As filed with the Securities and Exchange Commission on January 10, 1994
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------------------
Lowe's Companies, Inc.
(Exact name of registrant as specified in its charter)
North Carolina 56-0578072
(State or other jurisdiction of (I.R.S. Employer
incorporation) Identification No.)
P. O. Box 1111
North Wilkesboro, North Carolina 28656
(919) 651-4000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
-------------------------------
Harry B. Underwood II
Senior Vice President, Treasurer
and Chief Financial Officer
Lowe's Companies, Inc.
P. O. Box 1111
North Wilkesboro, North Carolina 28656
(919) 651-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
Copy to:
Lathan M. Ewers, Jr.
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219
-----------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ( )
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box. (X)
CALCULATION OF REGISTRATION FEE
<TABLE>
Proposed maximum Proposed maximum
Title of each class Amount to be offering price aggregate offering Amount of
of securities to be registered (1) registered(2)(3) per unit(3)(4) price(2)(3)(4)(5) registration fee(6)
- ---------------------------------- ---------------- ---------------- ------------------ -------------------
<S> <C> <C> <C> <C>
Debt Securities, Preferred Stock
(par value $5.00 per share),
Depositary Shares,(7) Common
Stock (par value $.50 per share)
and Preferred Share Purchase
Rights(8) . . . . . . . . . . . . -- -- $500,000,000 $172,415
</TABLE>
(1)This Registration Statement also covers such indeterminate amount of
securities as may be issued in exchange for, or upon conversion of, as the
case may be, the securities registered hereunder. In addition, any of the
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2)If any Debt Securities are issued at an original issue discount, then such
greater principal amount as shall result in an aggregate initial offering
price of $500,000,000. In no event will the aggregate initial offering
price of Debt Securities, Preferred Stock, Depositary Shares, Preferred
Share Purchase Rights and Common Stock issued under this Registration
Statement and not previously registered under the Securities Act of 1933,
as amended (the "Securities Act"), exceed $500,000,000.
(3)Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3 under the Securities Act.
(4)The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with, and at the time of, the
issuance by the Registrant of the securities registered hereunder.
(5)No separate consideration will be received for any securities registered
hereunder that are issued in exchange for, or upon conversion of, other
securities registered hereunder.
(6)Calculated pursuant to Rule 457(o) of the Rules and Regulations of the
Securities and Exchange Commission (the "Commission") under the Securities
Act.
(7)Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
the Registrant elects to offer to the public fractional interests in shares
of the Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional interests and such
shares will be issued to the Depositary Bank under the Deposit Agreement.
(8)The Rights to purchase Participating Cumulative Preferred Stock, Series A,
will be attached to and trade with shares of the Common Stock.
-----------------------
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 the
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
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.PROSPECTUS
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED __________ __, 199_
$500,000,000
Lowe's Companies, Inc.
Securities
------------------------------
Lowe's Companies, Inc. ("Lowe's" or the "Company") intends to issue from
time to time in one or more series up to $500,000,000 aggregate offering
price of its (i) unsecured debt securities ("Debt Securities"), which may be
either senior debt securities ("Senior Debt Securities") or subordinated debt
securities ("Subordinated Debt Securities"), (ii) shares of preferred stock,
par value $5.00 per share ("Preferred Stock"), which may be issued in the
form of depositary shares evidenced by depositary receipts ("Depositary
Shares"), or (iii) shares of common stock, par value $.50 per share ("Common
Stock"), on terms to be determined at the time of sale (the Debt Securities,
Preferred Stock, Depositary Shares and Common Stock are referred to
collectively as the "Securities"). The Securities offered hereby (the
"Offered Securities") may be offered separately or as units with other
Offered Securities, in separate series in amounts, at prices and on terms to
be determined at the time of sale and to be set forth in a supplement to this
Prospectus (a "Prospectus Supplement").
The Senior Debt Securities will rank equally with all other
unsubordinated and unsecured indebtedness of the Company. The Subordinated
Debt Securities will be subordinated in right of payment to all existing and
future Senior Indebtedness, as defined in the Senior Indenture described
herein. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered, such as, where applicable, (i) in the case of
Debt Securities, the specific designation (including whether senior or
subordinated), aggregate principal amount, denomination, maturity, premium,
if any, priority, interest rate (which may be variable or fixed), time of
payment of any premium and any interest, terms for optional redemption or
repayment or for sinking fund payments, terms for conversion into or exchange
for other Offered Securities, and the initial public offering price; (ii) in
the case of Preferred Stock, the specific title and stated value, number of
shares or fractional interests therein, and the dividend, liquidation,
redemption, conversion, voting and other rights, the initial public offering
price, and whether interests in the Preferred Stock will be represented by
Depositary Shares; (iii) in the case of Common Stock, the initial offering
price; and (iv) in the case of all Offered Securities, whether such Offered
Security will be offered separately or as a unit with other Offered
Securities, will be set forth in a Prospectus Supplement. The Prospectus
Supplement will also contain information, where applicable, about certain
United States federal income tax considerations relating to, and any listing
on a securities exchange of, the Offered Securities covered by the Prospectus
Supplement.
