreement; provided, that, except as
provided in this Paragraph and in Paragraph 11, the Underwriters
shall pay all their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the Underwritten
Securities which they may sell and the expenses of advertising any
offering of the Underwritten Securities made by the Underwriters;
and
(k) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments to
previously filed documents, required to be filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
8. (a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as of its effective date or as of the
effective date of any post-effective amendment thereof, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any Interim Prospectus or
the Prospectus, or in any amendment thereof or supplement thereto,
or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and reimburse each such indemnified
party upon demand for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action and shall, if
requested by any such indemnified party, assume the defense of such
indemnified party in any action based upon allegations of any such
loss, claim, damage or liability, with counsel satisfactory to such
indemnified party; provided, however, that the Company will not be
liable in any such case (i) to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives expressly for use in
connection with the preparation of the Registration Statement or
(ii) with respect to the Prospectus, if used outside the period during
which the Underwriters are authorized to use the same or (iii) with
respect to any Preliminary Prospectus, if such statement or
omission was contained or made in any Preliminary Prospectus and
corrected in the Prospectus and (x) the loss, claim, damage or
liability suffered or incurred by any Underwriter (or any person
who controls any Underwriter) resulted from an action, claim, or
suit by any person who purchased Underwritten Securities which are
the subject thereof from such Underwriter in the offering, and (y)
such Underwriter failed to deliver or provide a copy of the
Prospectus to such person at or prior to the confirmation of the
sale of Underwritten Securities in any case where such delivery is
required by the Act (unless such failure is the result of non-
compliance by the Company with subparagraph (b) of Paragraph 7).
This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter shall indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed
the Registration Statement and each person, if any, who controls
the Company within the meaning of the Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act or otherwise
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement as of its effective date or as of the
effective date of any post-effective amendment thereof, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any Interim Prospectus or
the Prospectus, or in any amendment thereof or supplement thereto,
or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to
the extent, that the same was made therein in reliance upon and in
conformity with written information furnished to the Company by or
on behalf of such Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement, and reimburse each such indemnified party
upon demand for any legal or other expenses reasonably incurred by
it in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise
have.
(c) Promptly after receipt by an indemnified party under this
Paragraph 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Paragraph 8, notify the
indemnifying party in writing of the commencement of such action in
sufficient time to permit the indemnifying party to assume the
defense thereof, but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Paragraph 8. In
case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will (i) if it is so required under subparagraph
(a) of this Paragraph, assume the defense of such action with
counsel satisfactory to such indemnified party, or (ii) if not
required to assume the defense under such paragraph (a), will be
entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel satisfactory to such
indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and the indemnifying
party, and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert
such legal defenses (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of
the indemnified party or parties, but the indemnifying party shall
not, in connection with any one such action, or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the fees and expenses with respect to any period during
the pendency of such action or similar or related actions of more
than one separate firm of attorneys for all indemnified parties so
named, designated in writing by the Representatives if the
indemnifying party is the Company or by the Company if the
indemnifying party is any Underwriter. Upon the assumption by the
indemnifying party of the defense of such action pursuant to clause
(i) or clause (ii) of this subparagraph (c), and approval by the
indemnified party of counsel, the indemnifying party shall not be
liable to such indemnified party under this Paragraph 8 for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof (other than reasonable
costs of investigation) unless (x) the indemnified party shall have
employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding
sentence, (y) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time, or (z) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. The indemnifying
party shall not be liable for any settlement of any action or claim
effected without its consent which consent shall not be
unreasonably withheld.
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in
subparagraph (a) or (b) of this Paragraph 8 is for any reason held
to be unavailable from an indemnifying party, then the Company and
the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including any investigation, legal and
other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims
asserted) to which the Company and one or more of the Underwriters
may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting commissions with respect to the Underwritten
Securities bears to the public offering price, and the Company is
responsible for the balance; provided, however, that (y) in no case
shall any Underwriter (except as may be provided in any Agreement
Among Underwriters) be responsible for any amount in excess of the
underwriting commission applicable to the Underwritten Securities
purchased by such Underwriter hereunder, and (z) no person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this Paragraph 8, each person, if any, who controls an
Underwriter within the meaning of the Act shall have the same
rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of the Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to
clauses (y) and (z) of this subparagraph (d). Any party entitled
to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against
another party or parties under this subparagraph (d), notify such
party or parties from whom contribution may be sought, but the
omission so to notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this subparagraph (d).
(e) The respective indemnity and contribution agreements of
the Company and the Underwriters contained in this Paragraph 8, and
the representations and warranties of the Company contained in
Paragraph 1, shall remain operative and in full force and effect,
regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any Underwriter or the
Company or any director or officer or any controlling person
referred to in this Paragraph 8, and such agreement,
representations and warranties, as well as the other covenants
contained herein, shall survive the delivery of the Underwritten
Securities and any successor of any Underwriter or of the Company
or any legal representative of any such director or officer or of
any such controlling person, as the case may be, shall be entitled
to the benefits of the respective indemnity and contribution agreements.
9. The obligations of the Underwriters under this Agreement may
be terminated by the Representatives, in their absolute discretion,
by notice given to and received by the Company prior to the
delivery of and payment for the Immediate Delivery Underwritten
Securities, if, during the period beginning on the date of the
Underwriting Agreement to and including the Delivery Date, there
shall have occurred (a) any change, or any development involving a
prospective change, in or affecting primarily the financial
condition, results of operations, business or property of the
Company and its Subsidiaries taken as a whole which has a material
adverse effect on the investment quality of the Underwritten
Securities; (b) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the
establishment of minimum prices on such exchange; (c) a general
moratorium on commercial banking activities declared by Federal,
New York State or Texas State authorities; (d) any downgrading in
the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act; or (e) any material adverse change in the existing
financial, political or economic conditions in the United States,
including any effect of international conditions on the financial
markets in the United States that, in the judgment of the
Representatives, makes it impracticable or inadvisable to commence
or continue the offering of the Underwritten Securities or to
enforce contracts for the resale of the Underwritten Securities by
the Underwriters.
10. The respective obligations of the Underwriters under this
Agreement with respect to the Underwritten Securities are subject
to the accuracy in all material respects, on the date of the
Underwriting Agreement and on the Delivery Date, of the
representations and warranties of the Company contained herein, to
performance by the Company of its obligations hereunder required to
be performed at or prior to the Delivery Date, and to each of the
following additional terms and conditions applicable to the
Underwritten Securities:
(a) At or before the Delivery Date, no stop order suspending
the effectiveness of the Registration Statement nor any order
directed to any document incorporated by reference in the
Prospectus shall have been issued and prior to that time no stop
order proceeding shall have been initiated or threatened by the
Commission, and no challenge shall have been made to the accuracy
or adequacy of any document incorporated by reference in the
Prospectus; any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with; and after
the date of the Underwriting Agreement the Company shall not have
filed with the Commission any amendment or supplement to the
Registration Statement or the Prospectus (or any document
incorporated by reference therein) without the consent of the
Representatives, which consent shall not be unreasonably withheld.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration
Statement contained at the date of the Underwriting Agreement, or
that the Prospectus contained at such date or contains, an untrue
statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omitted or omits to state a fact
which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein
(and in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement,
the Underwritten Securities and the Indentures and the form of the
Registration Statement, the Prospectus (other than financial
statements and other financial data) and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be satisfactory in all material respects to counsel for the
Underwriters, the Underwriters shall have received the favorable
opinion of counsel for the Underwriters, dated as of the Delivery
Date, with respect to such matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel all documents and information that it may reasonably
request to enable it to pass upon such matters.
(d) The Company shall have furnished to the Representatives,
on the Delivery Date, a certificate, dated as of the Delivery Date,
of its Chairman of the Board or the President or a Vice President
and of the chief financial officer of the Company, stating that, to
the best of their knowledge after due investigation:
(i) There is no litigation or governmental proceeding
pending or threatened of a character which would materially
adversely affect the subject matter of this Agreement or be
required to be disclosed in the Registration Statement which is not
so disclosed;
(ii) On the Delivery Date, the representations and
warranties contained in Paragraph 1 are true and
correct in all material respects, the Company has complied, in all
material respects, with all its agreements herein contained, and
the conditions to be performed by the Company referred to in this
Paragraph have been fulfilled; and
(iii) There have been no material adverse changes in the
financial condition, results of operations, business or properties
of the Company and its subsidiaries taken as a whole, from that
shown in the Registration Statement and the Prospectus, other than
changes disclosed by or contemplated in the Registration Statement
or the Prospectus.
(e) The Company shall have furnished to the Representatives,
on the Delivery Date, the opinion of counsel for the Company,
addressed to the Representatives and in form and substance
satisfactory to the Representatives and counsel for the
Underwriters, with respect to the issuance and sale of the
Underwritten Securities and such other related matters as the
Representatives may reasonably require. In rendering such
opinions, such counsel may rely as to matters governed by the laws
of other jurisdictions (other than the United States, New York and
Texas) on the opinions of local counsel satisfactory to such
counsel.
(f) You shall have received a letter, dated the date of
delivery thereof (which shall be on or prior to the date of this
Agreement) of Arthur Andersen & Co. confirming that they are
independent public accountants within the meaning of the Act and
the applicable published 1933 Act Regulations thereunder and
stating in effect that:
(i) in their opinion the financial statements examined
by them and incorporated by reference in the Registration Statement
comply in form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the
related published rules and regulations;
(ii) they have made a review of the unaudited financial
statements included or incorporated by reference in the
Registration Statement in accordance with standards established by
the American Institute of Certified Public Accountants;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements
included or incorporated by reference in the Registration Statement
do not comply in form in all material respects with the applicable
accounting requirements of the 1934 Act and the related published
rules and regulations or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements
incorporated by reference in the Registration Statement;
(B) at the date of the latest available
balance sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the date of this
Agreement, there was any change in the common stock or additional
paid-in capital account or in short-term indebtedness or long-term
debt of the Company and its subsidiaries consolidated or any
decrease in consolidated common stockholders' equity, as compared
with amounts shown on the latest consolidated balance sheet
included or incorporated by reference in the Prospectus; or
(C) for the period from the closing date of
the latest consolidated income statement included or incorporated
by reference in the Prospectus to the closing date of the latest
available consolidated income statement read by such accountants,
or at a subsequent specified date not more than five days prior to
the date of this Agreement, there were any decreases, as compared
with the corresponding period of the previous year, in consolidated
revenues, or in the total or per share amounts of consolidated net
income;
except in all cases set forth in clauses
(B) and (C) above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(iv) they have compared specified dollar
amounts (or percentages derived from such dollar amounts) and other
financial information contained in the Registration Statement (in
each case to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules
included in material incorporated by reference into the Prospectus
shall be deemed included in the Registration Statement for purposes
of this subsection.
(g) Subsequent to the date of the Underwriting Agreement,
there shall not have been any change or other development in the
financial condition or business of the Company which, in the
reasonable judgment of the Representatives, has had or may have
materially adverse consequences for the Company or which makes it
impractical or inadvisable, in the reasonable judgment of the
Representatives, to proceed with the public offering or the
delivery of the Underwritten Securities.
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters, or if the
Underwriters shall decline to purchase the Immediate Delivery
Underwritten Securities for any reason permitted under this
Agreement, the Company shall reimburse the Underwriters for the
reasonable fees and expenses of their counsel and for such other
out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of
Immediate Delivery Underwritten Securities and the solicitation of
any purchases of the Delayed Delivery Underwritten Securities, and
upon demand the Company shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to
Paragraph 5 hereof by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse the
several Underwriters on account of those expenses.
12. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement by the Representatives. Any
notice by the Company to the Underwriters shall be sufficient if
given in writing or by telegraph addressed to the Representatives
specified in the Underwriting Agreement, and any notice by the
Underwriters to the Company shall be sufficient if give in writing
or by telegraph addressed to the Company at 757 N. Eldridge,
Houston, Texas 77079, Attention: Secretary.
13. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company, and their respective successors
and assigns. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for
the benefit of any person or persons, if any, who control any
Underwriter within the meaning of the Act, and (b) the indemnity
agreement of the Underwriters contained in Paragraph 8 shall be
deemed to be for the benefit of directors of the Company, officers
of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of the Act, and,
in each case, their respective legal representatives, successors
and assigns. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to
above in this Paragraph, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision
contained herein. The term "successors" or the term "successors
and assigns" as used in this Agreement shall not include any
Purchaser, as such Purchaser, from any of the Underwriters of any
of the Underwritten Securities.
14. For purposes of this Agreement, (a) "business day" means any
day on which the New York Stock Exchange, Inc. is open trading, and
(b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
15. This Agreement shall be governed by and construed in
accordance with this laws of New York applicable to contracts made
and to be performed within the State of New York. The Underwriting
Agreement may be executed in one or more counterparts and if
executed in more than one counterpart, the executed counterparts
shall together constitute a single instrument.
EXHIBIT I
BROWNING-FERRIS INDUSTRIES, INC.
[Title of Securities]
Delayed Delivery Contract
____________, 199_
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Dear Sirs:
The undersigned hereby agrees to purchase from Browning-Ferris
Industries, Inc., a Delaware corporation (the "Company"), and the
Company hereby agrees to sell to the undersigned $_____________
principal amount of the Company's above-captioned securities (the
"Securities"), offered by the Company's prospectus dated
____________, 199_, as supplemented by the prospectus supplement
dated ____________, 199_ (collectively, the "Prospectus"), receipt
of a copy of which is hereby acknowledged, at a purchase price of
___% of the principal amount thereof plus accrued interest from
____________, 199_ to the Delivery Date (as defined in the next
paragraph) and on the further terms and conditions set forth in
this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on ____________, 199_ herein called the
"Delivery Date".
At 10:00 A.M., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be
delivered by the Company to the undersigned, and the undersigned
will accept delivery of such Securities and will make payment to
the Company of the purchase price therefor, at the office of
_____________. Payment will be certified or official bank check
payable in New York Clearing House funds to or upon the order of
the Company. The Securities will be delivered in definitive fully
registered form in such authorized denominations and registered in
such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than
two full business days prior to the Delivery Date, or if the
undersigned fails to make a timely designation in the foregoing
manner, in the form of one definitive fully registered certificate
representing the Securities in the above principal amount,
registered in the name of the undersigned.
This Contract will terminate and be of no further force and effect
after ____________, 199_, unless (i) on or before such date it
shall have been executed and delivered by both parties hereto and
(ii) the Company shall have sold to the Underwriters named in the
Prospectus the Immediate Delivery Underwritten Securities (as
defined in the Underwriting Agreement referred to in the
Prospectus), and the Company shall have mailed or delivered to the
undersigned at its address set forth below a notice to that effect,
stating the date of the occurrence thereof, accompanied by copies
of the opinions of counsel for the Company delivered to such
Underwriters pursuant to Paragraph 10(e) of the Underwriting
Agreement Basic Provisions.
The obligation of the undersigned to accept delivery of and make
payment for the Securities on the Delivery Date will be subject to
the condition that the Securities shall not, on the Delivery Date,
be an investment prohibited by the laws of the jurisdiction to
which the undersigned is subject, the undersigned hereby
representing that such an investment is not so prohibited on the
date hereof.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors but will not be
assignable by either party hereto without the written consent of
the other.
It is understood that acceptance of any Delayed Delivery Contract
(as defined in said Underwriting Agreement) is in the Company's
sole discretion and, without limiting the foregoing, need not be on
a first-come, first-served basis. If this Contract is acceptable
to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof
to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned
when such counterpart is so mailed or delivered.
This Contract shall be governed by the laws of the State of New
York.
Very truly yours,
________________________________
(Name of Purchaser)
By: ___________________________
Title: ________________________
________________________________
________________________________
Address
Accepted as of ____________, 199_
BROWNING-FERRIS INDUSTRIES, INC.
By: ___________________________
Title: ________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please Print.)
Telephone No.
(including
Name Area Code)
=====================================================
BROWNING-FERRIS INDUSTRIES, INC.
AND
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
As Trustee
_______________
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 11, 1994
_______________
SUPPLEMENTING AND AMENDING THE
INDENTURE DATED AS OF AUGUST 1, 1987
=====================================================
THIS FIRST SUPPLEMENTAL INDENTURE, is dated as of January 11, 1994,
between BROWNING-FERRIS INDUSTRIES, INC., a corporation duly organized
and existing under the laws of the State of Delaware (the "Company"),
and NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION (as successor to First
RepublicBank Houston, National Association), a national banking
association duly organized and existing under the laws of the United
States of America, as trustee under the Original Indenture referred to
below (the "Trustee").
W I T N E S S E T H:
WHEREAS, to provide for its lawful corporate purposes the Company
has duly authorized the issue from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness
("Securities"), to be issued in one or more series; and
WHEREAS, the Company has heretofore made, executed and delivered
to the Trustee its Indenture dated as of August 1, 1987 (the "Original
Indenture"); and
WHEREAS, by virtue of the provisions of the Original Indenture,
the Company is empowered to deliver Securities of any series authorized
and executed by the Company to the Trustee for authentication, and the
Trustee is thereupon empowered in the manner set forth in Articles One,
Two and Three of the Original Indenture to authenticate and deliver
said Securities to or upon the written order of the Company without any
further action by the Company; and
WHEREAS, it is deemed advisable to supplement and amend the
Original Indenture as provided in this First Supplemental Indenture
(the Original Indenture, as so supplemented and amended by this First
Supplemental Indenture, being sometimes referred to herein as the
"Indenture"); and
WHEREAS, Section 901 of Article Nine of the Original Indenture
provides that under certain conditions the Company and Trustee, may,
without the consent of the Holders of Securities, from time to time and
at any time, enter into an indenture or indentures supplemental thereto,
for the purpose, among others, of supplementing any provision contained
therein which may be defective or inconsistent with any other provision
contained therein; to make such other provisions in regard to matters or
questions arising under the Original Indenture as the Company by or
pursuant to a Board Resolution may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Securities;
or to establish the form or terms and to provide for the issuance of
Securities of any series as permitted by Sections 201 and 301; and
WHEREAS, all the requirements prescribed by law and by the
Certificate of Incorporation of the Company have been fully complied
with and all conditions and requirements necessary to authorize the
execution, acknowledgement and delivery of this First Supplemental
Indenture, to effect duly and legally the modifications and alterations
of the Original Indenture provided in this First Supplemental Indenture
and to make the Indenture a valid, binding and legal instrument for the
benefit of the Holders of Securities, have been complied with;
NOW, THEREFORE, for and in consideration of the premises and the
acceptances or purchases of the Securities by the Holders thereof, the
Company and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective Holders from time to time of
the Securities as follows:
ARTICLE 1
MODIFICATION OF THE ORIGINAL INDENTURE
Section 1.1. Supplement and Amendment to Section 101 of the
Original Indenture. Article One of the Original Indenture is amended to
include therein the following provisions:
(a) After the definition of Defaulted Interest:
"`Depositary' means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary for such series
by the Company pursuant to Section 301 or otherwise appointed by the
Company as a successor to such Person in the event such Person is
unwilling or unable to continue to serve in such capacity."
(b) After the definition of Event of Default:
"`Global Security' means a Security in the form prescribed in
Section 203 evidencing all or part of a series of Securities, which in
each case have the same terms, issued to the Depositary for such series
or its nominee, and registered in the name of such Depositary or nominee."
Section 1.2. [Reserved.]
Section 1.3 Supplement and Amendment to Section 107 of the Original
Indenture. Section 107 of the Original Indenture is amended to read in
its entirety as follows:
"SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
other provision hereof which is required to be included in this Indenture,
or is deemed applicable to this Indenture, by any of the provisions of the
Trust Indenture Act, such required provisions shall control."
Section 1.4. Supplement and Amendment to Article Two of the
Original Indenture. Article Two of the Original Indenture is modified by
adding a new Section 203 to read in its entirety as follows:
"SECTION 203. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 201 and 202, bear a legend in substan-
tially the following form:
`This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered in the name of
a Depositary or a nominee of a Depositary. This Security is exchangeable
for Securities registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in
the Indenture and may not be transferred except as a whole by the
Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor of such Depositary or
a nominee of such successor.'"
Section 1.5. Supplement and Amendment to Section 301 of the
Original Indenture. Article Three of the Original Indenture is modified
by deleting the word "and" at the end of Section 301(12) of the Original
Indenture, renumbering Section 301(13) of the Original Indenture as
Section 301(14), and adding new Section 301(13) to read in its entirety
as follows:
"(13) whether the Securities of the series shall be issued
in whole or in part in the form of one or more Global Securities and,
in such case, the Depositary for such Global Security or Securities, which
Depositary shall be a clearing agency registered under the Securities
Exchange Act of 1934, as amended; and"
Section 1.6. Supplement and Amendment of Section 305 of the
Original Indenture. Article Three of the Original Indenture is modified
by adding the following paragraphs to the end of Section 305 of the
Original Indenture:
"Notwithstanding the foregoing, any Global Security shall be
exchangeable pursuant to this Section 305 for Securities registered in
the names of Persons other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or
if at any time such Depositary ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, and the Company
fails to appoint a successor Depositary for such Global Security within
90 days after the Company receives such notice or becomes aware of such
event, (ii) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be so exchangeable, or (iii) there
shall have occurred and be continuing an Event of Default or an event
which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default with respect to the Securities. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depositary
shall direct.
Except as provided in the immediately preceding paragraph, a
Global Security may not be transferred except as a whole by the Depositary
with respect to such Global Security to a nominee of such Depositary or by
a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of
such Depositary or a nominee of such successor.
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 Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests."
Section 1.7. Supplement and Amendment to Section 308 of the Original
Indenture. Article Three of the Original Indenture is modified by adding
the following paragraph to the end of Section 308 of the Original
Indenture:
"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 a Depositary or
impair, as between a Depositary and holders of beneficial interests in
any Global Security, the operation of customary practices governing the
exercise of the rights of the Depositary as Holder of such Global
Security."
Section 1.8. Supplement and Amendment to Section 608 of the Original
Indenture. Section 608(a) of the Original Indenture is amended to read in
its entirety as follows:
"(a) If Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any
series, within 90 days after ascertaining that it has such conflicting
interest, and if the default, as defined in this Section, to which such
conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of such 90-day period, the Trustee
shall either eliminate such conflicting interest or, except as otherwise
provided below, resign with respect to that series, and the Company shall
take prompt steps to have a successor appointed in the manner provided in
Section 610."
Section 608(b) of the Original Indenture is amended to read in its
entirety as follows:
"(b) If the Trustee shall fail to comply with the provisions of
Subsection (a) of this Section with respect to the Securities of any
series, the Trustee shall, within 10 days after the expiration of such 90-
day period, transmit by mail to all Holders of Securities of that series,
as their names and addressees appear in the Security Register, notice of
such failure and, subject to the provisions of Section 514, unless the
Trustee's duty to resign is stayed as provided below, any Holder who has
been a bona fide Holder of Securities for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment
of a successor, if the Trustee fails, after written request thereof by
such Holder to comply with the provisions of Subsection (a).
Except in the case of a default in the payment of the principal
of or interest on any Security, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to resign as
provided by this Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for
hearing thereon, that (i) the default under the Indenture may be cured or
waived during a reasonable period and under the procedures described in
such application, and (ii) a stay of the Trustee's duty to resign will not
be inconsistent with the interests of the Holders of the Securities.
The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise.
Any resignation of the Trustee shall become effective only upon the
appointment of a successor Trustee in accordance with the provisions of
Section 610 and such successor's acceptance of such an appointment."
Section 608(c) of the Original Indenture is amended to read in its
entirety, except as otherwise noted, as follows:
"(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Securities of
any series if the Securities of such series are in default (as
determined in accordance with the provisions of Section 501, but exclusive
of any period of grace or requirement of notice) and
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series other than that series
or is trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of the
Company are outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities issued
under this Indenture, provided that there shall be excluded from the
operation of this paragraph this Indenture with respect to the Securities
of any series other than that series or any indenture or indentures under
which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable thereunder) are wholly
unsecured and rank equally and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act, unless the Commission
shall have found and declared by order pursuant to Section 305(b) or
Section 307(c) of the Trust Indenture Act that differences exist between
the provisions of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other indenture or
indentures which are so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this
Indenture with respect to the Securities of that series and such other
series or under such other indenture or indentures, or
(ii) [no change to this Subsection]
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Company;
[(4)-(8) No change in these Subsections except that the
"or" at the end of Subsection (8) shall be deleted]
(9) the Trustee owns, on the date of default (as determined
in accordance with the provisions of Section 501, but exclusive of any
period of grace or requirement of notice) or on any anniversary of such
default while such default remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate
of 25% or more of the voting securities, or of any class of security, of
any person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraphs (6), (7) or
(8) of this Subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or testamen-
tary trustee of an estate which included them, the provisions of the
preceding sentence shall not apply, for a period of two years from the
date of such acquisition, to the extent that such securities included in
such estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after the dates of any such default and
annually in each succeeding year that the Securities remain in default,
the Trustee shall make a check of its holdings of such securities in any
of the above-mentioned capacities as of such dates. If the Company fails
to make payment in full of the principal of (or premium, if any) or
interest on ny of the Securities when and as the same becomes due and
payable, and such failure continues for 30 days thereafter, the Trustee
shall make a prompt check of its holdings of such securities in any of
the above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the Trustee,
with sole or joint control over such securities vested in it, shall, but
only so long as such failure shall continue, be considered as though
beneficially owned by the Trustee for the purposes of paragraphs (6), (7)
and (8) of this Subsection; or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 613(b), the Trustee shall
be or shall become a creditor of the Company.