The Offered Securities may be sold for public offering to underwriters
or dealers, which may be a group of underwriters represented by one or more
managing underwriters, or through such firms or other firms acting alone or
through dealers. The Offered Securities may also be sold directly by the
Company or through agents to investors. The names of any agents, dealers or
managing underwriters, and of any underwriters, involved in the sale of the
Offered Securities in respect of which this Prospectus is being delivered,
the applicable agent's commission, dealer's purchase price or underwriter's
discount and the net proceeds to the Company from such sale will be set forth
in the Prospectus Supplement. See "Plan of Distribution."
------------------------------
This Prospectus may not be used to consummate the sale of the Securities
unless accompanied by a Prospectus Supplement.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------------
The date of this Prospectus is , 199 .
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional
Offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and 7 World Trade Center, New York, New York 10045.
Copies of such material can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Such reports, proxy statements and other information
concerning the Company may also be inspected at the offices of the New York
Stock Exchange, Inc. at 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission in Washington, D.C. a
Registration Statement on Form S-3 (herein, together with all amendments and
exhibits thereto, referred to as the "Registration Statement") under the
Securities Act with respect to the Securities to which this Prospectus
relates. As permitted by the Rules and Regulations of the Commission, this
Prospectus does not contain all the information set forth in the Registration
Statement, including the exhibits thereto, which may be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission under
Section 13 of the Exchange Act are hereby incorporated by reference in this
Prospectus: (i) the Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1993; and (ii) the Company's Quarterly Reports on Form 10-Q
for the fiscal quarters ended April 30, July 31 and October 31, 1993.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after 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 this Prospectus and to be a part hereof from the
date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which is deemed to be incorporated by reference herein modifies or supersedes
such earlier 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 or the Prospectus Supplement.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person,
a copy of any or all of the foregoing documents incorporated herein by
reference (other than exhibits to such documents). Written or telephone
requests should be directed to Lowe's Companies, Inc., P. O. Box 1111, North
Wilkesboro, North Carolina 28656, Attention: Richard D. Elledge, (919) 651-
4271.
THE COMPANY
Lowe's Companies, Inc. ("Lowe's" or the "Company") is a specialty
retailer of building materials and related products for the do-it-yourself
home improvement, home decor, and home construction, repair and remodeling
markets. As of October 31, 1993, Lowe's operated 303 retail stores with more
than 12.0 million square feet of sales floor located principally in the South
Atlantic and South Central regions of the United States. According to
National Home Center News, an industry publication, Lowe's is the second
largest home center retailer in the United States. Lowe's general offices
are located in North Wilkesboro, North Carolina.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement
accompanying this Prospectus, the net proceeds from the sale of the
Securities will be used for general corporate purposes, which may include
financing the acquisition of land, buildings and equipment for new and
existing stores, the repayment of certain long-term indebtedness and short-
term borrowings and the repurchase of outstanding shares of Common Stock of
the Company. Funds not required immediately for those purposes may be
invested temporarily in short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges is computed by dividing earnings
by fixed charges. For this purpose, "earnings" include pretax earnings plus
fixed charges. "Fixed charges" include interest expense, capitalized
interest and the portion of rental expense which is representative of the
interest factor in these rentals.
Nine Months
Ended July 31, Years Ended January 31,
-------------- ---------------------------------
1993 1992 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
Historical ratio earnings
to fixed charges . . . . 7.27 6.37 5.73 1.15* 4.69 5.20 4.91
_______________
* Pretax earnings for the year ended January 31, 1992 include the
effect of a one-time restructuring charge of $71.3 million.
Excluding the effect of this restructuring charge, the ratio of
earnings to fixed charges for the year ended January 31, 1992 would
have been 4.01.
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general terms and provisions of the Debt
Securities offered hereby. Further terms of the Offered Securities are set
forth in the Prospectus Supplement.
The Senior Debt Securities are to be issued under an Indenture, dated as
of ________, 199_ (the "Senior Indenture") between the Company and Chemical
Bank, as Trustee (the "Senior Trustee"). The Subordinated Debt Securities
are to be issued under an Indenture, dated as of ________ __, 199_ (the
"Indenture"), between the Company and Wachovia Bank of North Carolina, N.A.,
as Trustee (the "Subordinated Trustee"). The Senior Indenture and the
Subordinated Indenture are sometimes referred to individually as an
"Indenture" and collectively as the "Indentures." The Senior Trustee and the
Subordinated Trustee are sometimes referred to individually as a "Trustee"
and collectively as the "Trustees." The Senior Indenture and the form of the
Subordinated Indenture are filed as exhibits to the Registration Statement.
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indentures, including the
definitions therein of certain terms. Whenever particular Sections, Articles
or defined terms of the Indentures are referred to, it is intended that such
Sections, Articles or defined terms shall be incorporated herein by
reference.
General
The Debt Securities to be offered by this Prospectus are limited to
$500,000,000 in aggregate principal amount of unsecured debt obligations of
the Company. However, the Indentures do not limit the aggregate principal
amount of Debt Securities which may be issued thereunder and provide that
Debt Securities may be issued thereunder from time to time in one or more
series. (Section 301). No Debt Securities are currently issued and
outstanding under the Indentures, although the Company has outstanding $250
million aggregate principal amount of Medium-Term Notes, Series A (the
"Medium-Term Notes"), issued under an Indenture, dated April 15, 1992,
between the Company and Chemical Bank and $250 million aggregate principal
amount of 3% Subordinated Notes due July 22, 2003 (the "3% Subordinated
Notes"), issued under an Indenture, dated July 22, 1993, between the Company
and Wachovia Bank of North Carolina, N.A. Neither the Indentures nor the
Debt Securities will limit or otherwise restrict the amount of Senior
Indebtedness which may be incurred by the Company or any of its subsidiaries.
The Senior Debt Securities will be unsecured obligations of the Company
and will rank on a parity with the Medium-Term Notes and all other unsecured
and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities will be unsecured obligations of the Company, will rank on a
parity with the 3% Subordinated Notes and will be subordinated in right of
payment to all Senior Indebtedness (as defined under "Subordination of Debt
Securities"). As of __________ __, 199__, Senior Indebtedness of the Company
aggregated approximately $_____ million.
Reference is made to the applicable Prospectus Supplement for the
specific terms of the series of Debt Securities offered thereby including (1)
the title of the Debt Security; (2) the aggregate principal amount and
denominations; (3) the maturity or maturities; (4) the price to be received
by the Company from the sale of such Debt Securities; (5) the interest rate
or rates (or the method of calculation thereof) to be established for the
Debt Securities, which rate or rates may vary from time to time; (6) the date
or dates on which principal of the Debt Securities is payable; (7) the date
or dates from which interest on the Debt Securities shall accrue and the
payment and record date or dates for payments of interest or the methods by
which any such dates will be determined; (8) the place or places where
principal of, premium, if any, and interest, if any, on the Debt Securities
is payable; (9) the terms of any sinking fund and analogous provisions with
respect to the Debt Securities; (10) the respective redemption and repayment
rights, if any, of the Company and of the holders of the Debt Securities and
the related redemption and repayment prices and any limitations on such
redemption or repayment rights; (11) any provisions relating to the
conversion or exchange of the Debt Securities; (12) any addition to or change
in the affirmative or negative covenants, if any, to be imposed upon the
Company relating to any of the Debt Securities; (13) any trustee or fiscal or
authenticating or payment agent, issuing and paying agent, transfer agent or
registrar or any other person or entity to act in connection with such Debt
Securities for or on behalf of the holders thereof or the Company or an
affiliate; (14) whether such Debt Securities are to be issuable initially in
temporary global form and whether any such Debt Securities are to be issuable
in permanent global form and, if so, whether beneficial owners of interests
in any such permanent global security may exchange such interests for Debt
Securities of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur; (15) the listing of
the Debt Securities on any securities exchange or inclusion in any other
market or quotation or trading system; and (16) any other specific terms,
conditions and provisions of the Debt Securities.
The holders of Debt Securities of a specified series that are convertible
into Common Stock ("Convertible Debt Securities") will be entitled at certain
times specified in the Prospectus Supplement relating to such Convertible
Debt Securities, subject to prior redemption, repayment or repurchase, to
convert any Convertible Debt Securities of such series into Common Stock, at
the conversion price set forth in such Prospectus Supplement, subject to
adjustment and to such other terms as are set forth in such Prospectus
Supplement. (Senior Indenture, Article 14; Subordinated Indenture, Article
15).