For purposes of this Subsection, the term "series of securities"
or "series" means a series, class or group of securities issuable under an
indenture pursuant to whose terms holders of one such series may vote to
direct the Trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another such series; provided, that
"series of securities" or "series" shall not include any series of
securities issuable under an indenture if all such series rank equally and
are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that
the ownership of such percentages of the securities of a person is or is
not necessary or sufficient to constitute direct or indirect control for
the purposes of paragraphs (3) or (7) of this Subsection.
For the purposes of the paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but
shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay monies lent to a person by one or more
banks, trust companies or banking firms, or any certificate of interest
or participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment of
principal shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner or holder
of (A) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any
security which it holds as agent for collection, or as custodian, escrow
agent or depositary, or in any similar representative capacity.
Section 608(d)(1) of the Original Indenture is amended to read in its
entirety as follows:
"(1) The term "underwriter", when used with reference to
the Company, means every person who, within a one-year period prior to the
time as of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection with,
the distribution of any security of the Company outstanding at such time,
or has participated or has had a direct or indirect participation in any
such undertaking, or has participated or has had a participation in the
direct or indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a commission
from an underwriter or dealer not in excess of the usual and customary
distributor's or seller's commission."
Section 1.9. Supplement and Amendment to Section 609 of the
Original Indenture. Section 609 of the Original Indenture is amended to
read in its entirety as follows:
"SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 subject to the
supervision and examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. No obligor
upon the Securities or a Person directly or indirectly controlling,
controlled by, or under common control with such obligor shall serve as
Trustee upon the Securities. 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 1.10. Supplement and Amendment to Section 613 of the Original
Indenture. Section 613 of the Original Indenture is modified by deleting
each reference therein to "four months'" and inserting in its place "three
months'".
Section 1.11. Supplement and Amendment to Section 703 of the Original
Indenture. Section 703(a) of the Original Indenture is amended to read in
its entirety as follows:
"(a) On or before May 15 of each year commencing with the year
1988, the Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report dated as of
the preceding March 15 with respect to any of the following events which
may have occurred within the last 12 months (but if no such event has
occurred within such period, no report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section 608(c);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date of
such report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on any property or funds
held or collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b)(2), (3),
(4) or (6);
(5) any change to the property or funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except action in
respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 602."
Section 1.12. Supplement and Amendment to Section 1107 of the Original
Indenture. Article Eleven of the Original Indenture is modified by adding
the following sentence immediately following the end of Section 1107 of
the Original Indenture:
"If a Global Security is so surrendered, such new Security so issued
shall be a new Global Security."
ARTICLE 2
PARTICULAR REPRESENTATIONS AND COVENANTS OF THE COMPANY
Section 2.1. Authority of the Issuer. The Company represents and
warrants that it is duly authorized under the laws of the State of
Delaware and all other applicable laws to execute, deliver and perform
this First Supplemental Indenture, and all corporate action on its part
required for the execution, delivery and performance of this First
Supplemental Indenture by the Company has been duly and effectively taken.
Section 2.2. Truth of Recitals and Statements. The Company
represents and warrants that the recitals of fact and statements contained
in this First Supplemental Indenture are true and correct in all material
respects, and that the recitals of fact and statements contained in all
certificates and other documents furnished by the Company thereunder will
be true and correct.
ARTICLE 3
CONCERNING THE TRUSTEE
Section 3.1. Acceptance of Trusts. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and
conditions set forth in the Original Indenture and in this First
Supplemental Indenture, to all of which the Company agrees and the Holders
of Securities at any time outstanding by their acceptance thereof agree.
Section 3.2. No Responsibility of Trustee for Recitals, etc. The
recitals and statements contained in this First Supplemental Indenture
shall be taken as the recitals and statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
First Supplemental Indenture.
ARTICLE 4
MISCELLANEOUS PROVISIONS
Section 4.1. Relation to the Indenture. The provisions of this
First Supplemental Indenture shall become effective immediately upon the
execution and delivery hereof. This First Supplemental Indenture and all
the terms and provisions herein contained shall form a part of the
Indenture as fully and with the same effect as if all such terms and
provisions had been set forth in the Original Indenture and each and every
term and condition contained in the Original Indenture shall apply to this
First Supplemental Indenture with the same force and effect as if the same
were in this First Supplemental Indenture set forth in full, with such
omissions, variations and modifications thereof as may be appropriate to
make each such term and condition conform to this First Supplemental
Indenture. The Original Indenture is hereby ratified and confirmed and
shall remain and continue in full force and effect in accordance with the
terms and provisions thereof, as supplemented and amended by this First
Supplemental Indenture, and the Original Indenture and this First
Supplemental Indenture shall be read, taken and construed together as one
instrument.
Section 4.2. Meaning of Terms. Capitalized terms used but not
defined in this First Supplemental Indenture are defined in the Original
Indenture and shall have the meanings specified in the Original Indenture,
unless the context shall otherwise require.
Section 4.3. Counterparts of First Supplemental Indenture. This
First Supplemental Indenture may be executed in several counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one instrument.
IN WITNESS WHEREOF, BROWNING-FERRIS INDUSTRIES, INC., has caused this
First Supplemental Indenture to be executed in its corporate name by its
President or one of its Vice Presidents or its Treasurer and its corporate
seal to be affixed hereunto, and the same to be attested, by its Secretary
or an Assistant Secretary, and NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
has caused this Indenture to be executed in its corporate name by one of
its Vice Presidents and its corporate seal to be affixed hereunto, and the
same to be attested, by one of its Assistant Cashiers or Assistant Trust
Officers, all as of the date and year first written above.
BROWNING-FERRIS INDUSTRIES, INC.
(CORPORATE SEAL)
Attest:
/S/ Eileen B . Schuler By /S/ Henry L. Hirvela
Assistant Secretary Vice President and Treasurer
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
(CORPORATE SEAL)
Attest:
/S/ R. Douglas Milner By /S/ Maryem H. Magee
Trust Officer Assistant Vice President
ACKNOWLEDGEMENT
STATE OF TEXAS
COUNTY OF
BEFORE ME, the undersigned authority, on this day personally appeared,
Henry L. Hirvela, the Vice-President and Treasurer of Browning-Ferris
Industries, Inc., known to me to be the person whose name is subscribed to
the above and foregoing instrument of writing, and acknowledged to me that
he executed the same for the purposes and consideration therein expressed,
in the capacity therein stated, and as the act and deed of said
corporation; and, being by me duly sworn, did depose and say that he is
Vice-President and Treasurer of said corporation, that he knows the seal
of said corporation, that the seal affixed to said instrument is such
corporate seal, that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 11th day of January,
1994.
/S/ Lois Haghpeykar
Notary Public in and for
The State of Texas
My Commission Expires:
November 13, 1997
ACKNOWLEDGEMENT
STATE OF TEXAS
COUNTY OF
BEFORE ME, the undersigned authority, on this day personally appeared
Maryem H. Magee, an Assistant Vice President of NationsBank of Texas,
National Association, known to me to be the person whose name is
subscribed to the above and foregoing instrument of writing, and
acknowledged to me that she executed the same for the purposes and
consideration therein expressed, in the capacity therein stated, and as
the act and deed of said bank; and, being by me duly sworn, did depose
and say that she is Assistant Vice President of said bank, that she knows
the seal of said bank, that the seal affixed to said instrument is such
corporate seal, that it was so affixed by authority of the Board of
Directors of said bank, and that she signed her name thereto by like
authority.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 11th day of January,
1994.
/S/ Linda M. Grapa
Notary Public in and for
The State of Texas
My Commission Expires:
July 14, 1995
FULBRIGHT & JAWORSKI
L.L.P.
A Registered Limited Liability Partnership Houston
1301 McKinney, Suite 5100 Washington, D.C.
Houston, Texas 77010-3095 Austin
San Antonio
Dallas
Telephone: 713/651-5151 New York
Telex: 76-2829 Los Angeles
Facsimile: 713/651-5246 London
Zurich
Hong Kong
January 11, 1994
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Gentlemen:
We have acted as counsel for Browning-Ferris Industries, Inc., a Delaware
corporation (the "Company"), in connection with its filing with the Securities
and Exchange Commission (the "Commission") of a Registration Statement on
Form S-3 (the "Registration Statement") with respect to the Company's
(i) unsecured debt securities ("Debt Securities"), (ii) shares of
preferred stock, without par value ("Preferred Stock"), in one or more
series, (iii) shares of common stock, $.16 2/3 par value per share, including
the preferred stock purchase rights associated therewith (collectively,
"Common Stock"), and (iv) warrants to purchase Debt Securities, Preferred
Stock or Common Stock ("Warrants" and, together with the Debt Securities,
the Preferred Stock and the Common Stock, the "Securities"), to be issued
from time to time pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act"), for an aggregate initial offering price not
to exceed $700,000,000.
We have examined (i) the Restated Certificate of Incorporation and By-Laws
of the Company, each as amended to date, (ii) the Restated Indenture dated
as of September 1, 1991, between the Company and Texas Commerce Bank
National Association, as trustee (the "Senior Debt Indenture"), pursuant to
which Debt Securities may be issued, (iii) the Indenture dated as of
August 1, 1987, between the Company and NationsBank of Texas, National
Association, as trustee (successor trustee to First RepublicBank Houston,
National Association), as amended by a First Supplemental Indenture in the
form filed as an exhibit to the Registration Statement (the "Subordinated
Debt Indenture"), pursuant to which Debt Securities may be issued, (iv) the
Registration Statement, and (v) such certificates, statutes and other
instruments and documents as we considered appropriate for purposes of
the opinions hereafter expressed.
In connection with this opinion, we have assumed that (i) the Registration
Statement, and any amendments thereto (including post-effective amendments),
will have become effective; (ii) a Prospectus Supplement will have been
prepared and filed with the Commission describing the Securities offered
thereby; (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in
the Registration Statement and the appropriate Prospectus Supplement;
(iv) a definitive purchase, underwriting or similar agreement with respect
to any Securities offered will have been duly authorized and validly
executed and delivered by the Company and the other parties thereto: and
(v) any Securities issuable upon conversion, exchange or exercise of any
Security being offered will be duly authorized, created and, if appropriate,
reserved for issuance upon such conversion, exchange or exercise.
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to shares of Common Stock, when (i) the Board of Directors
of the Company or, to the extent permitted by Section 141(c) of the General
Corporation Law of the State of Delaware, a duly constituted and acting
committee thereof (such Board of Directors or committee being referred to
herein as the "Board"), has taken all necessary corporate action to approve
the issuance of and the terms of the offering of the shares of Common Stock
and related matters; and (ii) certificates representing the shares of Common
Stock have been duly executed, countersigned, registered and delivered either
(a) in accordance with the applicable definitive purchase, underwriting or
similar agreement approved by the Board upon payment of the consideration
therefor (not less than the par value of the Common Stock) provided for
therein, or (b) upon conversion, exchange or exercise of any other Security
in accordance with the terms of such Security or the instrument governing
such Security providing for such conversion, exchange or exercise as approved
by the Board, for the consideration approved by the Board (not less than the
par value of the Common Stock), the shares of Common Stock will be duly
authorized, validly issued, fully paid and nonassessable.
2. With respect to shares of Preferred Stock, when (i) the Board has taken
all necessary corporate action to approve the issuance and terms of the shares
of Preferred Stock, the terms of the offering thereof and related matters,
including the adoption of a Certificate of Designation relating to such
Preferred Stock (a "Certificate") and the filing of such Certificate with the
Secretary of State of the State of Delaware; and (ii) certificates representing
the shares of Preferred Stock have been duly executed, countersigned,
registered and delivered either (a) in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the Board
upon payment of the consideration therefor provided for therein, or (b) upon
exercise of any other Security, in accordance with the terms of such Security
or the instrument governing such Security providing for such exercise as
approved by the Board, for the consideration approved by the Board, the
shares of Preferred Stock will be duly authorized, validly issued, fully paid
and nonassessable.
3. With respect to Debt Securities to be issued under the Senior Debt
Indenture, when (i) the Senior Debt Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended; (ii) the Board has taken all
necessary corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters; and (iii)
such Debt Securities have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Senior Debt Indenture
and either (a) in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment of
the consideration therefor provided for therein, or (b) upon exercise of
any other Security, in accordance with the terms of such Security or the
instrument governing such Security providing for such exercise as approved
by the Board, for the consideration approved by the Board, such Debt
Securities will be legally issued and will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as such enforcement is subject to any applicable
bankruptcy, insolvency, reorganization or other law relating to or affecting
creditors' rights generally and general principles of equity.
4. With respect to Debt Securities to be issued under the Subordinated Debt
Indenture, when (i) the First Supplemental Indenture thereto shall have been
duly authorized and validly executed and delivered by the Company and the
trustee; (ii) the Subordinated Debt Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended; (iii) the Board has taken all
necessary corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters; and
(iv) such Debt Securities have been duly executed, authenticated, issued
and delivered in accordance with the provisions of the Subordinated Debt
Indenture and either (a) in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Board upon
payment of the consideration therefor provided for therein, or (b) upon
exercise of any other Security, in accordance with the terms of such
Security or the instrument governing such Security providing for such
exercise as approved by the Board, for the consideration approved by the Board,
such Debt Securities will be legally issued and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as such enforcement is subject to any
applicable bankruptcy, insolvency, reorganization or other law relating to
or affecting creditors' rights generally and general principles of equity.
5. With respect to the Warrants, when (i) the Board has taken all necessary
corporate action to approve the creation of and the issuance and terms of
the Warrants, the terms of the offering thereof and related matters;
(ii) the warrant agreement or agreements relating to the Warrants have been
duly authorized and validly executed and delivered by the Company and the
warrant agent appointed by the Company; and (iii) the Warrants or certificates
representing the Warrants have been duly executed, countersigned, registered
and delivered in accordance with the appropriate warrant agreement or
agreements and the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor
provided for therein, the Warrants will be duly authorized and validly issued.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statements made with respect to us under
the caption "Legal Opinions" in the Prospectus included as part of the
Registration Statement.
Very truly yours,
Fulbright & Jaworski L.L.P.
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated
December 7, 1993, included in Browning-Ferris Industries, Inc.'s Annual
Report on Form 10-K for the year ended September 30, 1993, and to all
references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN & CO.
Houston, Texas
January 11, 1994
---------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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) [Not Applicable.]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Not applicable
(Jurisdiction of incorporation or organization
if not a U.S. national bank)
74-0800980
(I.R.S. Employer Identification No.)
712 Main Street, Houston, Texas 77002
(Address of principal executive offices) (Zip code)
Carol Kirkland, 712 Main Street, 26th Floor,
Houston, Texas 77002, (713) 546-2449
(Name, address and telephone number of agent for service)
Browning-Ferris Industries, Inc.
(Exact name of obligor as specified in its charter)
Delaware 74-1673682
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
757 N. Eldridge, Houston, Texas 77079
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of the indenture securities)
-----------------------------------------------------------------
Item 1. General Information.
Furnish the following information as to the trustee--
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D. C.
Federal Deposit Insurance Corporation, Washington, D. C.
The Board of Governors of the Federal Reserve System, Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
As of January 7, 1994
No such affiliation exists.
See Note, Page 9 hereof.
Item 3. Voting Securities of the trustee.
Furnish the following information as to each class of voting securities of
the trustee.
As of January 7, 1994
Column A Column B
Title of Class Amount Outstanding
-------------- ------------------
1Texas Commerce Bank 5,000,000
National Association Common Stock
- ------
1These outstanding securities are issued pursuant to the same indenture under
which any new securities will be issued, all of which are unsecured and are
equal and ratable.
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following
information:
As of January 7, 1994
(a) Title of the securities outstanding under each such other indenture.
$100,000,000 Browning-Ferris Industries, Inc. 9 1/4%
Debentures due 5/1/2021
$100,000,000 Browning-Ferries Industries, Inc. 8 1/2%
Sinking Fund Debentures due 1/15/2017
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of
the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities
will rank as compared with the securities issued under such other
indenture.
Item 5. Interlocking directorates and similar relationships with obligor or
underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
As of January 7, 1994
No such relationship exists.
See Note, Page 9 hereof.
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner and executive
officer of the obligor.
As of January 7, 1994
Based upon an examination of the books and records of the trustee,
inquiries made by the trustee and information furnished to the trustee
by the obligor, voting securities of the trustee, owned beneficially,
directly or indirectly, by the obligor and its directors, partners
and executive officers, taken as a group, do not exceed 1% of the
outstanding voting securities of the trustee.
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter.
As of January 7, 1994
No single underwriter, its directors, partners and executive officers,
taken as a group, owned beneficially, directly or indirectly, in
excess of 1% of the outstanding voting securities of the trustee.
See Note, Page 9 hereof.
Item 8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee.
As of January 7, 1994
No such securities were so owned or held.
See Note, Page 9 hereof.
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee.
As of January 7, 1994
The trustee did not so own or hold in excess of 1% of any class of
security outstanding of any such person.
See Note, Page 9 hereof.
Item 10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge
of the trustee (1) owns 10% or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of January 7, 1994
No such securities were so owned or held.
See Note, Page 9 hereof.
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50% or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge
of the trustee, owns 50% or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such
person any of which are so owned or held by the trustee.
As of January 7, 1994
No such securities were so owned or held.
See Note, Page 9 hereof.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions to the Form T-1, if the obligor is
indebted to the trustee, furnish the following information: nature of
indebtedness, amount outstanding and date due.
As of January 7, 1994.
The obligor has a $39,000,000 revolving line of credit with the trustee due
April 1, 1994, on which no debt is presently outstanding.
See Note, Page 9 hereof.
Item 13. Defaults by the Obligor.
(c) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
As of January 7, 1994.
No such default exists or has existed.
(d) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is trustee for
more than one outstanding series of securities under the indenture,
state whether there has been a default under any such indenture or
series, identify the indenture or series affected, and explain the
nature of any such default.
As of January 7, 1994.
There has been no default of which the Trustee has knowledge.
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
As of January 7, 1994.
No such affiliation exists.
See Note, Page 9 hereof.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
* 1. A copy of the articles of association of the trustee as now
in effect.
** 2. A copy of the certificate of authority of the trustee to
commence business.
** 3. A copy of the certificate of authorization of the trustee to
exercise corporate trust powers issued by the Board of Governors of
the Federal Reserve System under date of January 21, 1948.
*** 4. A copy of the existing bylaws of the trustee.
5. A copy of each indenture referred to in Item 4, if the
obligor is in default. Not Applicable.
6. The consent of the United States institutional trustees
required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
8. A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to
be qualified under the Act. Not applicable.
9. Foreign trustees are required to file a consent to service of
process on Form F-X. Not applicable.
* Incorporated by reference to Exhibit bearing the same Exhibit number
submitted with the Form T-1 of Texas Commerce Bank National Association
with respect to File No. 33-51417.
** Incorporated by reference to Exhibit bearing the same Exhibit number
submitted with the Form T-1 of Texas National Bank of Commerce of
Houston with respect to File No. 2-24599.
***- Incorporated by reference to Exhibit bearing the same Exhibit number
submitted with the Form T-1 of Texas Commerce Bank National Association
with respect to File No. 33-0286.
[Remainder of Page Intentionally Left Blank]
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee,
Texas Commerce Bank National Association, a national banking association
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Houston, and State
of Texas, on the 10th day of January, 1994.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Trustee)
By:_________________________________
Name:_______________________________
Title:______________________________
NOTE
The answers to this statement insofar as such answers relate to what persons
have been underwriters for any securities of the obligor within three years
prior to the date of filing this statement or will be the underwriters for
the indenture securities, or are owners of 10% or more of the voting securities
of the obligor, or are owners of 50% or more of the voting securities of the
obligor or are affiliates, and the amounts and percentages of such securities,
if any, owned by each of the foregoing, respectively, are based upon
information furnished to the trustee by the obligor and the underwriter.
While the trustee has no reason to doubt the accuracy of any such information,
it cannot accept any responsibility therefor. Accordingly, the trustee
disclaims responsibility as to the accuracy and completeness of the information
received from the obligor and the underwriter relating to the answers to
items 2, 5, 7, 8, 9, 10, 11, 12 and 14.
Inasmuch as this statement is filed prior to the final determination of all
underwriters of the indenture securities, the answers to items 5, 7, 9 and 14
are based on incomplete information, but may be considered as correct unless
additional information is furnished by amendment.
Exhibit 6
Securities & Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Indenture dated as of
September 1, 1991, as supplemented from time to time by
supplemental indentures thereto, between Browning-Ferris
Industries, Inc. and Texas Commerce Bank National Association, as
Trustee, entered into in connection with the issuance of its Debt
Securities.
In accordance with Section 321(b) of the Trust Indenture Act of
1939, the undersigned hereby consents that reports of examinations
of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to
the Securities & Exchange Commission upon its request therefor.
Very truly yours,
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:__________________________
Name:________________________
Title:_______________________
19922-d.asc
<TABLE>
<CAPTION>
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RI-1
HOUSTON, TX 77252 (3)
FDIC CERTIFICATE NUMBER: 03263
CONSOLIDATED REPORT OF INCOME FOR THE PERIOD:
January 1, 1993 - September 30, 1993
ALL REPORT OF INCOME SCHEDULES ARE TO BE REPORTED ON A CALENDAR YEAR-TO-DATE BASIS
IN THOUSANDS OF DOLLARS.
<S> <C> <C> <C>
|------------|
SCHEDULE RI-INCOME STATEMENT | I480 | (---
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RIAD BIL Mil Thou |
--------------------------------------------------------------------------------------|------------------|
1. INTEREST INCOME: |//////////////////|
a. INTEREST AND FEE INCOME ON LOANS: |//////////////////|
(1) IN DOMESTIC OFFICES: |//////////////////|
(a) LOANS SECURED BY REAL ESTATE..............................................|4011 84,977 | 1.a.(1)(a)
(b) LOANS TO DEPOSITORY INSTITUTIONS..........................................|4019 306 | 1.a.(1)(b)
(c) LOANS TO FINANCE AGRICULTURAL PRODUCTION AND OTHER LOANS |//////////////////|
TO FARMERS................................................................|4024 1,960 | 1.a.(1)(c)
(d) COMMERCIAL AND INDUSTRIAL LOANS...........................................|4012 109,439 | 1.a.(1)(d)
(e) ACCEPTANCES OF OTHER BANKS................................................|4026 17 | 1.a.(1)(e)
(f) LOANS TO INDIVIDUALS FOR HOUSEHOLD, FAMILY, AND |//////////////////|
OTHER PERSONAL EXPENDITURES: |//////////////////|
(1) CREDIT CARDS AND RELATED PLANS.........................................|4054 7,122 | 1.a.(1)(f)(1)
(2) OTHER..................................................................|4055 43,328 | 1.a.(1)(f)(2)
(g) LOANS TO FOREIGN GOVERNMENTS AND OFFICIAL INSTITUTIONS....................|4056 13,404 | 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 17,875 | 1.a.(1)(h)(2)
(I) ALL OTHER LOANS IN DOMESTIC OFFICES.......................................|4058 56,390 | 1.a.(1)(i)
(2) IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBFS................|4059 12,161 | 1.a.(2)
b. INCOME FROM LEASE FINANCING RECEIVABLES: |//////////////////|
(1) TAXABLE LEASES...............................................................|4505 14,124 | 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 51 | 1.c.(1)
(2) IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBFs................|4106 289 | 1.c.(2)
d. INTEREST AND DIVIDEND INCOME ON SECURITIES: |//////////////////|
(1) U.S. TREASURY SECURITIES AND U.S. GOVERNMENT AGENCY AND |//////////////////|
CORPORATION OBLIGATIONS......................................................|4027 124,176 | 1.d.(1)
(2) SECURITIES ISSUED BY STATES AND POLITICAL SUBDIVISIONS |//////////////////|
IN THE U.S.: |//////////////////|
(a) TAXABLE SECURITIES........................................................|4506 1 | 1.d.(2)(a)
(b) TAX-EXEMPT SECURITIES.....................................................|4507 75 | 1.d.(2)(b)
(3) OTHER DOMESTIC DEBT SECURITIES ..............................................|3657 20,594 | 1.d.(3)
(4) FOREIGN DEBT SECURITIES .....................................................|3658 27 | 1.d.(4)
(5) EQUITY SECURITIES (INCLUDING INVESTMENTS IN MUTUAL FUNDS)....................|3659 597 | 1.d.(5)
e. INTEREST INCOME FROM ASSETS HELD IN TRADING ACCOUNTS............................|4069 2,339 | 1.e.
|------------------|
---------------
(1) INCLUDES INTEREST INCOME ON TIME CERTIFICATES OF DEPOSIT NOT HELD IN TRADING ACCOUNTS.