Unless otherwise provided in the Prospectus Supplement, principal of and
any premium and interest on the Debt Securities shall be payable, and the
transfer of the Debt Securities will be registrable, at the office of the
applicable Trustee, except that, at the option of the Company, interest may
be paid by mailing a check to the address of the person entitled thereto as
it appears on the register for the Debt Securities. (Sections 305 and 1002).
Unless otherwise indicated in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form without coupons and
in denominations of $1,000 or any integral multiple thereof. No service
charge will be made for any registration of transfer or exchange of the 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).
Debt Securities may be issued as Original Issue Discount Securities (as
defined in the Indentures) to be sold at a substantial discount below their
principal amount. Special federal income tax and other considerations
applicable thereto will be described in the Prospectus Supplement relating
thereto.
Certain Covenants Applicable to Senior Debt Securities
Unless otherwise indicated in the applicable Prospectus Supplement with
respect to a series of Senior Debt Securities, Senior Debt Securities will
have the benefit of the following covenants contained in the Senior
Indenture. Unless otherwise indicated in the applicable Prospectus
Supplement with respect to Subordinated Debt Securities of a series, the
Subordinated Debt Securities will not have the benefit of such covenants.
Certain capitalized terms used in this section are defined below under
"Certain Definitions." Other capitalized terms not otherwise defined herein
have the meanings ascribed to them in the Senior Indenture.
Restrictions on Debt. The Senior Indenture provides that the Company
will not itself, and will not permit any Subsidiary to, incur, issue, assume
or guarantee any Debt secured by a Mortgage on any Principal Property of the
Company or any Subsidiary, or any shares of Capital Stock or Debt of any
Subsidiary, without effectively providing that the Securities of each series
of Senior Debt Securities then Outstanding (together with, if the Company
shall so determine, any other Debt of the Company or such Subsidiary then
existing or thereafter created which is not subordinate to the Securities of
each series then Outstanding) will be secured equally and ratably with (or,
at the option of the Company, prior to) such secured Debt, so long as such
secured Debt shall be so secured, and will not permit any Subsidiary to
incur, issue, assume or guarantee any unsecured Debt or to issue any
Preferred Stock, in each instance unless the aggregate amount of all such
secured Debt together with the aggregate preferential amount to which such
Preferred Stock would be entitled on any involuntary distribution of assets
and all Attributable Debt of the Company and its Subsidiaries in respect of
sale and leaseback transactions would not exceed 10% of Consolidated Net
Tangible Assets. For the purpose of providing such equal and ratable
security, the principal amount of Outstanding Debt Securities of any series
of Original Issue Discount Securities shall be such portion of the principal
amount as specified in the terms of that series that would be payable upon
acceleration of the Maturity thereof at the time of such determination. This
restriction does not apply to, and there shall be excluded in computing Debt
for the purpose of such restriction: (a) Debt secured by Mortgages on any
property acquired, constructed or improved by the Company or any Subsidiary
after the first date on which a Senior Debt Security is authenticated by the
Trustee under the Senior Indenture, which Mortgages are created or assumed
contemporaneously with, or within 30 months after, such acquisition, or
completion of such construction or improvement, or within six months
thereafter pursuant to a firm commitment for financing arranged with a lender
or investor within such 30-month period, to secure or provide for the payment
of all or any part of the purchase price of such property or the cost of such
construction or improvement incurred after the first date on which a Senior
Debt Security is authenticated by the Trustee under the Senior Indenture or
Mortgages on any property existing at the time of the acquisition thereof if
any such Mortgage does not apply to any property previously owned by the
Company or any Subsidiary other than, in the case of any such construction or
improvement, any previously unimproved real property on which the property so
constructed, or the improvement, is located; (b) Debt of any corporation
existing at the time such corporation is merged with or into the Company or
a Subsidiary; (c) Debt of any corporation existing at the time such
corporation becomes a Subsidiary; (d) Debt of a Subsidiary to the Company or
to another Subsidiary; (e) Debt secured by Mortgages securing obligations
issued by a state, territory or possession of the United States, or any
political subdivision of any of the foregoing, or the District of Columbia to
finance the acquisition of or construction on property, and on which the
interest is not, in the opinion of counsel, includable in gross income of the
holder; and (f) certain extensions, renewals or replacements of any Debt
referred to in the foregoing clauses (a) through (e) inclusive. This
restriction does not apply to any issuance of Preferred Stock by a Subsidiary
to the Company or another Subsidiary, provided that such Preferred Stock is
thereafter transferable to any Person other than the Company or a Subsidiary.
(Senior Indenture, Section 1008).
Restrictions on Sales and Leasebacks. The Senior Indenture provides that
the Company will not itself, and will not permit any Subsidiary to, after the
first date on which a Senior Debt Security is authenticated by the Trustee
under the Senior Indenture, enter into any sale and leaseback transaction
involving any Principal Property which has been or is to be sold or
transferred, unless, after giving effect thereto, the aggregate amount of all
Attributable Debt with respect to such transactions plus all Debt to which
Section 1008 of the Senior Indenture is applicable, would not exceed 10% of
Consolidated Net Tangible Assets. This restriction will not apply to, and
there shall be excluded in computing Attributable Debt for the purpose of
such restriction, Attributable Debt with respect to any sale and leaseback
transaction if: (a) the lease in such transaction is for a period (including
renewal rights) not exceeding three years; (b) the Company or a Subsidiary,
within 180 days after such transaction, applies an amount not less than the
greater of the net proceeds of the sale of the Principal Property leased
pursuant to such arrangement or the fair market value of the Principal
Property so leased at the time of entering into such arrangement (as
determined by the Board of Directors) to, subject to certain restrictions,
the retirement of Funded Debt of the Company ranking on a parity with or
senior to the Senior Debt Securities or the retirement of Funded Debt of a
Subsidiary; (c) such transaction is entered into prior to, at the time of, or
within 30 months after the later of the acquisition of the Principal Property
or the completion of the construction thereon; (d) the lease in such
transaction secures or relates to obligations issued by a state, territory or
possession or the United States, or any political subdivision thereof, or the
District of Columbia, to finance the acquisition of or construction on
property, and on which the interest is not, in the opinion of counsel,
includable in the gross income of the holder; or (e) such transaction is
entered into between the Company and a Subsidiary or between Subsidiaries.
(Senior Indenture, Section 1009).
Certain Definitions. The Senior Indenture defines the following terms
used in this section:
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining term thereof (excluding any
subsequent renewal or other extension options held by the lessee), discounted
from the respective due dates thereof to such date at the rate of 10% per
annum compounded annually. The net amount of rent required to be paid under
any such lease for any such period shall be the amount of the rent payable by
the lessee with respect to such period, after excluding amounts required to
be paid on account of maintenance and repairs, insurance, taxes, assessments,
water rates and similar charges and contingent rents (such as those based on
sales). In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless
of whether such capital stock shall be limited to a fixed sum or percentage
with respect to the rights of the holders thereof to participate in dividends
and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such corporation.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities, and (ii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other
like intangibles, all as set forth on the most recent balance sheet of the
Company and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
"Debt" means loans, notes, bonds, indentures or other similar evidences
of indebtedness for money borrowed.
"Funded Debt" means all indebtedness for money borrowed having a maturity
of more than 12 months from the date as of which the amount thereof is to be
determined or having a maturity of less than 12 months but by its terms being
renewable or extendible beyond 12 months from such date at the option of the
borrower.
"Preferred Stock" means any stock of any class of the Company which has
a preference over Common Stock in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not mandatorily redeemable or
repayable, or redeemable or repayable at the option of the Holder, otherwise
than in shares of Common Stock or Preferred Stock of another class or series
or with the proceeds of the sale of Common Stock or Preferred Stock.
"Principal Property" means any building, structure or other facility,
together with the land upon which it is erected and fixtures comprising a
part thereof, used primarily for selling home improvement products or the
manufacturing, warehousing or distributing of such products, owned or leased
by the Company or any Subsidiary of the Company. (Senior Indenture, Section
101).
Subordination of Subordinated Debt Securities
The obligations of the Company to make any payment on account of the
principal of and premium, if any, and interest on the Subordinated Debt
Securities will be subordinate and junior in right of payment, to the extent
set forth in the Subordinated Indenture, to all Senior Indebtedness (as
defined in the Subordinated Indenture) of the Company. (Subordinated
Indenture, Article 14).