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RI-2
HOUSTON, TX 77252 (4)
SCHEDULE RI-CONTINUED
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
DOLLAR AMOUNTS IN THOUSANDS |RIAD Bil Mil Thou |
-----------------------------------------------------------------------------|------------------|
1. INTEREST INCOME (CONTINUED) |//////////////////|
f. INTEREST INCOME ON FEDERAL FUNDS SOLD AND SECURITIES PURCHASED |//////////////////|
UNDER AGREEMENTS TO RESELL IN DOMESTIC OFFICES OF THE BANK AND OF |//////////////////|
ITS EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBFs.......................|4020 20,934 | 1.f.
g. TOTAL INTEREST INCOME (SUM OF ITEMS 1.a. THROUGH 1.f.).................|4107 530,186 | 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 11,156 | 2.a.(1)(a)
(b) NONTRANSACTION ACCOUNTS: |//////////////////|
(1) MONEY MARKET DEPOSIT ACCOUNTS (MMDAs).........................|4509 10,881 | 2.a.(1)(b)(1)
(2) OTHER SAVINGS DEPOSITS........................................|4511 23,866 | 2.a.(1)(b)(2)
(3) TIME CERTIFICATES OF DEPOSIT OF $100,000 OR MORE..............|4174 8,577 | 2.a.(1)(b)(3)
(4) ALL OTHER TIME DEPOSITS.......................................|4512 31,873 | 2.a.(1)(b)(4)
(2) INTEREST ON DEPOSITS IN FOREIGN OFFICES, EDGE AND AGREEMENT |//////////////////|
SUBSIDIARIES, AND IBFs..............................................|4172 7,032 | 2.a.(2)
b. EXPENSE OF FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER |//////////////////|
AGREEMENTS TO REPURCHASE IN DOMESTIC OFFICES OF THE BANK AND OF |//////////////////|
ITS EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBFs.......................|4180 15,396 | 2.b.
c. INTEREST ON DEMAND NOTES ISSUED TO THE U.S. TREASURY AND ON |//////////////////|
OTHER BORROWED MONEY...................................................|4185 15,952 | 2.c.
d. INTEREST ON MORTGAGE INDEBTEDNESS AND OBLIGATIONS UNDER |//////////////////|
CAPITALIZED LEASES.....................................................|4072 610 | 2.d.
e. INTEREST ON SUBORDINATED NOTES AND DEBENTURES .........................|4200 15,833 | 2.e.
f. TOTAL INTEREST EXPENSE (SUM OF ITEMS 2.a. THROUGH 2.e.)................|4073 141,176 | 2.f--------------------|
3. NET INTEREST INCOME (ITEM 1.g. MINUS 2.f.)...............................|//////////////////|4074 389,010 | 3.
4. PROVISIONS: |//////////////////|------------------------|
a. PROVISION FOR LOAN AND LEASE LOSSES...................................|//////////////////|4230 (2,290)| 4.a
b. PROVISION FOR ALLOCATED TRANSFER RISK.................................|//////////////////|4243 2,290 | 4.b
5. NONINTEREST INCOME: |//////////////////|------------------------|
a. INCOME FROM FIDUCIARY ACTIVITIES......................................|4070 45,587 | 5.a
b. SERVICE CHARGES ON DEPOSIT ACCOUNTS IN DOMESTIC OFFICES...............|4080 63,200 | 5.b
c. TRADING GAINS (LOSSES) AND FEES FROM FOREIGN EXCHANGE |//////////////////|
TRANSACTIONS..........................................................|4075 8,025 | 5.c
d. OTHER FOREIGN TRANSACTION GAINS (LOSSES)..............................|4076 1 | 5.d
e. GAINS (LOSSES) AND FEES FROM ASSETS HELD IN TRADING ACCOUNTS..........|4077 10,873 | 5.e
f. OTHER NONINTEREST INCOME: |//////////////////
(1) OTHER FEE INCOME ..................................................|5407 61,438 | 5.f.(1)
(2) ALL OTHER NONINTEREST INCOME * ....................................|5408 48,827 | 5.f.(2)----------------|
g. TOTAL NONINTEREST INCOME (SUM OF 5.a. THROUGH 5.f.)...................|//////////////////|4079 237,951 | 5.g
6. GAINS (LOSSES) ON SECURITIES NOT HELD IN TRADING ACCOUNTS................|//////////////////|4091 0 | 6.
7. NONINTEREST EXPENSE: |//////////////////|------------------------|
a. SALARIES AND EMPLOYEE BENEFITS........................................|4135 168,447 | 7.a
b. EXPENSES OF PREMISES AND FIXED ASSETS (NET OF RENTAL INCOME) |//////////////////|
(EXCLUDING SALARIES AND EMPLOYEE BENEFITS AND MORTGAGE INTEREST)..... |4217 45,378 | 7.b
c. OTHER NONINTEREST EXPENSE * ...........................................|4092 195,345 | 7.c--------------------|
d. TOTAL NONINTEREST EXPENSE (SUM OF ITEMS 7.a. THROUGH 7.c.).............|//////////////////|4093 409,170 | 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, AND 7.d.)...|//////////////////|4301 217,791 | 8.
9. APPLICABLE INCOME TAXES (ON ITEM 8)......................................|//////////////////|4302 78,379 | 9.
10. INCOME (LOSS) BEFORE EXTRAORDINARY ITEMS AND OTHER ADJUSTMENTS |//////////////////|------------------------|
(ITEM 8 MINUS ITEM 9)....................................................|//////////////////|4300 139,412 | 10.
11. EXTRAORDINARY ITEMS AND OTHER ADJUSTMENTS: |//////////////////|------------------------|
a. EXTRAORDINARY ITEMS AND OTHER ADJUSTMENTS, GROSS OF INCOME TAXES * ...|4310 (3,892)| 11.a
b. APPLICABLE INCOME TAXES (ON ITEM 11.a.) * ............................|4315 (3,892)| 11.b
c. EXTRAORDINARY ITEMS AND OTHER ADJUSTMENTS, NET OF INCOME TAXES |//////////////////|------------------------|
(ITEM 11.a. MINUS 11.b.)...............................................|//////////////////|4320 0 | 11.c
12. NET INCOME (LOSS) (SUM OF ITEMS 10 AND 11.c.)............................|//////////////////|4340 139,412 | 12.
--------------------- |------------------|------------------------|
* DESCRIBE ON SCHEDULE RI-E-EXPLANATIONS
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RI-3
HOUSTON, TX 77252 (5)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE RI-CONTINUED
<S> <C> <C> <C>
|------------|
|Year-to-date|
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RIAD Bil Mil Thou |
-------------------------------------------------------------------------------------|------------------|
MEMORANDA |//////////////////|
1. INTEREST EXPENSE INCURRED TO CARRY TAX-EXEMPT SECURITIES, LOANS, AND LEASES |//////////////////|
ACQUIRED AFTER AUGUST 7, 1986, THAT IS NOT DEDUCTIBLE FOR FEDERAL INCOME TAX |//////////////////|
PURPOSES..........................................................................|4513 450 | M.1.
2. NOT APPLICABLE................................................................. |//////////////////|
3. ESTIMATED FOREIGN TAX CREDIT INCLUDED IN APPLICABLE INCOME TAXES, |//////////////////|
ITEMS 9 AND 11.B ABOVE............................................................|4309 0 | M.3.
4. TO BE COMPLETED ONLY BY BANKS WITH $1 BILLION OR MORE IN TOTAL ASSETS: |//////////////////|
TAXABLE EQUIVALENT ADJUSTMENT TO "INCOME (LOSS) BEFORE INCOME TAXES AND |//////////////////|
EXTRAORDINARY ITEMS AND OTHER ADJUSTMENTS" (ITEM 8 ABOVE).........................|1244 0 | M.4.
5. NUMBER OF FULL-TIME EQUIVALENT EMPLOYEES ON PAYROLL AT END OF CURRENT PERIOD |//////////////////|
(ROUND TO NEAREST WHOLE NUMBER)...................................................|4150 5,556 | M.5.
|------------------|
SCHEDULE RI-A - CHANGES IN EQUITY CAPITAL
INDICATE DECREASES AND LOSSES IN PARENTHESES.
|------------|
| I483 | (---
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RIAD Bil Mil Thou |
-------------------------------------------------------------------------------------|------------------|
1. TOTAL EQUITY CAPITAL ORIGINALLY REPORTED IN THE DECEMBER 31, 1992, REPORTS OF |//////////////////|
CONDITION AND INCOME.............................................................|3215 715,012 | 1.
2. EQUITY CAPITAL ADJUSTMENTS FROM AMENDED REPORT OF INCOME, NET * .................|3216 0 | 2.
3. AMENDED BALANCE END OF PREVIOUS CALENDAR YEAR (SUM OF ITEMS 1 AND 2).............|3217 715,012 | 3.
4. NET INCOME (LOSS) (MUST EQUAL SCHEDULE RI, ITEM 12)..............................|4340 139,412 | 4.
5. SALE, CONVERSION, ACQUISITION, OR RETIREMENT OF CAPITAL STOCK, NET...............|4346 184,000 | 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 35,000 | 8.
9. CUMULATIVE EFFECT OF CHANGES IN ACCOUNTING PRINCIPLES FROM PRIOR YEARS * |//////////////////|
(SEE INSTRUCTIONS FOR THIS SCHEDULE) .............................................|4411 0 | 9.
10. CORRECTIONS OF MATERIAL ACCOUNTING ERRORS FROM PRIOR YEARS * |//////////////////|
(SEE INSTRUCTIONS FOR THIS SCHEDULE) .............................................|4412 0 | 10.
11. CHANGE IN NET UNREALIZED LOSS ON MARKETABLE EQUITY SECURITIES....................|4413 0 | 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 11,000 | 13.
14. TOTAL EQUITY CAPITAL END OF CURRENT PERIOD (SUM OF ITEMS 3 THROUGH 13) |//////////////////|
(MUST EQUAL SCHEDULE RC, ITEM 28)................................................|3210 1,014,424 | 14.
|------------------|
---------------------
* DESCRIBE ON SCHEDULE RI-E-EXPLANATIONS
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RI-4
HOUSTON, TX 77252 (6)
|------------|
SCHEDULE RI-B - CHARGE-OFFS AND RECOVERIES AND CHANGES IN ALLOWANCE | I486 | (--
FOR LOAN AND LEASE LOSSES |-----------------------------------|
PART I. CHARGE-OFFS AND RECOVERIES ON LOANS AND LEASES | (Column A) | (Column B) |
| Charge-offs | Recoveries |
PART I EXCLUDES CHARGE-OFFS AND RECOVERIES THROUGH THE |-----------------|-----------------|
ALLOCATED TRANSFER RISK RESERVE. | CALENDAR YEAR-TO-DATE |
|-----------------|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RIAD Bil Mil Thou|RIAD Bil Mil Thou|
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
--------------------------------------------------------------------------------|-----------------|-----------------|
1. LOANS SECURED BY REAL ESTATE: |/////////////////|/////////////////|
a. TO U.S. ADDRESSEES (DOMICILE).............................................|4651 3,581 |4661 423 | 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 3,058 |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 10,484 |4617 1,780 | 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 738 |4666 188 | 5.a.
b. OTHER (INCLUDES SINGLE PAYMENT, INSTALLMENT, AND ALL STUDENT LOANS).......|4657 3,334 |4667 701 | 5.b.
6. LOANS TO FOREIGN GOVERNMENTS AND OFFICIAL INSTITUTIONS.......................|4643 680 |4627 1,394 | 6.
7. ALL OTHER LOANS..............................................................|4644 590 |4628 396 | 7.
8. LEASE FINANCING RECEIVABLES: |/////////////////|/////////////////|
a. OF U.S. ADDRESSEES (DOMICILE).............................................|4658 0 |4668 0 | 8.a.
b. OF NON-U.S. ADDRESSEES (DOMICILE).........................................|4659 2,020 |4669 0 | 8.b.
9. TOTAL (SUM OF ITEMS 1 THROUGH 8).............................................|4635 24,485 |4605 4,882 | 9.
|-----------------------------------|
|-----------------------------------|
| Cumulative | Cumulative |
| Charge-Offs | Recoveries |
| Jan. 1, 1986 | Jan. 1, 1986 |
MEMORANDUM | through | through |
| Dec. 31, 1989 | Report Date
DOLLAR AMOUNTS IN THOUSANDS |-----------------|-----------------|
--------------------------------------------------------------------------------| Bil Mil Thou| Bil Mil Thou|
TO BE COMPLETED BY NATIONAL BANKS ONLY |/////////////////|/////////////////|
1. CHARGE-OFFS AND RECOVERIES OF SPECIAL-CATEGORY LOANS, AS DEFINED FOR THIS |/////////////////|/////////////////|
CALL REPORT BY THE COMPTROLLER OF THE CURRENCY...............................|/////////////////|4784 11,225 | M.1.
|-----------------|-----------------|
|-----------------------------------|
| (Column A) | (Column B) |
| Charge-offs | Recoveries |
|-----------------|-----------------|
| CALENDAR YEAR-TO-DATE |
MEMORANDUM ITEMS 2 AND 3 ARE TO BE COMPLETED BY ALL BANKS. |-----------------|-----------------|
|RIAD Bil Mil Thou|RIAD Bil Mil Thou|
2. LOANS TO FINANCE COMMERCIAL REAL ESTATE, CONSTRUCTION, AND LAND DEVELOPMENT |-----------------|-----------------|
ACTIVITIES (NOT SECURED BY REAL ESTATE) INCLUDED IN SCHEDULE RI-B, |/////////////////|/////////////////|
PART I, ITEMS 4 AND 7, ABOVE.................................................|5409 0 |5410 0 | M.2.
3. LOANS SECURED BY REAL ESTATE IN DOMESTIC OFFICES (INCLUDED IN SCHEDULE |/////////////////|/////////////////|
RI-B, PART I, ITEM 1, ABOVE): |/////////////////|/////////////////|
a. CONSTRUCTION AND LAND DEVELOPMENT.........................................|3582 626 |3583 240 | M.3.a.
b. SECURED BY FARMLAND.......................................................|3584 0 |3585 0 | M.3.b.
c. SECURED BY 1-4 FAMILY RESIDENTIAL PROPERTIES: |/////////////////|/////////////////|
(1) REVOLVING, OPEN-END LOANS SECURED BY 1-4 FAMILY RESIDENTIAL |/////////////////|/////////////////|
PROPERTIES AND EXTENDED UNDER LINES OF CREDIT.............................|5411 0 |5412 0 | M.3.c.(1)
(2) ALL OTHER LOANS SECURED BY 1-4 FAMILY RESIDENTIAL PROPERTIES..........|5413 489 |5414 67 | M.3.c.(1)
d. SECURED BY MULTIFAMILY (5 OR MORE) RESIDENTIAL PROPERTIES.................|3588 0 |3589 0 | M.3.d.
e. SECURED BY NONFARM NONRESIDENTIAL PROPERTIES..............................|3590 2,466 |3591 116 | M.3.e.
|-----------------|-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RI-5
HOUSTON, TX 77252 (7)
FDIC CERTIFICATE NUMBER: 03263
SCHEDULE RI-B -- CONTINUED |-----------------------------------|
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
| (Column A) | (Column B) |
PART II. CHANGES IN ALLOWANCE FOR LOAN AND LEASE LOSSES | Allowance For | Allocated |
AND IN ALLOCATED TRANSFER RISK RESERVE | Loan and Lease | Transfer Risk |
| Losses | Reserve |
|-----------------|-----------------|
DOLLAR AMOUNTS IN THOUSANDS | Bil Mil Thou| Bil Mil Thou|
--------------------------------------------------------------------------------|-----------------|-----------------|
1. BALANCE ORIGINALLY REPORTED IN DECEMBER 31, 1992, REPORTS OF |/////////////////|/////////////////|
CONDITION AND INCOME ........................................................|3124 205,018 |3131 0 | 1.
2. RECOVERIES (COLUMN A MUST EQUAL PART I, ITEM 9, COLUMN B ABOVE)..............|4605 4,882 |3132 0 | 2.
3. LESS: CHARGE-OFFS (COLUMN A MUST EQUAL PART I, ITEM 9, COLUMN A ABOVE)......|4635 24,485 |3133 0 | 3.
4. PROVISION (COLUMN A MUST EQUAL SCHEDULE RI, ITEM 4.a.; COLUMN B |/////////////////|/////////////////|
MUST EQUAL SCHEDULE RI, ITEM 4.b.)...........................................|4230 (2,290)|4243 2,290 | 4.
5. ADJUSTMENTS * (SEE INSTRUCTIONS FOR THIS SCHEDULE)...........................|4815 10,649 |3134 0 | 5.
6. BALANCE END OF CURRENT PERIOD (SUM OF ITEMS 1 THROUGH 5) |/////////////////|/////////////////|
(COLUMN A MUST EQUAL SCHEDULE RC, ITEM 4.b.; COLUMN B MUST EQUAL |/////////////////|/////////////////|
SCHEDULE RC, ITEM 4.c.)......................................................|3123 193,774 |3128 2,290 | 6.
--------------------- |-----------------------------------|
* DESCRIBE ON SCHEDULE RI-E-EXPLANATIONS
SCHEDULE RI-C - APPLICABLE INCOME TAXES BY TAXING AUTHORITY
|------------|
SCHEDULE RI-C IS TO BE REPORTED WITH THE DECEMBER REPORT OF INCOME. | I489 | (--
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RIAD Bil Mil Thou|
--------------------------------------------------------------------------------------------------|-----------------|
1. FEDERAL........................................................................................|4780 0 | 1.
2. STATE AND LOCAL................................................................................|4790 0 | 2.
3. FOREIGN........................................................................................|4795 0 | 3.
4. TOTAL (SUM OF ITEMS 1 THROUGH 3)(MUST EQUAL SUM OF SCHEDULES RI, ITEMS 9 AND 11.b).............|4770 0 | 4.
5. DEFERRED PORTION OF ITEM 4.....................................................................|4772 0 | 5.
|-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RI-6
HOUSTON, TX 77252 (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 | (---
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RIAD Bil Mil Thou |
----------------------------------------------------------------------------------------------------|------------------|
1. INTEREST INCOME AND EXPENSE BOOKED AT FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, |//////////////////|
AND IBFs: |//////////////////|
a. INTEREST INCOME BOOKED........................................................................|4837 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.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
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.
|------------------|
MEMORANDA |------------------|
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.
|------------------|
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
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RIAD Bil Mil Thou |
----------------------------------------------------------------------------------------------------|------------------|
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.
|------------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RI-7
HOUSTON, TX 77252 (9)
FDIC CERTIFICATE NUMBER: 03263
SCHEDULE RI-E EXPLANATIONS
SCHEDULE RI-E IS TO BE COMPLETED EACH QUARTER ON A CALENDAR YEAR-TO-DATE BASIS.
DETAIL ALL ADJUSTMENTS IN SCHEDULES RI-A AND RI-B, ALL EXTRAORDINARY ITEMS AND
OTHER ADJUSTMENTS IN SCHEDULE RI, AND ALL SIGNIFICANT ITEMS OF OTHER NONINTEREST INCOME AND
OTHER NONINTEREST EXPENSE IN SCHEDULE RI. (SEE INSTRUCTIONS FOR DETAILS.)
|-----------|
| I495 |
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS|RIAD Bil Mil Thou|
-------------------------------------------------------------------------------|-----------------|
1. ALL OTHER NONINTEREST INCOME (FROM SCHEDULE RI, ITEM 5.f(2)) |/////////////////|
REPORT AMOUNTS THAT EXCEED 10% OF SCHEDULE RI, ITEM 5.f(2): |/////////////////|
a. NET GAINS ON OTHER REAL ESTATE OWNED.....................................|5415 0 | 1.a.
b. NET GAINS ON SALES OF LOANS .............................................|5416 0 | 1.b.
c. NET GAINS ON SALES OF PREMISES AND FIXED ASSETS .........................|5417 0 | 1.c.
ITEMIZE AND DESCRIBE THE THREE LARGEST AMOUNTS THAT EXCEED 10% OF |/////////////////|
SCHEDULE RI, ITEM 5.f.(2): |/////////////////|
d.|4461| Interbank Contract Services |4461 26,321 | 1.d.
e.|4462| Data Processing Charges |4462 8,278 | 1.e.
f.|4463| |4463 0 | 1.f.
2. OTHER NONINTEREST EXPENSE (FROM SCHEDULE RI, ITEM 7.c.): |/////////////////|
a. AMORTIZATION EXPENSE OF INTANGIBLE ASSETS................................|4531 15,685 | 2.a.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
REPORT AMOUNTS THAT EXCEED 10% OF SCHEDULE RI, ITEM 7.c.: |/////////////////|
b. NET LOSSES ON OTHER REAL ESTATE OWNED....................................|5418 33,003 | 2.b.
c. NET LOSSES ON SALES OF LOANS ............................................|5419 0 | 2.c.
d. NET LOSSES ON SALES OF PREMISES AND FIXED ASSETS ........................|5420 0 | 2.d.
ITEMIZE AND DESCRIBE THE THREE LARGEST OTHER AMOUNTS THAT EXCEED 10% OF |/////////////////|
SCHEDULE RI, ITEM 7.c.: |/////////////////|
e.|4464| Restructuring Charge |4464 26,044 | 2.e.
f.|4467| Interbank Contract Services |4467 22,035 | 2.f.
g.|4468| |4468 0 | 2.g.
3. EXTRAORDINARY ITEMS AND OTHER ADJUSTMENTS (FROM SCHEDULE RI, ITEM 11.a) |/////////////////|
AND APPLICABLE INCOME TAX EFFECT (FROM SCHEDULE RI, ITEM 11.b) |/////////////////|
(ITEMIZE AMD DESCRIBE ALL EXTRAORDINARY ITEMS AND OTHER ADJUSTMENTS): |/////////////////|
a. (1)|6440|Effect of adopting FASB Statement No. 109 "Ac|------------------|6440 9,081 | 3.a.(1)
(2) APPLICABLE INCOME TAX EFFECT......................|4486 0 |/////////////////| 3.a.(2)
b. (1)|4487|Prior Service Cost of Post Retirement Benefit|------------------|4487 (12,973)| 3.b.(1)
(2) APPLICABLE INCOME TAX EFFECT......................|4488 (3,892)|/////////////////| 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): |/////////////////|
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): |/////////////////|
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): |/////////////////|
a.|4496| |4496 0 | 6.a.
b.|4497| |4497 0 | 6.b.
|-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RI-8
HOUSTON, TX 77252 (10)
SCHEDULE RI-E CONTINUED
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RIAD Bil Mil Thou|
---------------------------------------------------------------------------|-----------------|
7. OTHER TRANSACTIONS WITH PARENT HOLDING COMPANY (FROM SCHEDULE RI-A, |/////////////////|
ITEM 13) (ITEMIZE AND DESCRIBE ALL SUCH TRANSACTIONS): |/////////////////|
a.|4498|Capital Injection |4498 11,000 | 7.a.
b.|4499| |4499 0 | 7.b.
8. ADJUSTMENTS TO ALLOWANCE FOR LOAN AND LEASE LOSSES (FROM SCHEDULE RI-B, |/////////////////|
PART II, ITEM 5) ( ITEMIZE AND DESCRIBE ALL ADJUSTMENTS): |/////////////////|
a.|4521|First City Allowance at Acquisition |4521 10,649 | 8.a.
b.|4522| |4522 0 | 8.b.
9. OTHER EXPLANATIONS (THE SPACE BELOW IS PROVIDED FOR THE BANK TO BRIEFLY |/////////////////|
DESCRIBE, AT ITS OPTION, ANY OTHER SIGNIFICANT ITEMS AFFECTING THE |/////////////////|
REPORT OF INCOME): |/////////////////|
|/////////////////|
NO COMMENT |4769 0 |
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
|-----------------|
OTHER EXPLANATIONS (PLEASE TYPE OR PRINT CLEARLY): | I498 | I499 |
|4769| |-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-1
HOUSTON, TX 77252 (11)
FDIC CERTIFICATE NUMBER: 03263
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE
CHARTERED SAVINGS BANKS FOR
September 30, 1993
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.
<S> <C> <C> <C>
|------------|
SCHEDULE RC - BALANCE SHEET | C400 | (---
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou |
----------------------------------------------------------------------------------------------|------------------|
ASSETS |//////////////////|
1. CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS (FROM SCHEDULE RC-A): |//////////////////|
a. NONINTEREST-BEARING BALANCES AND CURRENCY AND COIN (1).................................|0081 795,657 | 1.a
b. INTEREST-BEARING BALANCES (2)..........................................................|0071 5,011 | 1.b
2. SECURITIES (FROM SCHEDULE RC-B)...........................................................|0390 2,043,074 | 2.
3. FEDERAL FUNDS SOLD & SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL IN DOMESTIC OFFICES |//////////////////|
OF THE BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBFs: |//////////////////|
a. FEDERAL FUNDS SOLD.....................................................................|0276 1,705,690 | 3.a.
b. SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL........................................|0277 128,370 | 3.b.
4. LOANS AND LEASE FINANCING RECEIVABLES: |------------------|//////////////////|
a. LOANS AND LEASES, NET OF UNEARNED INCOME (FROM SCHEDULE RC-C).......|2122 7,098,252 |//////////////////| 4.a
b. LESS: ALLOWANCE FOR LOAN AND LEASE LOSSES...........................|3123 193,774 |//////////////////| 4.b
c. LESS: ALLOCATED TRANSFER RISK RESERVE...............................|3128 2,290 |//////////////////| 4.c
d. LOANS AND LEASES, NET OF UNEARNED INCOME, |------------------|//////////////////|
ALLOWANCE, AND RESERVE (ITEM 4.a. MINUS 4.b. AND 4.c.).................................|2125 6,902,188 | 4.d
5. ASSETS HELD IN TRADING ACCOUNTS ..........................................................|2146 11,512 | 5.
6. PREMISES AND FIXED ASSETS (INCLUDING CAPITALIZED LEASES)..................................|2145 325,411 | 6.
7. OTHER REAL ESTATE OWNED (FROM SCHEDULE RC-M)..............................................|2150 120,332 | 7.
8. INVESTMENTS IN UNCONSOLIDATED SUBSIDIARIES AND ASSOCIATED COMPANIES (FROM SCHEDULE RC-M)..|2130 0 | 8.
9. CUSTOMERS' LIABILITY TO THIS BANK ON ACCEPTANCES OUTSTANDING..............................|2155 10,079 | 9.
10. INTANGIBLE ASSETS (FROM SCHEDULE RC-M)....................................................|2143 320,548 | 10.
11. OTHER ASSETS (FROM SCHEDULE RC-F).........................................................|2160 329,733 | 11.
12. TOTAL ASSETS (SUM OF ITEMS 1 THROUGH 11)..................................................|2170 12,697,605 | 12.
|------------------|
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
----------
(1) INCLUDES CASH ITEMS IN PROCESS OF COLLECTION AND UNPOSTED DEBITS.
(2) INCLUDES TIME CERTIFICATES OF DEPOSIT NOT HELD IN TRADING ACCOUNTS.
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-2
HOUSTON, TX 77252 (12)
<S> <C> <C> <C> <C>
SCHEDULE RC-CONTINUED |------------------|
DOLLAR AMOUNTS IN THOUSANDS| Bil Mil Thou |
------------------------------------------------------------------------------------------------|------------------|
LIABILITIES |//////////////////|
13. DEPOSITS: |//////////////////|
a. IN DOMESTIC OFFICES (SUM OF TOTALS OF COLUMNS A AND C FROM SCHEDULE RC-E, PART I)...|RCON|2200 8,926,425 | 13.a
(1) NONINTEREST-BEARING(1).........................................|RCON|6631 4,027,868 |//////////////////| 13.a.(1)
(2) INTEREST-BEARING...............................................|RCON|6636 4,898,557 |//////////////////| 13.a.(2)
b. IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBFs (FROM SCHEDULE |//////////////////|
RC-E, PART II)......................................................................|RCFN|2200 580,887 | 13.b.
(1) NONINTEREST-BEARING............................................|RCFN|6631 0 |//////////////////| 13.b.(1)
(2) INTEREST-BEARING...............................................|RCFN|6636 580,887 |//////////////////| 13.b.(2)
14. FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE IN DOMESTIC |//////////////////|
OFFICES OF THE BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBFs.................|//////////////////|
a. FEDERAL FUNDS PURCHASED.............................................................|RCFD|0278 366,367 | 14.a.
b. SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE......................................|RCFD|0279 332,759 | 14.b.
15. DEMAND NOTES ISSUED TO THE U.S. TREASURY...............................................|RCON|2840 900,000 | 15.
16. OTHER BORROWED MONEY...................................................................|RCFD|2850 84,172 | 16.
17. MORTGAGE INDEBTEDNESS AND OBLIGATIONS UNDER CAPITALIZED LEASES.........................|RCFD|2910 10,375 | 17.
18. BANK'S LIABILITY ON ACCEPTANCES EXECUTED AND OUTSTANDING...............................|RCFD|2920 10,079 | 18.
19. SUBORDINATED NOTES AND DEBENTURES .....................................................|RCFD|3200 320,000 | 19.
20. OTHER LIABILITIES (FROM SCHEDULE RC-G).................................................|RCFD|2930 152,117 | 20.
21. TOTAL LIABILITIES (SUM OF ITEMS 13 THROUGH 20).........................................|RCFD|2948 11,683,181 | 21.
|//////////////////|
22. LIMITED-LIFE PREFERRED STOCK AND RELATED SURPLUS.......................................|RCFD|3282 0 | 22.
EQUITY CAPITAL |//////////////////|
23. PERPETUAL PREFERRED STOCK AND RELATED SURPLUS..........................................|RCFD|3838 0 | 23.
24. COMMON STOCK...........................................................................|RCFD|3230 280,293 | 24.
25. SURPLUS (EXCLUDE ALL SURPLUS RELATED TO PREFERRED STOCK)...............................|RCFD|3839 158,403 | 25.
26. a. UNDIVIDED PROFITS AND CAPITAL RESERVES..............................................|RCFD|3632 575,728 | 26.a.
26. b. LESS: NET UNREALIZED LOSS ON MARKETABLE EQUITY SECURITIES...........................|RCFD|0297 0 | 26.b.
27. CUMULATIVE FOREIGN CURRENCY TRANSLATION ADJUSTMENTS....................................|RCFD|3284 0 | 27.
28. TOTAL EQUITY CAPITAL (SUM OF ITEMS 23 THROUGH 27)......................................|RCFD|3210 1,014,424 | 28.
29. TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, |//////////////////|
AND EQUITY CAPITAL (SUM OF ITEMS 21, 22, AND 28).......................................|RCFD|3300 12,697,605 | 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 NUMBER
DESCRIBES THE MOST COMPREHENSIVE LEVEL OF AUDITING WORK PERFORMED FOR THE BANK |------------------|
BY INDEPENDENT EXTERNAL AUDITORS AS OF ANY DATE DURING 1992 ............................|RCFD|6724 0 | M.1.
|------------------|
1 = INDEPENDENT AUDIT OF THE BANK CONDUCTED IN ACCORD- 4 = DIRECTORS' EXAMINATION OF THE BANK PERFORMED
ANCE WITH GENERALLY ACCEPTED AUDITING STANDARDS BY BY OTHER EXTERNAL AUDITORS (MAY BE REQUIRED
A CERTIFIED PUBLIC ACCOUNTING FIRM WHICH SUBMITS A BY STATE CHARTERING AUTHORITY)
REPORT ON THE BANK 5 = REVIEW OF THE BANK'S FINANCIAL STATEMENTS BY
2 = INDEPENDENT AUDIT OF THE BANK'S PARENT HOLDING EXTERNAL AUDITORS
COMPANY CONDUCTED IN ACCORDANCE WITH GENERALLY AC- 6 = COMPILATION OF THE BANK'S FINANCIAL STATE-
CEPTED AUDITING STANDARDS BY A CERTIFIED PUBLIC MENTS BY EXTERNAL AUDITORS
ACCOUNTING FIRM WHICH SUBMITS A REPORT ON THE CON- 7 = OTHER AUDIT PROCEDURES (EXCLUDING TAX PRE-
SOLIDATED HOLDING COMPANY (BUT NOT ON THE BANK PARATION WORK)
SEPARATELY) 8 = NO EXTERNAL AUDIT WORK
3 = DIRECTORS' EXAMINATION OF THE BANK CONDUCTED IN
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ACCORDANCE WITH GENERALLY ACCEPTED AUDITING STAN-
DARDS BY A CERTIFIED PUBLIC ACCOUNTING FIRM (MAY
BE REQUIRED BY STATE CHARTERING AUTHORITY)
---------
(1) INCLUDES TOTAL DEMAND DEPOSITS AND NONINTEREST-BEARING TIME AND SAVINGS DEPOSITS.
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-3
HOUSTON, TX 77252 (13)
SCHEDULE RC-A - CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
<S> <C> <C> <C> <C>
|-----------|
EXCLUDE ASSETS HELD IN TRADING ACCOUNTS | C405 | (---
|-----------------------------------|
| (Column A) | (Column B) |
| Consolidated | Domestic |
| Bank | Offices |
DOLLAR AMOUNTS IN THOUSANDS|RCFD Bil Mil Thou|RCON Bil Mil Thou|
-------------------------------------------------------------------------------------|-----------------|-----------------|
1. CASH ITEMS IN PROCESS OF COLLECTION, UNPOSTED DEBITS, AND CURRENCY AND COIN.......|0022 661,920 |/////////////////| 1.
a. CASH ITEMS IN PROCESS OF COLLECTION AND UNPOSTED DEBITS........................|/////////////////|0020 478,578 | 1.a
b. CURRENCY AND COIN..............................................................|/////////////////|0080 183,342 | 1.b
2. BALANCES DUE FROM DEPOSITORY INSTITUTIONS IN THE U.S..............................|/////////////////|0082 30,894 | 2.
a. U.S. BRANCHES AND AGENCIES OF FOREIGN BANKS (INCLUDING THEIR IBFs).............|0083 48 |/////////////////| 2.a
b. OTHER COMMERCIAL BANKS IN THE U.S. AND OTHER DEPOSITORY INSTITUTIONS IN THE |/////////////////|/////////////////| 2.b
U.S (INCLUDING THEIR IBFs).....................................................|0085 30,846 |/////////////////|
3. BALANCES DUE FROM BANKS IN FOREIGN COUNTRIES AND FOREIGN CENTRAL BANKS............|/////////////////|0070 13,399 | 3.
a. FOREIGN BRANCHES OF OTHER U.S. BANKS...........................................|0073 449 |/////////////////| 3.a.
b. OTHER BANKS IN FOREIGN COUNTRIES AND FOREIGN CENTRAL BANKS.....................|0074 12,973 |/////////////////| 3.b.
4. BALANCES DUE FROM FEDERAL RESERVE BANKS...........................................|0090 94,432 |0090 94,432 | 4.
5. TOTAL (SUM OF ITEMS 1 THROUGH 4) (TOTAL OF COLUMN A MUST EQUAL SCHEDULE RC ITEM 1)|0010 800,668 |0010 800,645 | 5.
|-----------------------------------|
MEMORANDUM
1. NONINTEREST-BEARING BALANCES DUE FROM COMMERCIAL BANKS IN THE U.S. |-----------------|
(INCLUDED IN ITEM 2, COLUMN B ABOVE)................................................................|0050 30,894 | M.1.
|-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-4
HOUSTON, TX 77252 (14)
</TABLE>
<PAGE>
<TABLE>
SCHEDULE RC-B - SECURITIES
<S> <C> <C> <C> <C> <C> <C>
|-----------|
EXCLUDE ASSETS HELD IN TRADING ACCOUNTS. | C410 | (---
|--------------------------------------------------|
| CONSOLIDATED BANK | DOMESTIC OFFICE|
|---------------------------------|----------------|
| (Column A) | (Column B) | (Column C) |
| Book Value |Market Value (1)| Book Value |
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Tho|RCFD Bil Mil Tho|RCON Bil Mil Tho|
--------------------------------------------------------------------|----------------|----------------|----------------|
1. U.S. TREASURY SECURITIES ........................................|0400 100,097 |0401 101,541 |0400 100,097 |1.
2. U.S. GOVERNMENT AGENCY AND CORPORATION OBLIGATIONS: |////////////////|////////////////|////////////////|
a. ALL HOLDINGS OF U.S. GOVERNMENT-ISSUED OR GUARANTEED CERT- |////////////////|////////////////|////////////////|
IFICATES OF PARTICIPATION IN POOLS OF RESIDENTIAL MORTGAGES |////////////////|////////////////|////////////////|
(1) ISSUED BY FNMA AND FHLMC..................................|3760 619,849 |3761 635,871 |3760 619,849 |2.a.(1)
(2) GUARANTEED BY GNMA (EXCLUDE FNMA AND FHLMC ISSUES)........|3762 979,662 |3763 1,059,621 |3762 979,662 |2.a.(2)
b. ALL OTHER.....................................................|0604 1,977 |0605 2,045 |////////////////|2.b.
(1) COLLATERALIZED MORTGAGE OBLIGATIONS ISSUED BY FNMA AND |////////////////|////////////////|////////////////|
FHLMC (INCLUDE REMICS)....................................|////////////////|////////////////|3764 0 |2.b.(1)
(2) ALL OTHER U.S. GOVERNMENT-SPONSORED AGENCY OBLIGATIONS (2)|////////////////|////////////////|3765 1,977 |2.b.(2)
(3) ALL OTHER U.S. GOVERNMENT AGENCY OBLIGATIONS (3)..........|////////////////|////////////////|3766 0 |2.b.(3)
3. SECURITIES ISSUED BY STATES AND POLITICAL SUBDIVISIONS IN THE U.S|0402 1,174 |0403 1,429 |////////////////|3.
a. GENERAL OBLIGATIONS...........................................|////////////////|////////////////|3767 1,052 |3.a.
b. REVENUE OBLIGATIONS...........................................|////////////////|////////////////|3768 122 |3.b.
c. INDUSTRIAL DEVELOPMENT AND SIMILAR OBLIGATIONS................|////////////////|////////////////|3769 0 |3.c.
4. OTHER DOMESTIC DEBT SECURITIES: |////////////////|////////////////|////////////////|
a. ALL HOLDINGS OF PRIVATE (I.E. NONGOVERNMENT-ISSUED OR |////////////////|////////////////|////////////////|
GUARANTEED) CERTIFICATES OF PARTICIPATION IN POOLS OF |////////////////|////////////////|////////////////|
RESIDENTIAL MORTGAGES.........................................|0408 0 |0409 0 |0408 0 |4.a.
b. ALL OTHER DOMESTIC DEBT SECURITIES |////////////////|////////////////|////////////////|
(1) PRIVATELY-ISSUED COLLATERALIZED MORTGAGE OBLIGATIONS |////////////////|////////////////|////////////////|
(INCLUDE REMICS)..........................................|5361 37,385 |5362 38,283 |5361 37,385 |4.b.(1)
(2) ALL OTHER.................................................|5363 288,558 |5364 291,731 |5363 288,558 |4.b.(2)
5. FOREIGN DEBT SECURITIES .........................................|3635 1,178 |3636 1,195 |3635 1,178 |5.
6. EQUITY SECURITIES: |////////////////|////////////////|////////////////|
a. MARKETABLE EQUITY SECURITIES: |////////////////|////////////////|////////////////|
(1) INVESTMENTS IN MUTUAL FUNDS...............................|3637 0 |3638 0 |3637 0 |6.a.(1)
(2) OTHER MARKETABLE EQUITY SECURITIES .......................|3639 33 |3640 33 |3639 33 |6.a.(2)
(3) LESS: NET UNREALIZED LOSS ON MARKETABLE EQUITY SECURITIES |3641 0 |////////////////|3641 0 |6.a.(3)
b. OTHER EQUITY SECURITIES (INCLUDES FEDERAL RESERVE STOCK)......|3642 13,161 |3643 13,161 |3642 13,161 |6.b.
7. TOTAL (SUM OF ITEMS 1 THROUGH 6) (TOTAL OF COLUMN A MUST EQUAL |////////////////|////////////////|////////////////|
SCHEDULE RC, ITEM 2).............................................|0390 2,043,074 |0391 2,144,910 |0390 2,043,074 |7.
|--------------------------------------------------|
-----------
(1) SEE DISCUSSION IN GLOSSARY ENTRY FOR "MARKET VALUE OF SECURITIES."
(2) INCLUDES OBLIGATIONS (OTHER THAN CERTIFICATES OF PARTICIPATION IN POOLS OF RESIDENTIAL MORTGAGES, CMOS, AND REMICS)
ISSUED BY THE FARM CREDIT SYSTEM, THE FEDERAL HOME LOAN BANK SYSTEM, THE FEDERAL HOME LOAN MORTGAGE CORPORATION,
THE FEDERAL NATIONAL MORTGAGE ASSOCIATION, THE FINANCING CORPORATION, RESOLUTION FUNDING CORPORATION, THE STUDENT
LOAN MARKETING ASSOCIATION, AND THE TENNESSEE VALLEY AUTHORITY.
(3) INCLUDES SMALL BUSINESS ADMINISTRATION "GUARANTEED LOAN POOL CERTIFICATES," U.S. MARITIME ADMINISTRATION OBLIGATIONS,
AND EXPORT-IMPORT BANK PARTICIPATION CERTIFICATES.
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-5
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
HOUSTON, TX 77252 (15)
SCHEDULE RC-B --CONTINUED |----------------|
| CONSOL. BANK |
| BOOK VALUE |
MEMORANDA |----------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Tho|
-------------------------------------------------------------------------------------|----------------|
1. PLEDGED SECURITIES................................................................|0416 931,140 | M.1.
2. MATURITY AND REPRICING DATA FOR DEBT SECURITIES: (1),(2) |////////////////|
a. FIXED RATE DEBT SECURITIES WITH A REMAINING MATURITY OF: |////////////////|
(1) THREE MONTHS OR LESS.......................................................|0343 5,743 | M.2.a.(1)
(2) OVER THREE MONTHS THROUGH 12 MONTHS........................................|0344 1,977 | M.2.a.(2)
(3) OVER ONE YEAR THROUGH FIVE YEARS...........................................|0345 856,976 | M.2.a.(3)
(4) OVER FIVE YEARS............................................................|0346 1,133,593 | M.2.a.(4)
(5) TOTAL FIXED RATE DEBT SECURITIES (SUM OF MEMORANDUM ITEMS 2.a.(1) |////////////////|
THROUGH 2.a.(4)............................................................|0347 1,998,289 | M.2.a.(5)
b. FLOATING RATE DEBT SECURITIES WITH A REPRICING FREQUENCY OF: |////////////////|
(1) QUARTERLY OR MORE FREQUENTLY...............................................|4544 30,362 | M.2.b.(1)
(2) ANNUALLY OR MORE FREQUENTLY, BUT LESS FREQUENTLY THAN |////////////////|
QUARTERLY..................................................................|4545 1,177 | M.2.b.(2)
(3) EVERY FIVE YEARS OR MORE FREQUENTLY, BUT LESS FREQUENTLY |////////////////|
THAN ANNUALLY..............................................................|4551 0 | M.2.b.(3)
(4) LESS FREQUENTLY THAN EVERY FIVE YEARS........................ ..........|4552 0 | M.2.b.(4)
(5) TOTAL FLOATING RATE DEBT SECURITIES (SUM OF MEMORANDUM ITEMS 2.b.(1) |////////////////|
THROUGH 2.b.(4)............................................................|4553 31,539 | M.2.b.(5)
C. TOTAL DEBT SECURITIES (SUM OF MEMORANDUM ITEMS 2.a.(5) AND 2.b.(5)) |////////////////|
(MUST EQUAL THE SUM OF ITEMS 1 THROUGH 5, COLUMN A, ABOVE).....................|0393 2,029,828 | M.2.c.
3. TAXABLE SECURITIES ISSUED BY STATES AND POLITICAL SUBDIVISIONS IN THE U.S. |////////////////|
(INCLUDED IN SCHEDULE RC-B, ITEM 3, COLUMN A, ABOVE)..............................|0301 171 | M.3.
4. DEBT SECURITIES RESTRUCTURED AND IN COMPLIANCE WITH MODIFIED TERMS |////////////////|
(INCLUDED IN SCHEDULE RC-B, ITEMS 3 THROUGH 5, COLUMN A, ABOVE)...................|5365 0 | M.4.
5. DEBT SECURITIES HELD FOR SALE (INCLUDED IN SCHEDULE RC-B, ITEMS 1 |////////////////|
THROUGH 5, COLUMN A, ABOVE).......................................................|5366 358,703 | M.5.
6. FLOATING RATE DEBT SECURITIES WITH A REMAINING MATURITY OF ONE YEAR OR LESS |////////////////|
(INCLUDED IN MEMORANDUM ITEM 2.b.(5) ABOVE).......................................|5519 0 | M.6.
|----------------|
-----------
(1) EXCLUDE EQUITY SECURITIES, E.G., INVESTMENTS IN MUTUAL FUNDS, FEDERAL RESERVE STOCK, COMMON
STOCK, AND PREFERRED STOCK.
(2) MEMORANDUM ITEM 2 IS NOT APPLICABLE TO SAVINGS BANKS THAT MUST COMPLETE SUPPLEMENTAL
SCHEDULE RC-J.
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-6
HOUSTON, TX 77252 (16)
SCHEDULE RC-C - LOANS AND LEASE FINANCING RECEIVABLES
NET OF UNEARNED INCOME AND BEFORE ADJUSTMENT FOR ALLOWANCE FOR LOAN AND LEASE
LOSSES. EXCLUDE ASSETS HELD IN TRADING ACCOUNTS. |-----------|
| C415 | (---
|-----------------------------------|
| (Column A) | (Column B) |
| Consolidated | Domestic |
| Bank | Offices |
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Tho|RCON Bil Mil Thou|
------------------------------------------------------------------------------|-----------------|-----------------|
1. LOANS SECURED BY REAL ESTATE..............................................|1410 1,270,691 |/////////////////| 1.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
a. CONSTRUCTION AND LAND DEVELOPMENT......................................|/////////////////|1415 262,695 | 1.a.
b. SECURED BY FARMLAND (INCLUDING FARM RESIDENTIAL AND OTHER IMPROVEMENTS)|/////////////////|1420 16,186 | 1.b.
c. SECURED BY 1-4 FAMILY RESIDENTIAL PROPERTIES...........................|/////////////////|/////////////////|
(1) REVOLVING, OPEN-END LOANS SECURED BY 1-4 FAMILY RESIDENTIAL |/////////////////|/////////////////|
PROPERTIES AND EXTENDED UNDER LINES OF CREDIT |/////////////////|1797 0 | 1.c.(1)
(2) ALL OTHER LOANS SECURED BY 1-4 FAMILY RESIDENTIAL PROPERTIES: |/////////////////|/////////////////|
(a) SECURED BY FIRST LIENS..........................................|/////////////////|5367 297,144 | 1.c.(2)(a)
(b) SECURED BY JUNIOR LIENS.........................................|/////////////////|5368 85,841 | 1.c.(2)(b)
d. SECURED BY MULTIFAMILY (5 OR MORE) RESIDENTIAL PROPERTIES..............|/////////////////|1460 81,610 | 1.d
e. SECURED BY NONFARM NONRESIDENTIAL PROPERTIES...........................|/////////////////|1480 527,215 | 1.e
2. LOANS TO DEPOSITORY INSTITUTIONS: |/////////////////|/////////////////|
a. TO COMMERCIAL BANKS IN THE U.S.........................................|/////////////////|1505 13,257 | 2.a.
(1) TO U.S. BRANCHES AND AGENCIES OF FOREIGN BANKS......................|1506 5,263 |/////////////////| 2.a.(1)
(2) TO OTHER COMMERCIAL BANKS IN THE U.S. ..............................|1507 12,994 |/////////////////| 2.a.(2)
b. TO OTHER DEPOSITORY INSTITUTIONS IN THE U.S. ..........................|1517 49 |1517 49 | 2.b.
c. TO BANKS IN FOREIGN COUNTRIES..........................................|/////////////////|1510 1,207 | 2.c.