In the event that the Company shall default in the payment of any
principal of or any premium or interest on any Senior Indebtedness when the
same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, unless and
until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, securities by
set-off or otherwise) will be made or agreed to be made for principal of or
any premium or interest on the Subordinated Debt Securities, or in respect of
any redemption, retirement, purchase or other acquisition of any of the
Subordinated Debt Securities. (Subordinated Indenture, Section 1401). Senior
Indebtedness is defined in the Subordinated Indenture as (a) all indebtedness
of the Company for money borrowed or constituting reimbursement obligations
with respect to letters of credit and interest or currency swap agreements
(including indebtedness secured by a mortgage, conditional sales contract or
other lien which is (i) given to secure all or a part of the purchase price
of property subject thereto, whether given to the vendor of such property or
to another, or (ii) existing on property at the time of acquisition thereof);
(b) all indebtedness of the Company evidenced by notes, debentures, bonds or
other securities sold by the Company for money; (c) lease obligations
(including but not limited to capitalized lease obligations); (d) all
indebtedness of others of the kinds described in either of the preceding
clauses (a) or (b) and all lease obligations and obligations of others of the
kind described in the preceding clause (c) assumed by or guaranteed in any
manner by the Company or in effect guaranteed by the Company through an
agreement to purchase, contingent or otherwise; and (e) all (whether initial
or seriatim) renewals, deferrals, increases, extensions or refundings of and
modifications to indebtedness of the kinds described in any of the preceding
clauses (a), (b) or (d) and all renewals or extensions of leases of the kinds
described in either of the preceding clauses (c) or (d); unless, in the case
of any particular indebtedness, lease, renewal, extension or refunding, the
instrument or lease creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, lease,
renewal, extension, deferral, increase, modification or refunding is not
superior in right of payment to the Subordinated Debt Securities or is
expressly subordinated by its terms in right of payment to all other
indebtedness of the Company (including the Subordinated Debt Securities).
In the event of (1) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property; (2) any
proceeding for the liquidation, dissolution or other winding up of the
Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings; (3) any assignment by the Company for the benefit of
creditors; or (4) any other marshalling of the assets of the Company, all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, is
made to any holder of any of the Subordinated Debt Securities on account
thereof. In such event, any payment or distribution on account of the
principal of or any premium or interest on the Subordinated Debt Securities,
whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Subordinated
Debt Securities, to the payment of all Senior Indebtedness at the time
outstanding, and to any securities issued in respect thereof under any such
plan of reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Debt Securities, shall be paid or delivered directly to the
holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) has
been paid in full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the Holder or Holders
of Subordinated Debt Securities, together with the holders of any obligations
of the Company ranking on a parity with the Subordinated Debt Securities,
shall be entitled to be paid from the remaining assets of the Company the
amounts at the time due and owing on account of unpaid principal of (and
premium, if any) and interest on the Subordinated Debt Securities and such
other obligations before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any capital stock or
obligations of the Company ranking junior to the Subordinated Debt Securities
and such other obligations. If any payment or distribution on account of the
principal of or any premium or interest on the Subordinated Debt Securities
of any character, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in the subordination provisions with respect to the
Subordinated Debt Securities, to the payment of all Senior Indebtedness at
the time outstanding and to any securities issued in respect thereof under
any such plan of reorganization or readjustment), or any security shall be
received by the Trustee or any Holder of any Subordinated Debt Securities in
contravention of any of the terms of the Indenture and before all the Senior
Indebtedness shall have been paid in full, such payment or distribution or
security will be received in trust for the benefit of, and will be paid over
or delivered and transferred to, the holders of the Senior Indebtedness at
the time outstanding in accordance with the priorities then existing among
such holders for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all such Senior Indebtedness
in full. (Subordinated Indenture, Section 1401).
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, and any
Holder or Holders of the Subordinated Debt Securities having a claim pursuant
to such Subordinated Debt Securities may receive less, ratably, than the
other creditors of the Company. Such subordination will not prevent the
occurrence of an Event of Default in respect of the Subordinated Debt
Securities.
Effect of Corporate Structure
The Debt Securities are obligations exclusively of the Company. Because
the operations of the Company are currently conducted through subsidiaries,
the cash flow and the consequent ability to service debt of the Company,
including the Debt Securities, are dependent, in part, upon the earnings of
its subsidiaries and the distribution of those earnings to the Company or
upon loans or other payments of funds by those subsidiaries to the Company.
The subsidiaries are separate and distinct legal entities and have no
obligation, contingent or otherwise, to pay any amounts due pursuant to the
Debt Securities or to make any funds available therefor, whether by
dividends, loans or other payments. In addition, the payment of dividends
and the making of loans and advances to the Company by its subsidiaries may
be subject to statutory or contractual restrictions, are contingent upon the
earnings of those subsidiaries and are subject to various business
considerations.