(1) TO FOREIGN BRANCHES OF OTHER U.S. BANKS.............................|1513 419 |/////////////////| 2.c.(1)
(2) TO OTHER BANKS IN FOREIGN COUNTRIES.................................|1516 23,418 |/////////////////| 2.c.(2)
3. LOANS TO FINANCE AGRICULTURAL PRODUCTION AND OTHER LOANS TO FARMERS.......|1590 66,415 |1590 66,415 | 3.
4. COMMERCIAL AND INDUSTRIAL LOANS: |/////////////////|/////////////////|
a. TO U.S. ADDRESSEES (DOMICILE)..........................................|1763 2,663,397 |1763 2,610,474 | 4.a
b. TO NON-U.S. ADDRESSEES (DOMICILE)......................................|1764 131,721 |1764 25,079 | 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 800,696 | 6.
a. CREDIT CARDS AND RELATED PLANS (INCLUDES CHECK CREDIT AND OTHER |/////////////////|/////////////////|
REVOLVING CREDIT PLANS)................................................|2008 89,597 |/////////////////| 6.a.
b. OTHER (INCLUDES SINGLE PAYMENTS, INSTALLMENT, AND ALL STUDENT LOANS)...|2011 711,099 |/////////////////| 6.b.
7. LOANS TO FOREIGN GOVERNMENTS AND OFFICIAL INSTITUTIONS (INCLUDING |/////////////////|/////////////////|
FOREIGN CENTRAL BANKS)....................................................|2081 259,075 |2081 237,911 | 7.
8. OBLIGATIONS (OTHER THAN SECURITIES AND LEASES) OF STATES AND POLITICAL |/////////////////|/////////////////|
SUBDIVISIONS IN THE U.S. (INCLUDES NONRATED INDUSTRIAL DEVELOPMENT |/////////////////|/////////////////|
OBLIGATIONS): |/////////////////|/////////////////|
a. TAXABLE OBLIGATIONS....................................................|2033 0 |2033 0 | 8.a
b. TAX-EXEMPT OBLIGATIONS.................................................|2079 60,051 |2079 60,051 | 8.b
9. OTHER LOANS...............................................................|1563 1,630,404 |/////////////////| 9.
a. LOANS FOR PURCHASING OR CARRYING SECURITIES (SECURED AND UNSECURED)....|/////////////////|1545 315,437 | 9.a
b. ALL OTHER LOANS (EXCLUDE CONSUMER LOANS)...............................|/////////////////|1564 1,312,635 | 9.b
10. LEASE FINANCING RECEIVABLES (NET OF UNEARNED INCOME)......................|/////////////////|2165 206,536 | 10.
a. OF U.S. ADDRESSEES (DOMICILE)..........................................|2182 164,781 |/////////////////| 10.a.
b. OF NON-U.S. ADDRESSEES (DOMICILE)......................................|2183 41,755 |/////////////////| 10.b.
11. LESS: ANY UNEARNED INCOME ON LOANS REFLECTED IN ITEMS 1-9 ABOVE...........|2123 32,877 |2123 32,877 | 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 7,098,252 |2122 6,887,561 | 12.
|-----------------------------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-7
HOUSTON, TX 77252 (17)
|-----------------------------------|
SCHEDULE RC-C - CONTINUED | (Column A) | (Column B) |
| Consolidated | Domestic |
MEMORANDA | Bank | Offices |
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou|RCON Bil Mil Thou|
--------------------------------------------------------------------------------|-----------------|-----------------|
1. COMMERCIAL PAPER INCLUDED IN SCHEDULE RC-C ABOVE.............................|1496 0 |1496 0 | M.1.
2. LOANS AND LEASES RESTRUCTURED AND IN COMPLIANCE WITH MODIFIED TERMS |/////////////////|-----------------|
(INCLUDED IN SCHEDULE RC-C ABOVE): |/////////////////|
a. LOANS SECURED BY REAL ESTATE: |/////////////////|
(1) TO U.S. ADDRESSEES (DOMICILE).........................................|1687 35,611 | M.2.a.(1)
(2) TO NON-U.S. ADDRESSEES (DOMICILE).....................................|1689 0 | M.2.a.(2)
b. LOANS TO FINANCE AGRICULTURAL PRODUCTION AND OTHER LOANS TO FARMERS.......|1613 0 | M.2.b.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
c. COMMERCIAL AND INDUSTRIAL LOANS: |/////////////////|
(1) TO U.S. ADDRESSEES (DOMICILE).........................................|1758 0 | M.2.c.(1)
(2) TO NON-U.S. ADDRESSEES (DOMICILE).....................................|1759 0 | M.2.c.(2)
d. ALL OTHER LOANS (EXCLUDE LOANS TO INDIVIDUALS FOR HOUSEHOLD, FAMILY, |/////////////////|
AND OTHER PERSONAL EXPENDITURES)..........................................|1615 236,825 | M.2.d.
e. LEASE FINANCING RECEIVABLES: |/////////////////|
(1) OF U.S. ADDRESSEES (DOMICILE).........................................|1789 0 | M.2.e.(1)
(2) OF NON-U.S. ADDRESSEES (DOMICILE).....................................|1790 0 | M.2.e.(2)
f. TOTAL (SUM OF MEMORANDUM ITEMS 2.a. THROUGH 2.e.).........................|1616 272,436 | M.2.f.
3. MATURITY AND REPRICING DATA FOR LOANS AND LEASES (1)(EXCLUDING THOSE |/////////////////|
IN NONACCRUAL STATUS): |/////////////////|
a. FIXED RATE LOANS AND LEASES WITH A REMAINING MATURITY OF: |/////////////////|
(1) THREE MONTHS OR LESS..................................................|0348 393,637 | M.3.a.(1)
(2) OVER THREE MONTHS THROUGH 12 MONTHS...................................|0349 190,606 | M.3.a.(2)
(3) OVER ONE YEAR THROUGH FIVE YEARS......................................|0356 951,044 | M.3.a.(3)
(4) OVER FIVE YEARS.......................................................|0357 769,417 | M.3.a.(4)
(5) TOTAL FIXED RATE LOANS AND LEASES (SUM OF MEMORANDUM ITEMS 3.a.(1) |/////////////////|
THROUGH 3.a.(4).......................................................|0358 2,304,704 | M.3.a.(5)
b. FLOATING RATE LOANS WITH A REPRICING FREQUENCY OF: |/////////////////|
(1) QUARTERLY OR MORE FREQUENTLY..........................................|4554 2,574,322 | M.3.b.(1)
(2) ANNUALLY OR MORE FREQUENTLY, BUT LESS FREQUENTLY THAN |/////////////////|
QUARTERLY.............................................................|4555 1,453,592 | M.3.b.(2)
(3) EVERY FIVE YEARS OR MORE FREQUENTLY, BUT LESS FREQUENTLY |/////////////////|
THAN ANNUALLY.........................................................|4561 610,112 | M.3.b.(3)
(4) LESS FREQUENTLY THAN EVERY FIVE YEARS.................................|4564 50,786 | M.3.b.(4)
(5) TOTAL FLOATING RATE LOANS (SUM OF MEMORANDUM ITEMS |/////////////////|
3.b.(1) THROUGH 3.b.(4)...............................................|4567 4,688,812 | M.3.b.(5)
c. TOTAL LOANS AND LEASES (SUM OF MEMORANDUM ITEMS 3.a.(5) AND 3.b.(5)) (MUST|/////////////////|
EQUAL THE SUM OF TOTAL LOANS AND LEASES, NET, FROM SCHEDULE RC-C, ITEM |/////////////////|
12, PLUS UNEARNED INCOME FROM SCHEDULE RC-C, ITEM 11, MINUS TOTAL NONACCRU|/////////////////|
LOANS AND LEASES FROM SCHEDULE RC-N, SUM OF ITEMS 1 AND 8, COLUMN C)......|1479 6,993,516 | M.3.c.
4. LOANS TO FINANCE COMMERCIAL REAL ESTATE, CONSTRUCTION, AND LAND DEVELOPMENT |/////////////////|
ACTIVITIES (NOT SECURED BY REAL ESTATE) INCLUDED IN SCHEDULE RC-C, |/////////////////|
ITEMS 4 AND 9, COLUMN A, PAGE RC-6 (2) ......................................|2746 165,630 | M.4.
5. LOANS AND LEASES HELD FOR SALE (INCLUDED IN SCHEDULE RC-C ABOVE).............|5369 165,870 | M.5.
6. ADJUSTABLE RATE CLOSED-END LOANS SECURED BY FIRST LIENS ON 1-4 FAMILY |/////////////////|
RESIDENTIAL PROPERTIES (INCLUDED IN SCHEDULE RC-C, ITEM 1.c.(2)(a), |/////////////////|-----------------|
COLUMN B, ABOVE..............................................................|/////////////////|5370 47,485 | M.6.
|-----------------|-----------------|
______________
MEMORANDUM ITEM 3 IS NOT APPLICABLE TO SAVINGS BANKS THAT MUST COMPLETE SUPPLEMENTAL SCHEDULE RC-J.
CERT: 03263 00373 STBK 48-3926 FFIEC 031
TEXAS COMMERCE BANK NATIONAL ASSOCIATION PAGE RC-7a
P.O. BOX 2558 (17a)
HOUSTON, TX 77252
SCHEDULE RC-C----CONTINUED
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PART II. LOANS TO SMALL BUSINESSES AND SMALL FARMS
SCHEDULE RC-C, PART II IS TO BE REPORTED ONLY WITH THE JUNE REPORT OF CONDITION.
REPORT THE NUMBER AND AMOUNT CURRENTLY OUTSTANDING AS OF JUNE 30 OF BUSINESS LOANS WITH "ORIGINAL AMOUNTS" OF
$1,000,000 OR LESS AND FARM LOANS WITH "ORIGINAL AMOUNTS" OF $500,000 OR LESS. THE FOLLOWING GUIDELINES SHOULD BE
USED TO DETERMINE THE "ORIGINAL AMOUNT" OF A LOAN: (1) FOR LOANS DRAWN DOWN UNDER LINES OF CREDIT OR LOAN
COMMITMENTS, THE "ORIGINAL AMOUNT" OF THE LOAN IS THE SIZE OF THE LINE OF CREDIT OR LOAN COMMITMENT WHEN THE LINE
OF CREDIT OR LOAN COMMITMENT WAS GRANTED. (2) FOR LOAN PARTICIPATIONS AND SYNDICATIONS, THE "ORIGINAL AMOUNT" OF
THE LOAN PARTICIPATION OR SYNDICATION IS THE ENTIRE AMOUNT OF THE CREDIT ORIGINATED BY THE LEAD LENDER. (3) FOR
ALL OTHER LOANS, THE "ORIGINAL AMOUNT" IS THE TOTAL AMOUNT OF THE LOAN AT ORIGINATION.
LOANS TO SMALL BUSINESS
|------------|
1. INDICATE IN THE APPROPRIATE BOX AT THE RIGHT WHETHER ALL OR SUBSTANTIALLY ALL OF THE BANK'S | C418 | (---
"LOANS SECURED BY NONFARM NONRESIDENTIAL PROPERTIES" REPORTED IN SCHEDULE RC-C, PART I, |----|------------|
ITEM 1.e, AND COMMERCIAL AND INDUSTRIAL LOANS TO U.S. ADDRESSEES" REPORTED IN |RCON| YES | NO |
SCHEDULE RC-C, PART I, ITEM 4.a, HAVE ORIGINAL AMOUNTS OF $100,000 OR LESS ...................|-----------------|
|6999 0 | 1.
|-----------------|
IF YES, COMPLETE ITEMS 2.a AND 2.b. BELOW, SKIP ITEM 3 AND 4, AND GO TO ITEM 5.
IF NO, SKIP ITEMS 2.a AND 2.b, COMPLETE ITEMS 3 AND 4 BELOW, AND GO TO ITEM 5.
|-----------------|
2. REPORT THE TOTAL NUMBER OF LOANS CURRENTLY OUTSTANDING FOR EACH OF THE | NUMBER OF LOANS |
FOLLOWING SCHEDULE RC-C, PART I, LOAN CATEGORIES: |-----------------|
a. "LOANS SECURED BY NONFARM NONRESIDENTIAL PROPERTIES" REPORTED IN |/////////////////|
SCHEDULE RC-C, PART I, ITEM 1.e ........................................|/////////////////|
|5562 |2.a.
b. "COMMERCIAL AND INDUSTRIAL LOANS TO U.S. ADDRESSEES" REPORTED IN |/////////////////|
SCHEDULE RC-C, PART I, ITEM 4.a ........................................|5563 0 |2.b.
|-----------------|
<S> <C> <C> <C> <C>
|-----------------|-----------------|
| (Column A) | (Column B) |
| | AMOUNT |
| | CURRENTLY |
| | OUTSTANDING |
DOLLAR AMOUNTS IN THOUSANDS | NUMBER OF LOANS |RCONBil Mil Thou |
--------------------------------------------------------------------------------|-----------------|-----------------|
3. NUMBER AND AMOUNT CURRENTLY OUTSTANDING OF "LOANS SECURED BY NONFARM |/////////////////|/////////////////|
NONRESIDENTIAL PROPERTIES" REPORTED IN SCHEDULE RC-C, PART I, ITEM 1.e |/////////////////|/////////////////|
(SUM OF ITEMS 3.a THROUGH 3.c MUST BE LESS THAN OR EQUAL TO |/////////////////|/////////////////|
SCHEDULE RC-C, PART I, ITEM 1.e): |/////////////////|/////////////////|
a. WITH ORIGINAL AMOUNTS OF $100,000 OR LESS ..............................|5564 0 |5565 0 | 3.a.
b. WITH ORIGINAL AMOUNTS OF MORE THAN $100,000 THROUGH $250,000 ...........|5566 0 |5567 0 | 3.b.
c. WITH ORIGINAL AMOUNTS OF MORE THAN $250,000 THROUGH $1,000,000 .........|5568 0 |5569 0 | 3.c.
4. NUMBER AND AMOUNT CURRENTLY OUTSTANDING OF "COMMERCIAL AND INDUSTRIAL |/////////////////|/////////////////|
LOANS TO U.S. ADDRESSEES" REPORTED IN SCHEDULE RC-C, PART I, ITEM 4.a |/////////////////|/////////////////|
(SUM OF ITEMS 4.a THROUGH 4.c MUST BE LESS THAN OR EQUAL TO |/////////////////|/////////////////|
SCHEDULE RC-C, PART I, ITEM 4.a): |/////////////////|/////////////////|
a. WITH ORIGINAL AMOUNTS OF $100,000 OR LESS ..............................|5570 0 |5571 0 | 4.a.
b. WITH ORIGINAL AMOUNTS OF MORE THAN $100,000 THROUGH $250,000 ...........|5572 0 |5573 0 | 4.b.
c. WITH ORIGINAL AMOUNTS OF MORE THAN $250,000 THROUGH $1,000,000 .........|5574 0 |5575 0 | 4.c.
|--------------- |---------------- |
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CERT: 03263 00373 STBK 48-3926 FFIEC 031
TEXAS COMMERCE BANK NATIONAL ASSOCIATION PAGE RC-7b
P.O. BOX 2558 (17b)
HOUSTON, TX 77252
SCHEDULE RC-C----CONTINUED
PART II. CONTINUED
AGRICULTURAL LOANS TO SMALL FARMS
5. INDICATE IN THE APPROPRIATE BOX AT THE RIGHT WHETHER ALL OR SUBSTANTIALLY ALL OF THE BANK'S
"LOANS SECURED BY FARMLAND (INCLUDING FARM RESIDENTIAL AND OTHER IMPROVEMENTS)" REPORTED IN |----|------------|
SCHEDULE RC-C, PART I, ITEM 1.b, AND "LOANS TO FINANCE AGRICULTURAL PRODUCTION AND OTHER |RCON| YES | NO |
LOANS TO FARMERS" REPORTED IN SCHEDULE RC-C, PART I, ITEM 3, HAVE ORIGINAL AMOUNTS OF |-----------------|
$100,000 OR LESS .............................................................................|6860 0 | 5.
|-----------------|
IF YES, COMPLETE ITEMS 6.a AND 6.b BELOW AND DO NOT COMPLETE ITEMS 7 AND 8.
IF NO, SKIP ITEMS 6.a AND 6.b AND COMPLETE ITEMS 7 AND 8, BELOW.
|-----------------|
| NUMBER OF LOANS |
6. REPORT THE TOTAL NUMBER OF LOANS CURRENTLY OUTSTANDING FOR EACH OF THE |-----------------|
FOLLOWING SCHEDULE RC-C, PART I, LOAN CATEGORIES: |/////////////////|
a. "LOANS SECURED BY FARMLAND (INCLUDING FARM RESIDENTIAL AND OTHER |/////////////////|
IMPROVEMENTS)" REPORTED IN SCHEDULE RC-C, PART I, ITEM 1.b .............|5576 0 |6.a.
b. "LOANS TO FINANCE AGRICULTURAL PRODUCTION AND OTHER LOANS TO FARMERS" |/////////////////|
REPORTED IN SCHEDULE RC-C, PART I, ITEM 3 ..............................|5577 0 |6.b.
|-----------------|
<S> <C> <C> <C> <C> <C>
|-----------------|-----------------|
| (Column A) | (Column B) |
| | AMOUNT |
| | CURRENTLY |
| | OUTSTANDING |
DOLLAR AMOUNTS IN THOUSANDS | NUMBER OF LOANS |RCONBil Mil Thou |
--------------------------------------------------------------------------------|-----------------|-----------------|
7. NUMBER AND AMOUNT CURRENTLY OUTSTANDING OF "LOANS SECURED BY FARMLAND |/////////////////|/////////////////|
(INCLUDING FARM RESIDENTIAL AND OTHER IMPROVEMENTS)" REPORTED IN SCHEDULE |/////////////////|/////////////////|
RC-C, PART I, ITEM 1.b (SUM OF ITEMS 7.a THROUGH 7.c MUST BE LESS THAN OR |/////////////////|/////////////////|
EQUAL TO SCHEDULE RC-C, PART I, ITEM 1.b): |/////////////////|/////////////////|
a. WITH ORIGINAL AMOUNTS OF $100,000 OR LESS ..............................|5578 0 |5579 0 | 7.a.
b. WITH ORIGINAL AMOUNTS OF MORE THAN $100,000 THROUGH $250,000 ...........|5580 0 |5581 0 | 7.b.
c. WITH ORIGINAL AMOUNTS OF MORE THAN $250,000 THROUGH $500,000 ......... |5582 0 |5583 0 | 7.c.
8. NUMBER AND AMOUNT CURRENTLY OUTSTANDING OF "LOANS TO FINANCE AGRICULTURAL |/////////////////|/////////////////|
PRODUCTION AND OTHER LOANS TO FARMERS" REPORTED IN SCHEDULE RC-C, PART I, |/////////////////|/////////////////|
ITEM 3 (SUM OF ITEMS 8.a THROUGH 8.c MUST BE LESS THAN OR EQUAL TO |/////////////////|/////////////////|
SCHEDULE RC-C, PART I, ITEM 3.): |/////////////////|/////////////////|
a. WITH ORIGINAL AMOUNTS OF $100,000 OR LESS ..............................|5584 0 |5585 0 | 8.a.
b. WITH ORIGINAL AMOUNTS OF MORE THAN $100,000 THROUGH $250,000 ...........|5586 0 |5587 0 | 8.b.
c. WITH ORIGINAL AMOUNTS OF MORE THAN $250,000 THROUGH $500,000 ......... |5588 0 |5589 0 | 8.c.
|-----------------|-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-8
HOUSTON, TX 77252 (18)
FDIC CERTIFICATE NUMBER 03263
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE RC-D IS TO BE COMPLETED ONLY BY BANKS WITH $1 BILLION OR MORE IN TOTAL ASSETS.
|------------|
SCHEDULE RC-D - ASSETS HELD IN TRADING ACCOUNTS IN | C420 | (---
DOMESTIC OFFICES ONLY |-----------------|
|DOMESTIC OFFICES |
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RCON Bil Mil Thou|
--------------------------------------------------------------------------------------------------|-----------------|
1. U.S. TREASURY SECURITIES.......................................................................|1010 729 | 1.
2. U.S. GOVERNMENT AGENCY AND CORPORATION OBLIGATIONS.............................................|1020 2,699 | 2.
3. SECURITIES ISSUED BY STATES AND POLITICAL SUBDIVISIONS IN THE U.S. ............................|1025 8,084 | 3.
4. OTHER BONDS, NOTES AND DEBENTURES..............................................................|1045 0 | 4.
5. CERTIFICATES OF DEPOSITS.......................................................................|1026 0 | 5.
6. COMMERCIAL PAPER...............................................................................|1027 0 | 6.
7. BANKER'S ACCEPTANCES...........................................................................|1028 0 | 7.
8. OTHER..........................................................................................|1029 0 | 8.
9. TOTAL (SUM OF ITEMS 1 THROUGH 8) ..............................................................|2146 11,512 | 9.
|-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-9
HOUSTON, TX 77252 (19)
<S> <C> <C> <C> <C> <C> <C> <C>
|-----------|
| C425 | (----
SCHEDULE RC-E DEPOSIT LIABILITIES |-----------------------------------------------------|
| TRANSACTION ACCOUNTS | NONTRANSACTION |
PART 1. DEPOSITS IN DOMESTIC OFFICES | | ACCOUNTS |
|-----------------------------------------------------|
| (Column A) | (Column B) | (Column C) |
|Total transaction| Memo: Total | Total nontrans- |
|accounts (includ-|demand deposits | action accounts |
|ing total demand | (included in |(including MMDAs)|
DOLLAR AMOUNTS IN THOUSANDS| deposits) | Column A) | |
-------------------------------------------------------|RCON Bil Mil Thou|RCON Bil Mil Thou|RCON Bil Mil Thou|
DEPOSITS OF: |-----------------|-----------------|-----------------|
1. INDIVIDUALS, PARTNERSHIPS AND CORPORATIONS .........|2201 3,915,828 |2240 3,008,714 |2346 4,672,030 | 1.
2. U.S. GOVERNMENT.....................................|2202 18,896 |2280 18,896 |2520 0 | 2.
3. STATES & POLITICAL SUBDIVISIONS IN THE U.S..........|2203 37,729 |2290 7,675 |2530 24,725 | 3.
4. COMMERCIAL BANKS IN THE U.S. .......................|2206 164,438 |2310 164,438 |/////////////////| 4.
a. U.S. BRANCHES AND AGENCIES OF FOREIGN BANKS......|/////////////////|/////////////////|2347 0 | 4.a.
b. OTHER COMMERCIAL BANKS IN THE U.S. ..............|/////////////////|/////////////////|2348 141 | 4.b.
5. OTHER DEPOSITORY INSTITUTIONS IN THE U.S............|2207 10,604 |2312 10,604 |2349 0 | 5.
6. BANKS IN FOREIGN COUNTRIES .........................|2213 11,200 |2320 11,200 |/////////////////| 6.
a. FOREIGN BRANCHES OF OTHER U.S. BANKS ............|/////////////////|/////////////////|2367 0 | 6.a.
b. OTHER BANKS IN FOREIGN COUNTRIES.................|/////////////////|/////////////////|2373 0 | 6.b.
7. FOREIGN GOVERNMENTS AND OFFICIAL INSTITUTIONS |/////////////////|/////////////////|/////////////////|
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
(INCLUDING FOREIGN CENTRAL BANKS)...................|2216 893 |2300 893 |2377 0 | 7.
8. CERTIFIED AND OFFICIAL CHECKS.......................|2330 69,941 |2330 69,941 |/////////////////| 8.
9. TOTAL (SUM OF ITEMS 1 THROUGH 8) (SUM OF COLUMNS A |/////////////////|/////////////////|/////////////////|
AND C MUST EQUAL SCHEDULE RC, ITEM 13.a.)...........|2215 4,229,529 |2210 3,292,361 |2385 4,696,896 | 9.
|-----------------|-----------------|-----------------|
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS|RCON Bil Mil Thou|
-------------------------------------------------------------------------------------------|-----------------|
MEMORANDA |/////////////////|
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 456,496 | M.1.a
b. TOTAL BROKERED DEPOSITS..............................................................|2365 0 | M.1.b
c. FULLY INSURED BROKERED DEPOSITS (I.E. TOTAL BROKERED RETAIL DEPOSITS) (INCLUDED IN |/////////////////|
MEMORANDUM ITEM 1.B ABOVE) |/////////////////|
(1) ISSUED IN DENOMINATIONS OF LESS THAN $100,000 ....................................|2343 0 | M.1.c.(1)
(2) ISSUED EITHER IN DENOMINATIONS OF $100,000 OR IN DENOMINATIONS GREATER THAN |/////////////////|
$100,000 AND PARTICIPATED OUT BY THE BROKER IN SHARES OF $100,000 OR LESS.........|2344 0 | M.1.c.(2)
d. TOTAL DEPOSITS DENOMINATED IN FOREIGN CURRENCIES.....................................|3776 1,055 | M.1.d.
e. PREFERRED DEPOSITS(DEPOSITS OF STATES AND POLITICAL SUBDIVISIONS IN THE U.S. |/////////////////|
REPORTED IN ITEM 3 ABOVE WHICH ARE SECURED OR COLLATERALIZED)........................|5590 48,314 | M.1.e.
2. COMPONENTS OF TOTAL NONTRANSACTION ACCOUNTS (SUM OF MEMORANDA ITEMS 2.A THROUGH 2.D |/////////////////|
MUST EQUAL ITEM 9, COLUMN C ABOVE): |/////////////////|
a. SAVINGS DEPOSITS: |/////////////////|
(1) MONEY MARKET DEPOSIT ACCOUNTS (MMDAs)............................................|6810 1,344,703 | M.2.a.(1)
(2) OTHER SAVINGS DEPOSITS (EXCLUDES MMDAs)..........................................|0352 1,508,237 | M.2.a.(2)
b. TOTAL TIME DEPOSITS LESS THAN $100,000 ..............................................|6648 1,377,550 | M.2.b
c. TIME CERTIFICATES OF DEPOSIT OF $100,000 OR MORE.....................................|6645 447,154 | M.2.c
d. OPEN-ACCOUNT TIME DEPOSITS OF $100,000 OR MORE.......................................|6646 19,252 | M.2.d
3. ALL NOW ACCOUNTS (INCLUDED IN COLUMN A ABOVE)...........................................|2398 937,168 | M.3.
|-----------------|
DEPOSIT TOTALS FOR FDIC INSURANCE ASSESSMENTS (1) |-----------------|
4. TOTAL DEPOSITS IN DOMESTIC OFFICES (SUM OF ITEM 9, COLUMN A AND ITEM 9, COLUMN C) |/////////////////|
(MUST EQUAL SCHEDULE RC, ITEM 13.A) ....................................................|2200 8,926,425 | M.4.
a. TOTAL DEMAND DEPOSITS (MUST EQUAL ITEM 9, COLUMN B)..................................|2210 3,292,361 | M.4.a.
b. TOTAL TIME AND SAVINGS DEPOSITS (2) (MUST EQUAL ITEM 9, COLUMN A PLUS COLUMN C |/////////////////|
MINUS COLUMN B) .....................................................................|2350 5,634,064 | M.4.b.
|-----------------|
---------
(1) AN AMENDED CERTIFIED STATEMENT SHOULD BE SUBMITTED TO THE FDIC IF THE DEPOSIT TOTALS REPORTED IN THIS ITEM ARE
AMENDED AFTER THE SEMI-ANNUAL CERTIFIED STATEMENT ORIGINALLY COVERING THIS REPORT DATE HAS BEEN FILED WITH
THE FDIC.
(2) FOR FDIC INSURANCE ASSESSMENT PURPOSES, "TOTAL TIME AND SAVINGS DEPOSITS" CONSISTS OF NONTRANSACTION ACCOUNTS
AND ALL TRANSACTION ACCOUNTS OTHER THAN DEMAND DEPOSITS.
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-10
HOUSTON, TX 77252 (20)
SCHEDULE RC-E - CONTINUED
PART 1. - CONTINUED
MEMORANDA (CONTINUED) |------------------|
DOLLAR AMOUNTS IN THOUSANDS |RCON Bil Mil Thou |
-------------------------------------------------------------------------------------|------------------|
5. TIME DEPOSITS OF LESS THAN $100,000 AND OPEN-ACCOUNT TIME DEPOSITS OF $100,000 |//////////////////|
OR MORE (INCLUDED IN MEMORANDUM ITEMS 2.b. AND 2.d. ABOVE) WITH A REMAINING |//////////////////|
MATURITY OR REPRICING FREQUENCY OF (1): |//////////////////|
a. THREE MONTHS OR LESS...........................................................|0359 590,519 | M.5.a.
b. OVER THREE MONTHS THROUGH 12 MONTHS (BUT NOT OVER 12 MONTHS)...................|3644 483,161 | M.5.b.
6. MATURITY AND REPRICING DATA FOR TIME CERTIFICATES OF DEPOSITS OF |//////////////////|
$100,000 OR MORE (1): |//////////////////|
a. FIXED RATE TIME CERTIFICATES OF DEPOSIT OF $100,000 OR MORE WITH A REMAINING |//////////////////|
MATURITY OF: |//////////////////|
(1) THREE MONTHS OR LESS.......................................................|2761 315,212 | M.6.a.(1)
(2) OVER THREE MONTHS THROUGH 12 MONTHS........................................|2762 103,531 | M.6.a.(2)
(3) OVER ONE YEAR THROUGH FIVE YEARS...........................................|2763 23,115 | M.6.a.(3)
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
(4) OVER FIVE YEARS............................................................|2765 0 | M.6.a.(4)
(5) TOTAL FIXED RATE TIME CERTIFICATES OF DEPOSIT OF $100,000 OR MORE (SUM |//////////////////|
OF MEMORANDUM ITEMS 6.a.(1) THROUGH 6.a.(4)................................|2767 441,858 | M.6.a.(5)
b. FLOATING RATE TIME CERTIFICATES OF DEPOSIT OF $100,000 OR MORE WITH A |//////////////////|
REPRICING FREQUENCY OF: |//////////////////|
(1) QUARTERLY OR MORE FREQUENTLY...............................................|4568 5,296 | M.6.b.(1)
(2) ANNUALLY OR MORE FREQUENTLY, BUT LESS FREQUENTLY THAN |//////////////////|
QUARTERLY..................................................................|4569 0 | M.6.b.(2)
(3) EVERY FIVE YEARS OR MORE FREQUENTLY, BUT LESS FREQUENTLY |//////////////////|
THAN ANNUALLY..............................................................|4571 0 | M.6.b.(3)
(4) LESS FREQUENTLY THAN EVERY FIVE YEARS......................................|4572 0 | M.6.b.(4)
(5) TOTAL FLOATING RATE TIME CERTIFICATES OF DEPOSITS OF $100,000 |//////////////////|
OR MORE (SUM OF MEMORANDUM ITEMS 6.b.(1) THROUGH 6.b.(4)...................|4573 5,296 | M.6.b.(5)
c. TOTAL TIME CERTIFICATES OF DEPOSIT OF $100,000 OR MORE (SUM OF MEMORANDUM |//////////////////|
ITEMS 6.a.(5) AND 6.b.(5)) (MUST EQUAL MEMORANDUM ITEM 2.c. ABOVE).............|6645 447,154 | M.6.c.
|------------------|
---------
(1) MEMORANDUM ITEMS 5 AND 6 ARE NOT APPLICABLE TO SAVINGS BANKS THAT MUST COMPLETE SUPPLEMENTAL SCHEDULE RC-J.
PART II. DEPOSITS IN FOREIGN OFFICES (INCLUDING EDGE AND
AGREEMENT SUBSIDIARIES AND IBFs)
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFN Bil Mil Thou |
-------------------------------------------------------------------------------------|------------------|
DEPOSITS OF: |//////////////////|
1. INDIVIDUALS, PARTNERSHIPS, AND CORPORATIONS.......................................|2621 421,386 | 1.
2. U.S. BANKS (INCLUDING IBFs AND FOREIGN BRANCHES OF U.S. BANKS)....................|2623 159,501 | 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 THORUGH 6) (MUST EQUAL SCHEDULE RC, ITEM 13.b.).............|2200 580,887 | 7.
|------------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-11
HOUSTON, TX 77252 (21)
SCHEDULE RC-F - OTHER ASSETS |-----------|
| C430 | (---
DOLLAR AMOUNTS IN THOUSANDS |-----------------|
----------------------------------------------------------------------------------------|RCFD Bil Mil Thou|
|-----------------|
1. INCOME EARNED, NOT COLLECTED ON LOANS................................................|2164 38,645 | 1.
2. NET DEFERRED TAX ASSETS (1) .........................................................|2148 17,375 | 2.
3. EXCESS RESIDENTIAL MORTGAGE SERVICING FEES RECEIVABLE................................|5371 0 | 3.
4. OTHER (ITEMIZE AMOUNTS THAT EXCEED 25% OF THIS ITEM) ................................|2168 273,713 | 4.
|----| |----------------|/////////////////|
a. |3549|Swap Interest Receivable |3549| 89,201 |/////////////////| 4.a.
b. |3550| 0 |3550| 0 |/////////////////| 4.b.
c. |3551| 0 |3551| 0 |/////////////////| 4.c.
|----| |----------------|/////////////////|
5. TOTAL (SUM OF ITEMS 1 THROUGH 4) (MUST EQUAL SCHEDULE RC, ITEM 11)...................|2160 329,733 | 5.
|-----------------|
MEMORANDUM
DOLLAR AMOUNTS IN THOUSANDS |-----------------|
----------------------------------------------------------------------------------------|RCFD Bil Mil Thou|
1. DEFERRED TAX ASSETS DISALLOWED FOR REGULATORY CAPITAL PURPOSES.......................|5610 0 | M.1.
|-----------------|
|-----------|
SCHEDULE RC-G - OTHER LIABILITIES | C435 | (---
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou|
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------|-----------------|
1. a. INTEREST ACCRUED AND UNPAID ON DEPOSITS IN DOMESTIC OFFICES(2)....................|3645 11,088 | 1.a.
b. OTHER EXPENSES ACCRUED AND UNPAID (INCLUDES ACCRUED INCOME TAXES PAYABLE).........|3646 122,497 | 1.b.
2. NET DEFERRED TAX LIABILITIES (1) ....................................................|3049 0 | 2.
3. MINORITY INTEREST IN CONSOLIDATED SUBSIDIARIES.......................................|3000 0 | 3.
4. OTHER (ITEMIZE AMOUNTS THAT EXCEED 25% OF THIS ITEM).................................|2938 18,532 | 4.
|----| |----------------|/////////////////|
a. |3552| 0 |3552| 0 |/////////////////| 4.a.
b. |3553| 0 |3553| 0 |/////////////////| 4.b.
c. |3554| 0 |3554| 0 |/////////////////| 4.c.
|----| |----------------|/////////////////|
5. TOTAL (SUM OF ITEMS 1 THROUGH 4) (MUST EQUAL SCHEDULE RC, ITEM 20)...................|2930 152,117 | 5.
|-----------------|
---------
(1) SEE DISCUSSION OF DEFERRED INCOME TAXES IN GLOSSARY ENTRY ON "INCOME TAXES."
(2) FOR SAVINGS BANKS, INCLUDE "DIVIDENDS" ACCRUED AND UNPAID ON DEPOSITS.
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-12
HOUSTON, TX 77252 (22)
FDIC CERTIFICATE NUMBER: 03263
SCHEDULE RC-H - SELECTED BALANCE SHEET ITEMS FOR DOMESTIC OFFICES
<S> <C> <C> <C>
|------------|
| C440 |
|------------------| (---
| DOMESTIC OFFICES |
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RCON Bil Mil Thou |
----------------------------------------------------------------------------------------------------|------------------|
1. CUSTOMERS' LIABILITY TO THIS BANK ON ACCEPTANCES OUTSTANDING.....................................|2155 10,079 | 1.
2. BANK'S LIABILITY ON ACCEPTANCES EXECUTED AND OUTSTANDING.........................................|2920 10,079 | 2.
3. FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL...........................|1350 1,834,060 | 3.
4. FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE.......................|2800 699,126 | 4.
5. OTHER BORROWED MONEY.............................................................................|2850 84,172 | 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 370,769 | 7.
8. TOTAL ASSETS (EXCLUDES NET DUE FROM FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBFs)..|2192 12,486,519 | 8.
9. TOTAL LIABILITIES (EXCLUDES NET DUE TO FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, |//////////////////|
AND IBFs)........................................................................................|3129 11,101,331 | 9.
|------------------|
MEMORANDUM (TO BE COMPLETED ONLY BY BANKS WITH IBFs AND OTHER "FOREIGN" OFFICES)
EITHER |------------------|
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.
|------------------|
SCHEDULE RC-I - SELECTED ASSETS AND LIABILITIES OF IBFs
|------------|
TO BE COMPLETED ONLY BY BANKS WITH IBFs AND OTHER "FOREIGN" OFFICES. | C445 |
|------------------| (---
DOLLAR AMOUNTS IN THOUSANDS |RCFN Bil Mil Thou |
----------------------------------------------------------------------------------------------------|------------------|
1. TOTAL IBF ASSETS OF THE CONSOLIDATED BANK (COMPONENT OF SCHEDULE RC, ITEM 12)....................|2133 0 | 1.
2. TOTAL IBF LOANS AND LEASE FINANCING RECEIVABLES (COMPONENT OF SCHEDULE RC-C, ITEM 12, |//////////////////|
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
COLUMN A)........................................................................................|2076 0 | 2.
3. IBF COMMERCIAL AND INDUSTRIAL LOANS (COMPONENT OF SCHEDULE RC-C, 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.
|------------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-13
HOUSTON, TX 77252 (23)
FDIC CERTIFICATE NUMBER: 03263
SCHEDULE RC-K - QUARTERLY AVERAGES (1)
<S> <C> <C> <C> <C>
|------------|
| C455 | (---
|------------------|
DOLLAR AMOUNTS IN THOUSANDS| Bil Mil Thou |
-------------------------------------------------------------------------------------------------|------------------|
ASSETS |//////////////////|
1. INTEREST-BEARING BALANCES DUE FROM DEPOSITORY INSTITUTIONS..............................|RCFD|3381 5,011 | 1.
2. U.S. TREASURY SECURITIES AND U.S. GOVERNMENT AGENCY AND CORPORATION OBLIGATONS..........|RCFD|3382 1,598,015 | 2.
3. SECURITIES ISSUED BY STATES & POLITICAL SUBDIVISIONS IN THE U.S. .......................|RCFD|3383 1,289 | 3.
4. a. OTHER DEBT SECURITIES ...............................................................|RCFD|3647 323,783 | 4.a.
b. EQUITY SECURITES (INCLUDES INVESTMENTS IN MUTUAL FUNDS AND FEDERAL RESERVE STOCK) ...|RCFD|3648 13,161 | 4.b.
5. FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL IN DOMESTIC |//////////////////|
OFFICES OF THE BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBFs.............|RCFD|3365 1,512,195 | 5.
6. LOANS: |//////////////////|
a. LOANS IN DOMESTIC OFFICES: |//////////////////|
(1) TOTAL LOANS.......................................................................|RCON|3360 6,465,985 | 6.a.(1)
(2) LOANS SECURED BY REAL ESTATE ....................................................|RCON|3385 1,330,874 | 6.a.(2)
(3) LOANS TO FINANCE AGRICULTURAL PRODUCTION AND OTHER LOANS TO FARMERS...............|RCON|3386 64,891 | 6.a.(3)
(4) COMMERCIAL AND INDUSTRIAL LOANS...................................................|RCON|3387 2,540,806 | 6.a.(4)
(5) LOANS TO INDIVIDUALS FOR HOUSEHOLD, FAMILY AND OTHER PERSONAL EXPENDITURES........|RCON|3388 800,448 | 6.a.(5)
(6) OBLIGATIONS (OTHER THAN SECURITIES AND LEASES) OF STATES AND |//////////////////|
POLITICAL SUBDIVISIONS IN THE U.S.................................................|RCON|3389 64,668 | 6.a.(6)
b. TOTAL LOANS IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBFs............|RCFN|3360 233,074 | 6.b.
7. ASSETS HELD IN TRADING ACCOUNTS.........................................................|RCFD|3401 29,311 | 7.
8. LEASE FINANCING RECEIVABLES (NET OF UNEARNED INCOME)....................................|RCFD|3484 207,273 | 8.
9. TOTAL ASSETS............................................................................|RCFD|3368 12,156,521 | 9.
LIABILITIES |//////////////////|
10. INTEREST-BEARING TRANSACTION ACCOUNTS IN DOMESTIC OFFICES (NOW ACCOUNTS, ATS ACCOUNTS, |//////////////////|
AND TELEPHONE AND PREAUTHORIZED TRANSFER ACCOUNTS)(EXCLUDE DEMAND DEPOSITS).............|RCON|3485 948,196 | 10.
11. NONTRANSACTION ACCOUNTS IN DOMESTIC OFFICES: |//////////////////|
a. MONEY MARKET DEPOSIT ACCOUNTS (MMDAs)................................................|RCON|3486 1,351,954 | 11.a.
b. OTHER SAVINGS DEPOSITS...............................................................|RCON|3487 1,517,265 | 11.b.
c. TIME CERTIFICATES OF DEPOSIT OF $100,000 OR MORE.....................................|RCON|3345 498,614 | 11.c.
d. ALL OTHER TIME DEPOSITS..............................................................|RCON|3469 1,417,028 | 11.d.
12. INTEREST-BEARING DEPOSITS IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBFs.|RCFN|3404 383,660 | 12.
13. FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE IN DOMESTIC |//////////////////|
OFFICES OF THE BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBFs.............|RCFD|3353 561,298 | 13.
14. OTHER BORROWED MONEY....................................................................|RCFD|3355 72,100 | 14.
|-----------------------|
-----------
(1) FOR ALL ITEMS, BANKS HAVE THE OPTION OF REPORTING EITHER (1) AN AVERAGE OF DAILY FIGURES FOR THE QUARTER,
OR (2) AN AVERAGE OF WEEKLY FIGURES (I.E., THE WEDNESDAY OF EACH WEEK OF THE QUARTER).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-14
HOUSTON, TX 77252 (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.
<S> <C> <C> <C>
|-----------|
| C460 | (---
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou|
------------------------------------------------------------------------------------------|-----------------|
1. UNUSED COMMITMENTS: |/////////////////|
a. REVOLVING, OPEN-END LINES SECURED BY 1-4 FAMILY RESIDENTIAL PROPERTIES, E.G., HOME |/////////////////|
EQUITY LINES.......................................................................|3814 0 | 1.a.
b. CREDIT CARD LINES..................................................................|3815 0 | 1.b.
c. COMMERCIAL REAL ESTATE, CONSTRUCTION, AND LAND DEVELOPMENT: |/////////////////|
(1) COMMITMENTS TO FUND LOANS SECURED BY REAL ESTATE ..............................|3816 119,696 | 1.c.(1)
(2) COMMITMENTS TO FUND LOANS NOT SECURED BY REAL ESTATE ..........................|6550 136,720 | 1.c.(2)
d. SECURITIES UNDERWRITING............................................................|3817 0 | 1.d.
e. OTHER UNUSED COMMITMENTS...........................................................|3818 5,704,926 | 1.e.
2. FINANCIAL STANDBY LETTERS OF CREDIT AND FOREIGN OFFICE GUARANTEES.....................|3819 1,001,844 | 2.
a. AMOUNT OF FINANCIAL STANDBY LETTERS OF CREDIT CONVEYED TO OTHERS ..................|3820 98,232 | 2.a.
3. PERFORMANCE STANDBY LETTERS OF CREDIT AND FOREIGN OFFICE GUARANTEES...................|3821 44,623 | 3.
a. AMOUNT OF PERFOMANCE STANDBY LETTERS OF CREDIT CONVEYED TO OTHERS .................|3822 23,543 | 3.a.
4. COMMERCIAL AND SIMILAR LETTERS OF CREDIT..............................................|3411 203,701 | 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 569,802 | 8.
9. MORTGAGES TRANSFERRED (I.E. SOLD OR SWAPPED) WITH RECOURSE THAT HAVE BEEN TREATED |/////////////////|
AS SOLD FOR CALL REPORT PURPOSES: |/////////////////|
a. FNMA AND FHLMC RESIDENTIAL MORTGAGE LOAN POOLS: |/////////////////|
(1) OUTSTANDING PRINCIPAL BALANCE OF MORTGAGES TRANSFERRED AS OF THE REPORT DATE....|3650 0 | 9.a.(1)
(2) AMOUNT OF RECOURSE EXPOSURE ON THESE MORTGAGES AS OF THE REPORT DATE............|3651 0 | 9.a.(2)
b. PRIVATE (NONGOVERNMENT-ISSUED OR GUARANTEED) RESIDENTIAL MORTGAGE LOAN POOLS: |/////////////////|
(1) OUTSTANDING PRINCIPAL BALANCE OF MORTGAGES TRANSFERRED AS OF THE REPORT DATE....|3652 0 | 9.b.(1)
(2) AMOUNT OF RECOURSE EXPOSURE ON THESE MORTGAGES AS OF THE REPORT DATE............|3653 0 | 9.b.(2)
c. FARMER MAC AGRICULTURAL MORTGAGE LOAN POOLS: |/////////////////|
(1) OUTSTANDING PRINCIPAL BALANCE OF MORTGAGES TRANSFERRED AS OF THE REPORT DATE....|3654 0 | 9.c.(1)
(2) AMOUNT OF RECOURSE EXPOSURE ON THESE MORTGAGES AS OF THE REPORT DATE............|3655 0 | 9.c.(2)
10. WHEN-ISSUED SECURITIES: |/////////////////|
a. GROSS COMMITMENTS TO PURCHASE......................................................|3434 297,650 | 10.a.
b. GROSS COMMITMENTS TO SELL..........................................................|3435 40,445 | 10.b.
11. INTEREST RATE CONTRACTS (EXCLUDE WHEN-ISSUED SECURITIES): |/////////////////|
a. NOTIONAL VALUE OF INTEREST RATE SWAPS..............................................|3450 5,696,646 | 11.a.
b. FUTURES AND FORWARD CONTRACTS......................................................|3823 654,194 | 11.b.
c. OPTION CONTRACTS (E.G. OPTIONS ON TREASURIES): |/////////////////|
(1) WRITTEN OPTION CONTRACTS.......................................................|3824 424,792 | 11.c.(1)
(2) PURCHASED OPTION CONTRACTS.....................................................|3825 1,423,892 | 11.c.(2)
12. FOREIGN EXCHANGE RATE CONTRACTS: |/////////////////|
a. NOTIONAL VALUE OF EXCHANGE SWAPS (E.G. CROSS-CURRENCY SWAPS).......................|3826 0 | 12.a.
b. COMMITMENTS TO PURCHASE FOREIGN CURRENCIES AND U.S. DOLLAR EXCHANGE (SPOT, |/////////////////|
FORWARD, AND FUTURES)..............................................................|3415 899,292 | 12.b.
c. OPTION CONTRACTS (E.G. OPTIONS ON FOREIGN CURRENCY): |/////////////////|
(1) WRITTEN OPTION CONTRACTS.......................................................|3827 16,308 | 12.c.(1)
(2) PURCHASED OPTION CONTRACTS.....................................................|3828 16,308 | 12.c.(2)
|-----------------|
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-15
HOUSTON, TX 77252 (25)
FDIC CERTIFICATE NUMBER: 03263
SCHEDULE RC-L - CONTINUED
<S> <C> <C> <C>
|-----------|
| C461 | (---
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou|
-------------------------------------------------------------------------------------------|-----------------|
13. CONTRACTS ON OTHER COMMODITIES AND EQUITIES: |/////////////////|
a. NOTIONAL VALUE OF OTHER SWAPS (E.G. OIL SWAPS)......................................|3829 2,177 | 13.a.
b. FUTURES AND FORWARD CONTRACTS (E.G. STOCK INDEX AND COMMODITY - PRECIOUS METALS, |/////////////////|
WHEAT, COTTON, LIVESTOCK - CONTRACTS)...............................................|3830 0 | 13.b.
c. OPTION CONTRACTS (E.G. OPTIONS ON COMMODITIES, INDIVIDUAL STOCKS AND STOCK INDEXES):|/////////////////|
(1) WRITTEN OPTION CONTRACTS........................................................|3831 0 | 13.c.(1)
(2) PURCHASED OPTION CONTRACTS .....................................................|3832 0 | 13.c.(2)
14. ALL OTHER OFF-BALANCE SHEET LIABILITIES (ITEMIZE AND DESCRIBE EACH COMPONENT OF THIS |/////////////////|
ITEM OVER 25% OF SCHEDULE RC, ITEM 28, "TOTAL EQUITY CAPTIAL").........................|3430 0 | 14.
|----| |-----------------|-----------------|
a. |3555| 0 |3555| 0 |/////////////////| 14.a.
b. |3556| 0 |3556| 0 |/////////////////| 14.b.
c. |3557| 0 |3557| 0 |/////////////////| 14.c.
d. |3558| 0 |3558| 0 |/////////////////| 14.d.
|----| |-----------------|-----------------|
15. ALL OTHER OFF-BALANCE SHEET ASSETS (ITEMIZE AND DESCRIBE EACH COMPONENT OF THIS |/////////////////|
ITEM OVER 25% OF SCHEDULE RC, ITEM 28, "TOTAL EQUITY CAPTIAL").........................|3430 0 | 15.
|----| |-----------------|-----------------|
a. |5592| 0 |5592| 0 |/////////////////| 15.a.
b. |5593| 0 |5593| 0 |/////////////////| 15.b.
c. |5594| 0 |5594| 0 |/////////////////| 15.c.
d. |5595| 0 |5595| 0 |/////////////////| 15.d.
|----| |-----------------|-----------------|
MEMORANDA |-----------------|
DOLLAR AMOUNTS IN THOUSANDS | Bil Mil Thou|
-------------------------------------------------------------------------------------------|-----------------|
1. LOANS ORIGINATED BY THE REPORTING BANK THAT HAVE BEEN SOLD OR PARTICIPATED TO |/////////////////|
OTHERS DURING THE CALENDAR QUARTER ENDING WITH THE REPORT DATE (EXCLUDE THE PORTIONS |/////////////////|
OF SUCH LOANS RETAINED BY THE REPORTING BANK; SEE INSTRUCTIONS FOR OTHER EXCLUSIONS)....|3431 707,853 | M.1.