Although the Senior Indenture limits the incurrence of such indebtedness,
as described above under "Certain Covenants Applicable to Senior Debt
Securities," the Debt Securities will be effectively subordinated to all
indebtedness and other liabilities, including current liabilities and
commitments under leases, if any, of the Company's subsidiaries. Any right
of the Company to receive assets of any of its subsidiaries upon liquidation
or reorganization of the subsidiary (and the consequent right of the holders
of the Debt Securities to participate in those assets) will be effectively
subordinated to the claims of that subsidiary's creditors (including trade
creditors), except to the extent that the Company is itself recognized as a
creditor of such subsidiary, in which case the claims of the Company would
still be subordinated to any security interests in the assets of such
subsidiary and any indebtedness of such subsidiary senior to that held by the
Company.
No Restriction on Sale or Issuance of Stock of Subsidiaries
The Indentures contain no covenant that the Company will not sell,
transfer or otherwise dispose of any shares of, or securities convertible
into, or options, warrants, or rights to subscribe for or purchase shares of,
voting stock of any of its subsidiaries, nor does it prohibit any subsidiary
from issuing any shares of, securities convertible into, or options, warrants
or rights to subscribe for or purchase shares of, voting stock of such
subsidiary.
Consolidation, Merger and Sale of Assets
The Company, without the consent of the Holder or Holders of any of the
outstanding Debt Securities, may consolidate or merge with or into, or
convey, transfer or lease its properties and assets substantially as an
entirety, to any corporation organized under the laws of any domestic
jurisdiction, provided that the successor corporation assumes the Company's
obligations on the Debt Securities and under the Indentures and that after
giving effect to the transaction no Event of Default, and no event which,
after notice or lapse of time would become an Event of Default, has occurred
and is continuing, and that certain other conditions are met. (Section 801).
Events of Default
Events of Default with respect to Debt Securities of any series issued
thereunder are defined in the Indentures as being: default for thirty days
in payment when due of any interest on any Debt Security of that series or
any additional amount payable with respect to Debt Securities of such series
as specified in the applicable Prospectus Supplement; default in payment when
due of principal, premium, if any, or on redemption or otherwise, or in the
making of a mandatory sinking fund payment of any Debt Securities of that
series; default for sixty days after notice to the Company by the Trustee for
such series, or by the holders of 25% in aggregate principal amount of the
Debt Securities of such series then outstanding, in the performance of any
other agreement in the Debt Securities of that series, in the Indentures or
in any supplemental indenture or board resolution referred to therein under
which the Debt Securities of that series may have been issued; default
resulting in acceleration of other indebtedness of the Company for borrowed
money where the aggregate principal amount so accelerated exceeds $10 million
and such acceleration is not rescinded or annulled within ten days after the
written notice thereof to the Company by the trustee or to the Company and
the Trustee by the holders of 25% in aggregate principal amount of the Debt
Securities of such series then outstanding, provided that such Event of
Default will be cured or waived if the default that resulted in the
acceleration of such other indebtedness is cured or waived; and certain
events of bankruptcy, insolvency or reorganization of the Company. (Section
501). Events of Default with respect to a specified series of Debt
Securities may be added to the Indentures under which the series is issued
and, if so added, will be described in the applicable Prospectus Supplement.
(Section 301). No Event of Default with respect to a particular series of
Debt Securities issued under the Indentures necessarily constitutes an Event
of Default with respect to any other series of Debt Securities issued
thereunder.
The Indentures provide that the Trustee for any Series of Debt Securities
shall, within ninety days after the occurrence of a Default with respect to
Debt Securities of that series, give to the holder of the Debt Securities of
that series notice of all uncured Defaults known to it, provided, that,
except in the case of default in payment on the Debt Securities of that
series, the Trustee may withhold the notice if and so long as it in good
faith determines that withholding such notice is in the interest of the
holders of the Debt Securities of that series, provided, further, that no
notice of a default made in the performance of any covenant or a breach of
any warranty contained in the Indentures shall be given until at least 60
days after the occurrence thereof. "Default" means any event which is, or,
after notice or passage of time or both, would be, an Event of Default.
(Section 602).
If an Event of Default with respect to Debt Securities of any series at
the time outstanding occurs and is continuing, either the Trustee or the
Holder or Holders of at least 25% in aggregate principal amount of the
outstanding Debt Securities of that series may declare the principal amount
(or, if the Debt Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Debt Securities of that series to be due and
payable immediately. At any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment
or decree based on acceleration has been obtained, the Holder or Holders of
a majority in aggregate principal amount of outstanding Debt Securities of
that series may, under certain circumstances, rescind and annul such
acceleration. (Section 502).