2. LOANS PURCHASED BY THE REPORTING BANK DURING THE CALENDAR QUARTER ENDING WITH |/////////////////|
THE REPORT DATE (SEE INSTRUCTIONS FOR EXCLUSIONS).......................................|3488 75,362 | M.2.
3. UNUSED COMMITMENTS WITH AN ORIGINAL MATURITY (1) 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 4,176,178 | M.3.
a. PARTICIPATIONS IN COMMITMENTS WITH AN ORIGINAL MATURITY (1) EXCEEDING ONE |/////////////////|
YEAR CONVEYED TO OTHERS ............................................................|3834 206,772 | M.3.a.
4. TO BE COMPLETED ONLY BY BANKS WITH $1 BILLION OR MORE IN TOTAL ASSETS: |/////////////////|
STANDBY LETTERS OF CREDIT AND FOREIGN OFFICE GUARANTEES (BOTH FINANCIAL AND PERFORMANCE)|/////////////////|
ISSUED TO NON-U.S. ADDRESSEES (DOMICILE) INCLUDED IN ITEMS 2 AND 3 ABOVE................|3377 26,763 | M.4.
5. TO BE COMPLETED FOR THE SEPTEMBER REPORT ONLY: |/////////////////|
INSTALLMENT LOANS TO INDIVIDUALS FOR HOUSEHOLD, FAMILY, AND OTHER PERSONAL EXPENDITURES |/////////////////|
THAT HAVE BEEN SECURITIZED AND SOLD WITHOUT RECOURSE (WITH SERVICING RETAINED), AMOUNTS |/////////////////|
OUSTANDING BY TYPE OF LOAN: |/////////////////|
a. LOANS TO PURCHASE PRIVATE PASSENGER AUTOMOBILES......................................|2741 0 | M.5.a.
b. CREDIT CARDS AND RELATED PLANS.......................................................|2742 0 | M.5.b.
c. ALL OTHER CONSUMER INSTALLMENT CREDIT (INCLUDING MOBILE HOME LOANS)..................|2743 0 | M.5.c.
|-----------------|
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-16
HOUSTON, TX 77252 (26)
<S> <C> <C> <C>
|------------|
SCHEDULE RC-M - MEMORANDA | C465 | (---
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou |
--------------------------------------------------------------------------------------------------|------------------|
1. EXTENSIONS OF CREDIT BY THE REPORTING BANK TO ITS EXECUTIVE OFFICERS, DIRECTORS, PRINCIPAL |//////////////////|
SHAREHOLDERS, AND THEIR RELATED INTERESTS AS OF THE REPORT DATE: |//////////////////|
a. AGGREGATE AMOUNT OF ALL EXTENSIONS OF CREDIT TO ALL EXECUTIVE OFFICERS, DIRECTORS, PRINCIPAL|//////////////////|
SHAREHOLDERS, AND THEIR RELATED INTERESTS...................................................|6164 841,540 | 1.a.
b. NUMBER OF EXECUTIVE OFFICERS, DIRECTORS, AND PRINCIPAL SHAREHOLDERS TO WHOM THE AMOUNT |//////////////////|
OF ALL EXTENSIONS OF CREDIT BY THE REPORTING BANK (INCLUDING EXTENSIONS OF |//////////////////|
CREDIT TO RELATED INTERESTS) EQUALS OR EXCEEDS THE LESSER OF $500,000 OR |//////////////////|
5 PERCENT OF TOTAL CAPITAL AS DEFINED FOR THIS PURPOSE IN AGENCY REGULATIONS................|6165 25 | 1.b.
2. FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL WITH U.S. BRANCHES |//////////////////|
AND AGENCIES OF FOREIGN BANKS(1) (INCLUDED IN SCHEDULE RC, ITEMS 3.a. AND 3.b).................|3405 0 | 2.
3. NOT APPLICABLE. |//////////////////|
4. OUSTANDING 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 4,022 | 5.a.
b. NON-U.S. ADDRESSEES (DOMICILE)..............................................................|2104 6,057 | 5.b.
6. INTANGIBLE ASSETS: |//////////////////|
a. MORTGAGE SERVICING RIGHTS...................................................................|3164 5,725 | 6.a.
b. OTHER IDENTIFIABLE INTANGIBLE ASSETS: |//////////////////|
(1) PURCHASED CREDIT CARD RELATIONSHIPS.....................................................|5506 0 | 6.b.(1)
(2) ALL OTHER IDENTIFIABLE INTANGIBLE ASSETS................................................|5507 150,431 | 6.b.(2)
c. GOODWILL....................................................................................|3163 164,392 | 6.c.
d. TOTAL (SUM OF ITEMS 6.a. THROUGH 6.c.) (MUST EQUAL SCHEDULE RC, ITEM 10)....................|2143 320,548 | 6.d.
e. INTANGIBLE ASSETS THAT HAVE BEEN GRANDFATHERED FOR REGULATORY CAPITAL PURPOSES |6442 0 | 6.e.
|------------------|
|------------------|
|RCFD | YES | NO |
7. DOES YOUR BANK HAVE ANY MANDATORY CONVERTIBLE DEBT THAT IS PART OF YOUR PRIMARY OR |------------------|
SECONDARY CAPITAL? ...........................................................................|6167 0 | 7.
|------------------|
|RCFD |Bil Mil Thou|
IF YES, CONTINUE BELOW: |------------------|
a. TOTAL EQUITY CONTRACT NOTES, GROSS .........................................................|3290 0 | 7.a.
b. COMMON OR PERPETUAL PREFERRED STOCK DEDICATED TO REDEEM THE ABOVE NOTES.....................|3291 0 | 7.b.
c. TOTAL EQUITY COMMITMENT NOTES, GROSS........................................................|3293 0 | 7.c.
d. COMMON OR PERPETUAL PREFERRED STOCK DEDICATED TO REDEEM THE ABOVE NOTES.....................|3294 0 | 7.d.
e. TOTAL (ITEM 7.a. MINUS 7.b. PLUS 7.c. MINUS 7.d.)...........................................|3295 0 | 7.e.
|------------------|
_____________________
(1) DO NOT REPORT FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL
WITH OTHER COMMERCIAL BANKS IN THE U.S. IN THIS ITEM.
CERT: 03263 00373 STBK 48-3926 09-30-93
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-17
HOUSTON, TX 77252 (27)
<S> <C> <C> <C>
SCHEDULE RC-M - CONTINUED
|------------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou |
--------------------------------------------------------------------------------------------------|------------------|
8.a. OTHER REAL ESTATE OWNED: |//////////////////|
(1) DIRECT AND INDIRECT INVESTMENTS IN REAL ESTATE VENTURES..................................|5372 5,690 | 8.a.(1)
(2) ALL OTHER REAL ESTATE OWNED..............................................................|//////////////////|
(a) CONSTRUCTION AND LAND DEVELOPMENT IN DOMESTIC OFFICES.................................|5508 59,732 | 8.a.(2)(a)
(b) FARMLAND IN DOMESTIC OFFICES..........................................................|5509 2,560 | 8.a.(2)(b)
(c) 1-4 FAMILY RESIDENTIAL PROPERTIES IN DOMESTIC OFFICES.................................|5510 1,081 | 8.a.(2)(c)
(d) MULTIFAMILY (5 OR MORE) RESIDENTIAL PROPERTIES IN DOMESTIC OFFICES....................|5511 0 | 8.a.(2)(d)
(e) NONFARM NONRESIDENTIAL PROPERTIES IN DOMESTIC OFFICES.................................|5512 51,269 | 8.a.(2)(e)
(f) IN FOREIGN OFFICES....................................................................|5513 0 | 8.a.(2)(f)
(3) TOTAL (SUM OF ITEMS 8.a.(1) AND 8.a.(2)) (MUST EQUAL SCHEDULE RC, ITEM 7)................|2150 120,332 | 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 0 | 8.b.(2)
(3) TOTAL (SUM OF ITEMS 8.b.(1) AND 8.b.(2)) (MUST EQUAL SCHEDULE RC, ITEM 8)................|2130 0 | 8.b.(3)
c. TOTAL ASSETS OF UNCONSOLIDATED SUBSIDIARIES AND ASSOCIATED COMPANIES.........................|5376 0 | 8.c.
9. NONCUMULATIVE PERPETUAL PREFERRED STOCK AND RELATED SURPLUS INCLUDED IN SCHEDULE RC. ITEM 23, |//////////////////|
"PERPETUAL PREFERRED STOCK AND RELATED SURPLUS"................................................|3778 0 | 9.
|------------------|
MEMORANDUM |------------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou |
--------------------------------------------------------------------------------------------------|------------------|
1. INTERBANK HOLDINGS OF CAPITAL INSTRUMENTS (TO BE COMPLETED FOR THE DECEMBER REPORT ONLY): |//////////////////|
a. RECIPROCAL HOLDINGS OF BANKING ORGANIZATIONS' CAPITAL INSTRUMENTS...........................|3836 0 | M.1.a.
b. NONRECIPROCAL HOLDINGS OF BANKING ORGANIZATIONS' CAPITAL INSTRUMENTS........................|3837 0 | M.1.b.
|------------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-18
HOUSTON, TX 77252 (28)
SCHEDULE RC-N - PAST DUE AND NONACCRUAL LOANS, LEASES, AND OTHER ASSETS |------------|
| C470 | (--
THE FFIEC REGARDS THE INFORMATION REPORTED IN ALL OF MEMORANDUM|-----------------|-----------------|-----------------|
ITEM 1, IN ITEMS 1 THROUGH 10, COLUMN A, AND IN MEMORANDUM | (Column A) | (Column B) | (Column C) |
ITEMS 2 AND 3, COLUMN A, AS CONFIDENTIAL. | Past due |Past due 90 | Nonaccrual |
|30 through 89 |days or more | |
|days and still |and still | |
| accruing | accruing | |
|-----------------|-----------------|-----------------|
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou|RCFD Bil Mil Thou|RCFD Bil Mil Thou|
---------------------------------------------------------------|-----------------|-----------------|-----------------|
1. LOANS SECURED BY REAL ESTATE: |/////////////////|/////////////////|/////////////////|
a. TO U.S. ADDRESSEES (DOMICILE)............................|1245 16,366 |1246 56,073 |1247 70,816 | 1.a.
b. TO NON-U.S. ADDRESSEES (DOMICILE)........................|1248 0 |1249 0 |1250 0 | 1.b.
2. LOANS TO DEPOSITORY INSTITUTIONS AND ACCEPTANCES OF OTHER |/////////////////|/////////////////|/////////////////|
BANKS: |/////////////////|/////////////////|/////////////////|
a. TO U.S. BANKS AND OTHER U.S. DEPOSITORY INSTITUTIONS.....|5377 0 |5378 0 |5379 0 | 2.a.
b. TO FOREIGN BANKS.........................................|5380 0 |5381 0 |5382 0 | 2.b.
3. LOANS TO FINANCE AGRICULTURAL PRODUCTION AND OTHER LOANS |/////////////////|/////////////////|/////////////////|
TO FARMERS..................................................|1594 34 |1597 2,084 |1583 6,868 | 3.
4. COMMERCIAL AND INDUSTRIAL LOANS: |/////////////////|/////////////////|/////////////////|
a. TO U.S. ADDRESSEES (DOMICILE)............................|1251 20,973 |1252 40,002 |1253 31,433 | 4.a.
b. TO NON-U.S. ADDRESSEES (DOMICILE)........................|1254 225 |1255 314 |1256 2,668 | 4.b.
5. LOANS TO INDIVIDUALS FOR HOUSEHOLD, FAMILY, AND OTHER |/////////////////|/////////////////|/////////////////|
PERSONAL EXPENDITURES: |/////////////////|/////////////////|/////////////////|
a. CREDIT CARDS AND RELATED PLANS...........................|5383 788 |5384 86 |5385 0 | 5.a.
b. OTHER (INCLUDES SINGLE PAYMENT, INSTALLMENT, AND ALL |/////////////////|/////////////////|/////////////////|
STUDENT LOANS............................................|5386 14,664 |5387 16,070 |5388 1,142 | 5.b.
6. LOANS TO FOREIGN GOVERNMENTS AND OFFICIAL INSTITUTIONS......|5389 0 |5390 0 |5391 14,864 | 6.
7. ALL OTHER LOANS.............................................|5459 3,737 |5460 3,248 |5461 8,667 | 7.
8. LEASE FINANCING RECEIVABLES: |/////////////////|/////////////////|/////////////////|
a. OF U.S. ADDRESSEES (DOMICILE)............................|1257 0 |1258 0 |1259 1,155 | 8.a.
b. OF NON-U.S. ADDRESSEES (DOMICILE)........................|1271 0 |1272 0 |1791 0 | 8.b.
9. DEBT SECURITIES AND OTHER ASSETS (EXCLUDE OTHER REAL |/////////////////|/////////////////|/////////////////|
ESTATE OWNED AND OTHER REPOSSESSED ASSETS)..................|5392 0 |5393 0 |5394 52 | 9.
|-----------------------------------------------------|
AMOUNTS REPORTED IN ITEMS 1 THROUGH 8 ABOVE INCLUDES GUARANTEED AND UNGUARANTEED PORTIONS OF PAST DUE AND NONACCRUAL
LOANS AND LEASES. REPORT IN ITEM 10 BELOW GUARANTEED LOANS AND LEASES INCLUDED IN ITEMS 1 THROUGH 8 ABOVE.
|-----------------|-----------------|-----------------|
|RCFD Bil Mil Thou|RCFD Bil Mil Thou|RCFD Bil Mil Thou|
|-----------------|-----------------|-----------------|
10. LOANS AND LEASES REPORTED IN 1 THROUGH 8 WHICH ARE WHOLLY |/////////////////|/////////////////|/////////////////|
OR PARTIALLY GUARANTEED BY THE U.S. GOVERNMENT.............|5612 17,147 |5613 84,011 |5614 81,407 | 10.
10.a. GUARANTEED PORTION OF LOANS AND LEASES INCLUDED IN ITEM |/////////////////|/////////////////|/////////////////|
10 ABOVE.................................................|5615 16,583 |5616 80,208 |5617 77,347 | 10.a.
|-----------------|-----------------|-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-19
HOUSTON, TX 77252 (29)
SCHEDULE RC-N CONTINUED
|------------|
| C473 | (--
|-----------------|-----------------|-----------------|
MEMORANDUM DOLLAR AMOUNT IN THOUSANDS |RCFD Bil Mil Thou|RCFD Bil Mil Thou|RCFD Bil Mil Thou|
---------------------------------------------------------------|-----------------|-----------------|-----------------|
1. RESTRUCTURED LOANS AND LEASES INCLUDED IN SCHEDULE RC-N, |/////////////////|/////////////////|/////////////////|
ITEMS 1 THROUGH 8 ABOVE.....................................|1658 0 |1659 0 |1661 1,137 | M.1.
2. LOANS TO FINANCE COMMERCIAL REAL ESTATE, CONSTRUCTION, AND |/////////////////|/////////////////|/////////////////|
LAND DEVELOPMENT ACTIVITIES (NOT SECURED BY REAL ESTATE) |/////////////////|/////////////////|/////////////////|
INCLUDED IN SCHEDULE RC-N, ITEMS 4 AND 7, ABOVE.............|6558 10,820 |6559 21 |6560 31 | M.2.
3. LOANS SECURED BY REAL ESTATE IN DOMESTIC OFFICES (INCLUDED |/////////////////|/////////////////|/////////////////|
IN SCHEDULE RC-N, ITEM 1, ABOVE): |/////////////////|/////////////////|/////////////////|
a. CONSTRUCTION AND LAND DEVELOPMENT........................|2759 2,959 |2769 16,484 |3492 19,960 | M.3.a.
b. SECURED BY FARMLAND......................................|3493 34 |3494 671 |3495 551 | M.3.b.
c. SECURED BY 1-4 FAMILY RESIDENTIAL PROPERTIES: |/////////////////|/////////////////|/////////////////|
(1) REVOLVING, OPEN-ENDED LOANS SECURED BY 1-4 FAMILY |/////////////////|/////////////////|/////////////////|
RESIDENTIAL PROPERTIES AND EXTENDED UNDER LINES |/////////////////|/////////////////|/////////////////|
OF CREDIT............................................|5398 0 |5399 0 |5400 0 | M.3.c.(1)
(2) ALL OTHER LOANS SECURED BY 1-4 FAMILY RESIDENTIAL |/////////////////|/////////////////|/////////////////|
PROPERTIES...........................................|5401 9,330 |5402 3,133 |5403 4,646 | M.3.c.(2)
d. SECURED BY MULTIFAMILY (5 OR MORE) RESIDENTIAL |/////////////////|/////////////////|/////////////////|
PROPERTIES...............................................|3499 768 |3500 1,998 |3501 6,121 | M.3.d.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
e. SECURED BY NONFARM NONRESIDENTIAL PROPERTIES.............|3502 3,275 |3503 33,787 |3504 39,538 | M.3.e.
|-----------------|-----------------|-----------------|
SCHEDULE RC-O - OTHER DATA FOR DEPOSIT INSURANCE ASSESSMENTS
AN AMENDED CERTIFIED STATEMENT SHOULD BE SUBMITTED TO THE FDIC IF THE AMOUNTS REPORTED IN
ITEMS 1 THROUGH 6 OF THIS SCHEDULE ARE AMENDED AFTER THE SEMIANNUAL CERTIFIED STATEMENT |------------|
ORIGINALLY COVERING THIS REPORT DATE HAS BEEN FILED WITH THE FDIC. | C475 | (---
|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RCON Bil Mil Thou|
---------------------------------------------------------------------------------------------------|-----------------|
1. UNPOSTED DEBITS (SEE INSTRUCTIONS): |/////////////////|
a. ACTUAL AMOUNT OF ALL UNPOSTED DEBITS.........................................................|0030 0 | 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 3080 | 4.a.
b. TIME AND SAVINGS DEPOSITS (1) OF CONSOLIDATED SUBSIDIARIES...................................|2351 15 | 4.b.
c. INTEREST ACCRUED AND UNPAID ON DEPOSITS OF CONSOLIDATED SUBSIDIARIES.........................|5514 0 | 4.c.
5. DEPOSITS OF INSURED BRANCHES IN PUERTO RICO AND U.S. TERRITORIES AND POSSESSIONS |/////////////////|
(INCLUDED IN SCHEDULE RC-E, PART II): |/////////////////|
a. DEMAND DEPOSITS IN INSURED BRANCHES..........................................................|2229 0 | 5.a.
b. TIME AND SAVINGS DEPOSITS (1) IN INSURED BRANCHES............................................|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.
|-----------------|
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-20
HOUSTON, TX 77252 (30)
SCHEDULE RC-O - CONTINUED
|-----------------|
DOLLAR AMOUNT IN THOUSAND| Bil Mil Thou|
ITEM 6 IS NOT APPLICABLE TO STATE NONMEMBER BANKS THAT HAVE NOT BEEN AUTHORIZED BY THE FEDERAL |-----------------|
RESERVE TO ACT AS PASS-THROUGH CORRESPONDENTS. |/////////////////|
|/////////////////|
6. RESERVE BALANCES ACTUALLY PASSED THROUGH TO THE FEDERAL RESERVE BY THE |/////////////////|
REPORTING BANK ON BEHALF OF ITS RESPONDENT DEPOSITORY INSTITUTIONS THAT ARE |/////////////////|
ALSO REFLECTED AS DEPOSIT LIABILITIES OF THE REPORTING BANK: |/////////////////|
a. AMOUNT REFLECTED IN DEMAND DEPOSITS (INCLUDED IN SCHEDULE RC-E, PART 1, MEMORANDUM |/////////////////|
ITEM 4.a.).....................................................................................|2314 2,352 | 6.a.
b. AMOUNT REFLECTED IN TIME AND SAVINGS DEPOSITS (1) (INCLUDED IN SCHEDULE RC-E, PART 1, |/////////////////|
MEMORANDUM ITEM 4.b.)..........................................................................|2315 0 | 6.b.
7. UNAMORTIZED PREMIUMS AND DISCOUNTS ON TIME AND SAVINGS DEPOSITS:(1) |/////////////////|
a. UNAMORTIZED PREMIUMS...........................................................................|5516 9,211 | 7.b.
a. UNAMORTIZED DISCOUNTS..........................................................................|5517 0 | 7.b.
|-----------------|
8. TO BE COMPLETED BY BANKS WITH "OKAR DEPOSITS." |-----------------|
TOTAL "ADJUSTED ATTRIBUTABLE DEPOSITS" OF ALL THRIFTS ACQUIRED UNDER SECTION 5(d)(3) OF THE |/////////////////|
FEDERAL DEPOSIT INSURANCE ACT (FROM THE MOST RECENT OAKAR CERTIFIED STATEMENT ATTACH..............|5518 0 | 8.
|-----------------|
|-----------------|
9. DEPOSITS IN LIFELINE ACCOUNTS................................................................... |5596/////////////| 9.
|-----------------|
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
_________________
(1) FOR FDIC INSURANCE ASSESSMENT PURPOSES, "TIME AND SAVINGS DEPOSITS"
CONSISTS OF NONTRANSACTION ACCOUNTS AND ALL TRANSACTION ACCOUNTS OTHER THAN DEMAND DEPOSITS.
<S> <C> <C> <C> <C> <C>
MEMORANDUM (TO BE COMPLETED EACH QUARTER EXCEPT AS NOTED) |-----------------|
DOLLAR AMOUNT IN THOUSAND| Bil Mil Thou|
-----------------------------------------------------------------------------------------------------|-----------------|
1. TOTAL DEPOSITS IN DOMESTIC OFFICES OF THE BANK (SUM OF MEMORANDUM ITEMS 1.a.(1) AND 1.b.(1) |/////////////////|
MUST EQUAL SCHEDULE RC, ITEM 13.a.): |/////////////////|
a. DEPOSIT ACCOUNTS OF $100,000 OR LESS: |/////////////////|
(1) AMOUNT OF DEPOSIT ACCOUNTS OF $100,000 OR LESS ............................................|2702 4,559,401 | M.1.a.(1)
(2) NUMBER OF DEPOSIT ACCOUNTS OF $100,000 OR LESS (TO BE COMPLETED FOR THE JUNE |-------------|/////////////////|
REPORT ONLY).................................................................|3779 |/////////////////| M.1.a.(2)
b. DEPOSIT ACCOUNTS OF MORE THAN $100,000: |-------------|/////////////////|
(1) AMOUNT OF DEPOSIT ACCOUNTS OF MORE THAN $100,000 ............................|-------------|2710 4,367,024 | M.1.b.(1)
(2) NUMBER OF DEPOSIT ACCOUNTS OF MORE THAN $100,000 ............................|2722 8,165 |/////////////////| M.1.b.(2)
|-------------|-----------------|
2. ESTIMATED AMOUNT OF UNINSURED DEPOSITS IN DOMESTIC OFFICES OF THE BANK:
a. AN ESTIMATE OF YOUR BANK'S UNINSURED DEPOSITS CAN BE DETERMINED BY MULIPLYING THE NOUMBER
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 FROM THE AMOUNT OF DEPOSIT ACCOUNTS OF MORE
THAN $100,000 REPORTED IN MEMORANDUM ITEM 1.b.(1) ABOVE. |-----------------|
| YES | NO |
|/////////////////|
INDICATE IN THE APPROPRIATE BOX AT THE RIGHT WHETHER YOUR BANK HAS A METHOD OR PROCEDURE FOR |/////////////////|
DETERMINING A BETTER ESTIMATE OF UNINSURED DEPOSITS THAN THE ESTIMATE DESCRIBED ABOVE |6661 0 | M.2.a.
|-----------------|
| Bil Mil Thou|
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 | M.2.b.
|-----------------|
________________________________________________________________________________________________________________________
| C477 | (---
PERSON TO WHOM QUESTIONS ABOUT THE REPORT OF CONDITION AND INCOME SHOULD BE DIRECTED: |------------|
Karen Gatenby Vice President (713) 236-5263
------------------------------------------ ------------------------
NAME AND TITLE (TEXT 8901) AREA CODE AND PHONE NUMBER
(TEXT 8902)
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-21
HOUSTON, TX 77252 (31)
SCHEDULE RC-R -RISK-BASED CAPITAL
THIS SCHEDULE MUST BE COMPLETED BY ALL BANKS AS FOLLOWS: BANKS THAT REPORTED TOTAL ASSETS OF $1 BILLION OR MORE IN SCHEDULE RC,
ITEM 12, FOR JUNE 30, 1990, MUST COMPLETE ITEMS 2 THROUGH 9 AND MEMORANDUM ITEM 1. BANKS WITH ASSETS OF LESS THAN $1 BILLION
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MUST COMPLETE ITEMS 1 THROUGH 3 BELOW OR SCHEDULE RC-R IN ITS ENTIRETY, DEPENDING ON THEIR RESPONSE TO ITEM 1 BELOW.
|-----------|
| C480 | (---
1. TEST FOR DETERMINING THE EXTENT TO WHICH SCHEDULE RC-R MUST BE COMPLETED. TO BE COMPETED ONLY BY |-----------|
BANKS WITH TOTAL ASSETS OF LESS THAN $1 BILLION. INDICATE IN THE APPROPRIATE BOX AT THE RIGHT | YES NO |
WHETHER THE BANK HAS TOTAL CAPITAL GREATER THAN OR EQUAL TO EIGHT PERCENT OF ADJUSTED TOTAL |-----------------|
ASSETS .........................................................................................|6056 0 | 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 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.
<S> <C> <C> <C> <C> <C>
|-----------------|-----------------|
| (COLUMN A) | (COLUMN B) |
| SUBORDINATED | OTHER |
| DEBT (1) AND IN-| LIMITED-LIFE |
| TERMEDIATE TERM | CAPITAL |
ITEMS 2 AND 3 ARE TO BE COMPLETED BY ALL BANKS. | PREFERRED STOCK | INSTRUMENTS |
|-----------------|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Thou|RCFD Bil Mil Thou|
----------------------------------------------------------------------------------|-----------------|-----------------|
2. SUBORDINATE DEBT (1) AND OTHER LIMITED-LIFE CAPITAL INSTRUMENTS (ORIGINAL WEIG|/////////////////|/////////////////|
AVERAGE MATURITY OF AT LEAST FIVE YEARS) WITH A REMAINING MATURITY OF: |/////////////////|/////////////////|
a. ONE YEAR OR LESS...........................................................|3780 0 |3786 0 | 2.a.
b. OVER ONE YEAR THROUGH TWO YEARS............................................|3781 0 |3787 0 | 2.b.
c. OVER TWO YEARS THROUGH THREE YEARS.........................................|3782 0 |3788 0 | 2.c.
d. OVER THREE YEARS THROUGH FOUR YEARS........................................|3783 0 |3789 0 | 2.d.
e. OVER FOUR YEARS THROUGH FIVE YEARS.........................................|3784 0 |3790 0 | 2.e.
f. OVER FIVE YEARS............................................................|3785 320,000 |3791 0 | 2.f.
|-----------------|-----------------|
|-----------------|
|RCFD Bil Mil Tho|
3. TOTAL QUALIFYING CAPITAL (I.E. TIER 1 AND TIER 2 CAPITAL) ALLOWABLE UNDER THE RISK-BASED |-----------------|
CAPITAL GUIDELINES..............................................................................|3792 1,153,855 | 3.
|-----------------|
ITEMS 4-9 AND MEMORANDUM ITEM 1 ARE TO BE COMPLETED BY BANKS THAT ANSWERED NO TO
ITEM 1 ABOVE AND BY BANKS WITH TOTAL ASSETS OF $1 BILLION OR MORE. |-----------------|-----------------|
| (COLUMN A) | (COLUMN B) |
|-----------------|-----------------|
DOLLAR AMOUNTS IN THOUSANDS |RCFD Bil Mil Tho|RCFD Bil Mil Tho|
----------------------------------------------------------------------------------|-----------------|-----------------|
4. ASSETS AND CREDIT EQUIVALENT AMOUNTS OF OFF-BALANCE SHEET ITEMS ASSIGNED TO |/////////////////|/////////////////|
THE ZERO PERCENT RISK CATAGORY: |/////////////////|/////////////////|
a. ASSETS RECORDED ON THE BALANCE SHEET: |/////////////////|/////////////////|
(1) SECURITIES ISSUED BY, OTHER CLAIMS ON, AND CLAIMS UNCONDITIONALLY |/////////////////|/////////////////|
GUARANTEED BY, THE U.S. GOVERNMENT AND ITS AGENCIES AND OTHER OECD |/////////////////|/////////////////|
CENTRAL GOVERNMENTS....................................................|3794 1,089,694 |/////////////////| 4.a.(1)
(2) ALL OTHER..............................................................|3795 291,214 |/////////////////| 4.a.(2)
b. CREDIT EQIVALENT AMOUNT OF OFF-BALANCE SHEET ITEMS.........................|/////////////////|3796 0 | 4.b.
|-----------------|-----------------|
_____________________
(1) EXCLUDE MANDATORY CONVERTIBLE DEBT REPORTED IN SCHEDULE RC-M, ITEM 7.e, "TOTAL."
(2) DO NOT REPORT IN COLUMN B THE RISK-WEIGHTED AMOUNT OF ASSETS REPORTED IN COLUMN A.
CERT: 03263 00373 STBK 48-3926 09-30-93
TEXAS COMMERCE BANK NATIONAL ASSOCIATION FFIEC 031
P.O. BOX 2558 PAGE RC-22
HOUSTON, TX 77252 (32)
|-----------------|-----------------|
| (COLUMN A) | (COLUMN B) |
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
| ASSETS | CREDIT EQUIV- |
| RECORDED | ALENT AMOUNT |
SCHEDULE RC-R --CONTINUED | ON THE | OF OFF-BALANCE |
| BALANCE SHEET | SHEET ITEMS (1) |
|-----------------|-----------------|
DOLLAR AMOUNTS IN THOUSANDS | Bil Mil Tho| Bil Mil Tho|
----------------------------------------------------------------|-----------------|-----------------|
5. ASSETS AND CREDIT EQUIVALENT AMOUNTS OF OFF-BALANCE |/////////////////|/////////////////|
SHEET ITEMS ASSIGNED TO THE 20 PERCENT RISK CATAGORY: |/////////////////|/////////////////|
a. ASSETS RECORDED ON THE BALANCE SHEET: |/////////////////|/////////////////|
(1) CLAIMS CONDITIONALLY GUARANTEED BY THE U.S. GOVERN- |/////////////////|/////////////////|
MENT AND ITS AGENCIES AND OTHER OECD CENTRAL |/////////////////|/////////////////|
GOVERNMENTS..........................................|3798 789,949 |/////////////////| 5.a.(1)
(2) CLAIMS COLLATERALIZED BY SECURITIES ISSUED BY THE U.S|/////////////////|/////////////////|
GOVERNMENT AND ITS AGENCIES AND OTHER OECD CENTRAL |/////////////////|/////////////////|
GOVERNMENTS; BY SECURITIES ISSUED BY U.S. GOVERNMENT |/////////////////|/////////////////|
SPONSORED AGENCIES; AND BY CASH ON DEPOSIT...........|3799 67,939 |/////////////////| 5.a.(2)
(3) ALL OTHER............................................|3800 3,188,528 |/////////////////| 5.a.(3)
b. CREDIT EQUIVALENT AMOUNT OF OFF-BALANCE SHEET ITEMS......|/////////////////|3801 1,364,840 | 5.b.
6. ASSETS AND CREDIT EQUIVALENT AMOUNTS OF OFF-BALANCE |/////////////////|/////////////////|
SHEET ITEMS ASSIGNED TO THE 50 PERCENT RISK CATAGORY: |/////////////////|/////////////////|
a. ASSETS RECORDED ON THE BALANCE SHEET.....................|3802 295,484 |/////////////////| 6.a.
b. CREDIT EQUIVALENT AMOUNT OF OFF-BALANCE SHEET ITEMS......|/////////////////|3803 45,014 | 6.b.
7. ASSETS AND CREDIT EQUIVALENT AMOUNTS OF OFF-BALANCE |/////////////////|/////////////////|
SHEET ITEMS ASSIGNED TO THE 100 PERCENT RISK CATAGORY: |/////////////////|/////////////////|
a. ASSETS RECORDED ON THE BALANCE SHEET.....................|3804 7,170,861 |/////////////////| 7.a.
b. CREDIT EQUIVALENT AMOUNT OF OFF-BALANCE SHEET ITEMS......|/////////////////|3805 2,678,128 | 7.b.
8. ON-BALANCE SHEET VALUES (OR PORTIONS THEREOF) OF INTEREST |/////////////////|/////////////////|
RATE, FOREIGN EXCHANGE RATE, AND COMMODITY CONTRACTS WHICH |/////////////////|/////////////////|
HAVE A CAPITAL ASSESSMENT FOR THEIR OFF-BALANCE SHEET |/////////////////|/////////////////|
EXPOSURE UNDER THE RISK-BASED CAPITAL GUIDELINES AND THOSE |/////////////////|/////////////////|
CONTRACTS (E.G. FUTURES CONTRACTS) EXCLUDED FROM THE CALCU- |/////////////////|/////////////////|
LATION OF THE RISK-BASED CAPITAL RATIO (EXCLUDE MARGIN |/////////////////|/////////////////|
ACCOUNTS AND ACCRUED RECEIVABLES FROM THIS ITEM)............|3806 0 |/////////////////| 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. PLUS SCHEDULE RC-B, |/////////////////|/////////////////|
ITEM 6.a.(3), COLUMN A).....................................|3807 12,893,669 |/////////////////| 9.
|-----------------|-----------------|
|-----------------|-----------------|
MEMORANDUM | (COLUMN A) | (COLUMN B) |
| NOTIONAL | REPLACEMENT COST|
| PRINCIPAL VALUE | (MARKET VALUE) |
|-----------------|-----------------|
DOLLAR AMOUNTS IN THOUSANDS | Bil Mil Tho| Bil Mil Tho|
----------------------------------------------------------------|-----------------|-----------------|
1. NOTIONAL PRINCIPAL VALUE AND REPLACEMENT COST OF INTEREST |/////////////////|/////////////////|
RATE AND FOREIGN EXCHANGE RATE CONTRACTS (IN COLUMN B, RE- |/////////////////|/////////////////|
PORT ONLY THOSE CONTRACTS WITH A POSITIVE REPLACEMENT COST):|/////////////////|/////////////////|
a. INTEREST RATE CONTRACTS (EXCLUDE FUTURES CONTRACTS)......|/////////////////|3808 330,504 | M.1.a.
(1) WITH A REMAINING MATURITY OF ONE YEAR OR LESS........|3809 3,023,139 |/////////////////| M.1.a.(1)
(2) WITH A REMAINING MATURITY OF OVER ONE YEAR...........|3810 5,051,420 |/////////////////| M.1.a.(2)
b. FOREIGN EXCHANGE RATE CONTRACTS(EXCLUDE CONTRACTS WITH |/////////////////|/////////////////|
AN ORIGINAL MATURITY OF 14 DAYS OR LESS AND FUTURES |/////////////////|/////////////////|
CONTRACTS)...............................................|/////////////////|3811 5,887 | M.1.b.
(1) WITH A REMAINING MATURITY OF ONE YEAR OR LESS........|3812 336,137 |/////////////////| M.1.b.(1)
(2) WITH A REMAINING MATURITY OF OVER ONE YEAR...........|3813 3,717 |/////////////////| M.1.b.(2)
|-----------------|-----------------|
_____________________
(1) DO NOT REPORT IN COLUMN B THE RISK-WEIGHTED AMOUNT OF ASSETS REPORTED IN COLUMN A.
THIS PAGE IS TO BE COMPLETED BY NATIONAL BANKS ONLY PAGE 34
-----------------------------------------------------------------------------------------------------------------------------
| OMB NO. FOR OCC: 1557-0081
| EXPIRATION DATE: 02/28/93
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
(AFFIX LABEL HERE) |
| SPECIAL REPORT
| (TO BE COMPLETED BY NATIONAL BANKS ONLY)
| (DOLLAR AMOUNTS IN THOUSANDS)
| |---------|
| | C-700 |(-
|--------------------------------------------------
|CLOSE OF BUSINESS | FDIC CERTIFICATE NUMBER
|DATE |
| |
| 09-30-93 | 03263
-----------------------------------------------------------------------------------------------------------------------------
LOANS TO EXECUTIVE OFFICERS (COMPLETE AS OF EACH CALL REPORT DATE)
-----------------------------------------------------------------------------------------------------------------------------
THE FOLLOWING INFORMATION IS REQUIRED BY PUBLIC LAW 90-44,BUT DOES NOT CONSTITUTE A PART OF THE REPORT OF CONDITION. THE LAW
REQUIRES ALL NATIONAL BANKS TO FURNISH WITH EACH CONDITION REPORT A REPORT OF LOANS TO ITS EXECUTIVE OFFICERS MADE SINCE THE
DATE OF THE PREVIOUS REPORT OF CONDITION. DATA REGARDING INDIVIDUAL LOANS ARE NOT REQUIRED. IF NO SUCH LOANS WERE MADE DURING
THE PERIOD, INSERT "NONE" AGAINST SUBITEM (A). (EXCLUDE THE FIRST $5,000 OF INDEBTEDNESS OF EACH EXECUTIVE OFFICER UNDER BANK
CREDIT CARD PLAN.)
-----------------------------------------------------------------------------------------------------------------------------
a. NUMBER OF LOANS TO EXECUTIVE OFFICERS...............................................| 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 (EXAMPLE 9 3/4% - 9.75)....|7701| 0.00 % TO |7702| 0.00 | c.
----------------------------------------------------------------------------------------------------------------|
----------------------------------------------------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT |DATE (MONTH,DAY,YEAR)
|
|
|
----------------------------------------------------------------------------------------------------------------
NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED |AREA CODE/TELEPHONE NUMBER
|
Karen Gatenby Vice President | (713) 216-5263
|
----------------------------------------------------------------------------------------------------------------
</TABLE>
As filed with the Securities and Exchange Commission on January 12, 1994
Registration No. 22-. . . . .
-----------------------------------------------------------------
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 TRUST PURSUANT TO SECTION 305(b)(2)___
_______________
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Not Applicable
(Jurisdiction of incorporation or organization if not a U.S. national bank)
75-2238693
(I.R.S. Employer
Identification No.)
700 Louisiana, Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
Mary Jane Henson
NationsBank of Texas, National Association
700 Louisiana
Houston, Texas 77002
(713) 247-7812
(Name, address and telephone number of agent for service)
_________________
BROWNING-FERRIS INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
Delaware 74-1673682
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
757 N. Eldridge
Houston, Texas 77079
(Address of principal (Zip Code)
executive offices)
Subordinated Debt Securities
(Title of the indenture securities)
- -------------------------------------------------------------------
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington, D.C.
National Bank Examiners, Dallas, Texas
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of voting securities
of the trustee:
Col. A Col. B
Title of Class Amount outstanding
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, furnish the following
information:
(a) Title of the securities outstanding under each such other
indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship under any
such other indenture, including a statement as to how the indenture
securities will rank as compared with the securities issued under
such other indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 5. Interlocking directorates and similar relationships with the
obligor or underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the nature
of each such connection.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner and executive officer of each such underwriter.
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given
Name of owner Title of class beneficially in Co. C
- ----------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligation in
default by the trustee.
Col. A Co. B Col. C Col. D
Whether the Amount owned
securities are beneficially or held Percentage of class
voting or as collateral security represented by
nonvoting for obligations in amount given
Title of class securities default in Col. C
- ------------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee.
Col. A Co. B Col. C Col. D
Amount owned
beneficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C
- ------------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 10. Ownership or holdings by the trustee of voting securities of
certain affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities or a person who, to the knowledge
of the trustee (1) owns 10 percent or more of the voting securities of the
obligor or (2) is an affiliate, other than a subsidiary, of the obligor,
furnish the following information as to the voting securities of such
person.
Col. A Co. B Col. C Col. D
Amount owned
beneficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C
- ------------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 11. Ownership or holdings by the trustee of any securities of a
person owning 50 percent or more of the voting securities of the
obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of
the trustee, owns 50 percent or more of the voting securities of the
obligor, furnish the following information as to each class of securities
of such person any of which are so owned or held by the trustee.
Col. A Co. B Col. C Col. D
Amount owned
beneficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C
- ------------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
Col. A Col. B Col. C
Nature of Amount
Indebtedness Outstanding Date Due
------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 13. Defaults by the obligor.
(a) State whether there is or has been a default with respect
to the securities under this indenture. Explain the nature of any such
default.
There is not, nor has there been, a default with respect to the
securities under this indenture.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are outstanding,
or is trustee for more than one outstanding series of securities under
the indenture, state whether there has been a default under any such
indenture or series, identify the indenture or series affected, and
explain the nature of any such default.
There has not been a default under any such indenture or series.
Item 14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each
such affiliation.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 15. Foreign trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
Not applicable.
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
*1 A copy of the articles of association of the trustee as now in
effect.
*2 - A copy of the certificate of authority of the trustee to
commence business.
*3 - A copy of the authorization of the trustee to exercise
corporate trust powers.
*4 - A copy of the existing bylaws of the trustee.
5 - Not applicable.
6 - The consent of the trustee required by Section 321(b) of
the Act.
7 - A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
8 - Not applicable.
9 - Not applicable.
*Exhibits 1 through 4 were attached to the Statement of Eligibility
and Qualification, executed by NationsBank of Texas, National Association,
and filed as part of the Registration Statement (Registration No. 33-
47232) for registration under the Securities Act of 1933, as amended, of
Mobile Telecommunications Technologies Corp., and are incorporated herein
by reference.
In answering any item in this Statement of Eligibility and
Qualification which relates to matters peculiarly within the knowledge of
the obligor or of its partners, directors or executive officers, the
undersigned, NationsBank of Texas, National Association, has relied upon
information furnished to it by the obligor, and the undersigned disclaims
responsibility for the accuracy or completeness of such information.
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, NationsBank of Texas, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification
to be signed on its behalf by the undersigned, thereunto duly authorized,
all in the City of Houston and State of Texas, on the 11th day of January,
1994.
NATIONSBANK OF TEXAS,
National Association
By: /s/ Maryem H. Magee
----------------------------
Name: Maryem H. Magee
Title: Assistant Vice President
& Trust Officer
Exhibit 6
TRUSTEE'S CONSENT
NationsBank of Texas, National Association, as a condition to
qualification under the Trust Indenture Act of 1939, consents that reports
of examinations by federal, state, territorial, or district authorities,
pursuant to the provisions of said Act, may be furnished by such
authorities to the Securities and Exchange Commission of the United States
upon request of said Commission for said reports, as provided in Section
321(b) of said Trust Indenture Act of 1939.
Dated this 11th day of January, 1994.
NATIONSBANK OF TEXAS,
National Association
By: /s/ Maryem H. Magee
---------------------------------
Name: Maryem H. Magee
Title: Assistant Vice President
& Trust Officer
EXHIBIT 7
NATIONSBANK OF TEXAS, N.A. Call Date: 09/30/93 ST-BK: 48-2132 FFIEC 031
ONE NATIONSBANK PLAZA NC1-002-17-17 Page RC-1
CHARLOTTE, NC 28255 Vendor ID: D CERT: 27306 11
Transit Number: 11000055
Consolidated Report of Condition for Insured Commercial and
State-Chartered
Savings Banks for September 30, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
C400 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------
ASSETS
1. Cash and balance due from depository
institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances
and currency and coin (1) 0081 1,837,213 1.a
b. Interest-bearing balances (2) 0071 525,858 1.b
2. Securities (from Schedule RC-B) 0390 8,019,898 2.
3. Federal funds sold and securities pur-
chased under agreements to resell in
domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in
IBFs:
a. Federal funds sold 0276 3,584,044 3.a
b. Securities purchased under agreements
to resell 0277 57,000 3.b
4. Loans and Lease financing receivables:
a. Loans and Leases, net of unearned
income RCFD
----
(from Schedule RC-C) 2122 24,225,262 4.a
b. LESS: Allowance for loan
and Lease Losses 3123 166,500 4.b
c. LESS: Allocated transfer
risk reserve 3128 440 4.c
d. Loans and Leases, net of
unearned income, allowance,
and reserve (items 4.a. minus
4.b and 4.c) 2125 24,058,322 4.d
5. Assets held in trading accounts 2146 7,101 5.
6. Premises and fixed assets (including
capitalized leases) 2145 533,666 6.
7. Other real estate owned (from
Schedule RC-M) 2150 10,863 7.
8. Investments in unconsolidated sub-
sidiaries and associated companies (from
Schedule RC-M) 2130 3 8.
9. Customers' Liability to this bank on
acceptances outstanding 2155 115,652 9.
10. Intangible assets (from Schedule RC-M) 2143 288,914 10.
11. Other assets (from Schedule RC-F) 2160 1,249,608 11.
12. Total assets (sum of items 1 through 11) 2170 40,288,142 12.
- -----
(1) Includes cash items in process of collection and unposed debits.
(2) Includes time certificates of deposit not held in trading accounts.
C400 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------
LIABILITIES
13. Deposits: RCON
----
a. In domestic offices (sum of
totals of columns A and C from
Schedule RC-E, Part I) 2200 23,284,686 13.a
(1) Noninterest-bearing (1) 6631 4,713,609 13.a.1
(2) Interest-bearing 6636 18,571,077 13.a.2
b. In foreign offices, Edge and
Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, ----
part II) 2200 946,182 13.b
(1) Noninterest-bearing (1) 6631 3,107 13.b.1
(2) Interest-bearing 6636 943,075 13.b.2
14. Federal funds purchased and
securities sold under agreements
to repurchase in domestic offices
of the bank and of its Edge and
Agreement subsidiaries, and in RCFD
IBFs: ----
a. Federal funds purchased 0278 8,323,947 14.a
b. Securities sold under
agreements to repurchase 0279 1,534,967 14.b.
RCON
15. Demand notes issued ----
U.S. Treasury 2840 2,000,270 15.
RCFD
----
16. Other borrowed Money 2850 977,657 16.
17. Mortgage indebtedness and
obligations under capitalized
Leases 2910 11,004 17.
18. Bank's Liability on acceptances
executed and outstanding 2920 115,652 18.
19. Subordinated notes and
debentures 3200 301,434 19.
20. Other Liabilities
(from Schedule RC-G) 2930 541,657 20.
21. Total Liabilities (sum of
items 13 through 20) 2948 38,037,456 21.
22. Limited-Life preferred stock
and related surplus 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and
related surplus 3838 0 23.
24. Common Stock 3230 500,000 24.
25. Surplus (exclude all surplus
related to preferred stock) 3839 803,992 25.
26. a. Undivided profits and capital
reserves 3632 946,694 26.a
b. LESS: Net unrealized loss on
marketable equity
securities 0297 0 26.b
27. Cumulative foreign currency
translation adjustments 3284 0 29.
28. Total equity capital (sum of
items 23 through 27) 3210 2,250,686 28.
29. Total liabilities, limited-life
preferred stock, and equity
capital (sum of items 21, 22,
and 28) 3300 40,288,142 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 auditing
work performed for the bank by RCFD Number
independent external auditors as ---- ------------
of any date during 1992 6724 N/A M.1
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.