The Indentures provide that, subject to the duty of the Trustees in the
case of an Event of Default to act with the required standard of care, the
Trustees will be under no obligation to exercise any of these rights or
powers under the Indentures at the request or direction of any of the
Holders, unless such Holder or Holders shall have offered to the Trustees
reasonable indemnity. (Sections 601 and 603). Subject to such provisions for
the indemnification of the Trustees, the Holder or Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of each series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustees, or exercising any trust
or power conferred on the Trustees with respect to the Debt Securities of
that series. (Section 512).
The Company is required to furnish to the Trustees annually a statement
as to the performance by the Company of certain of its obligations under the
Indentures and as to any default in such performance. (Section 1005).
Global Securities
The Debt Securities of a series may be issued in the form of one or more
fully registered securities in global form (each a "Global Security") that
will be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series and will be
registered in the name of the Depositary or its nominee. In such case, one or
more Global Securities will be issued in a denomination or aggregate
denominations equal to the aggregate principal amount of outstanding Debt
Securities of the series represented by such Global Security or Securities.
Unless and until any such Global Security is exchanged in whole or in part
for Debt Securities in definitive certificated form, such Global Security may
not be transferred except as a whole by the Depositary for 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 and except as described in the applicable Prospectus
Supplement. (Section 303).
The specific terms of the depositary arrangement with respect to a series
of Debt Securities to be represented by a Global Security will be described
in the Prospectus Supplement relating to such series. The Company anticipates
that the following provisions will apply to all depositary arrangements.
Upon the issuance of any Global Security, and the deposit of such Global
Security with or on behalf of the Depositary for such Global Security, the
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Debt Securities represented by such
Global Security to the accounts of institutions ("participants") that have
accounts with such Depositary or its nominee. The accounts to be credited
will be designated by the underwriters or agents engaging in the distribution
or placement of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of
beneficial interests in such Global Security will be limited to participants
or persons that may hold interests through participants. Ownership of
beneficial interests by participants in such Global Security will be shown by
book-keeping entries on, and the transfer of that ownership interest will be
effected only through book-keeping entries to, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by persons that hold through participants
will be shown by book-keeping entries on, and the transfer of that ownership
interest among or through such participants will be effected only through
book-keeping entries to, records maintained by such participants. The laws of
some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive certificated form rather
than book-entry form. Such laws may impair the ability to own, transfer or
pledge beneficial interests in any Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, 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 set forth below or otherwise specified in the applicable
Prospectus Supplement, owners of beneficial interests in a Global Security
will not be entitled to have Debt Securities of the series represented by
such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities of such series in
definitive certificated form and will not be considered the holders thereof
for any purposes under the Indenture. Accordingly, each person owning a
beneficial interest in such Global Security must rely on the procedures of
the Depositary and, if such person is not a participant, on the procedures of
the participant through which such person directly or indirectly owns its
interest, to exercise any rights of a holder under the Indenture. The
Indenture provides that the Depositary may grant proxies and otherwise
authorize participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a holder is entitled
to give or take under the Indenture. (Section 104). The Company understands
that under existing industry practices, if the Company requests any action of
holders or any owner of a beneficial interest in such Global Security desires
to give any notice or take any action that a holder is entitled to give or
take under the Indenture, the Depositary for such Global Security would
authorize the participants holding the relevant beneficial interest to give
such notice or take such action, and such participants would authorize
beneficial owners owning through such participants to give such notice or
take such action or would otherwise act upon the instructions of beneficial
owners owning through them.
Principal and any premium and interest payments on Debt Securities
represented by a Global Security registered in the name of a Depositary or
its nominee will be made to such Depositary or its nominee, as the case may
be, as the registered owner of such Global Security. None of the Company, the
Trustee or any paying agent for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in any Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. (Section 308).
The Company expects that the Depositary for any series of Debt Securities
represented by a Global Security, upon receipt of any payment of principal,
premium or interest, will credit immediately 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 such
Depositary. The Company also expects that payments by participants to owners
of beneficial interests in such Global Security or Securities 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 registered in "street name," and will be the responsibility of such
participants.
If the Depositary for any series of Debt Securities represented by a
Global Security is at any time unwilling or unable to continue as Depositary
and a successor Depositary is not appointed by the Company within 90 days,
the Company will issue such Debt Securities in definitive certificated form
in exchange for such Global Security. In addition, the Company may at any
time and in its sole discretion determine not to have the Debt Securities of
a series represented by one or more Global Securities and, in such event,
will issue Debt Securities of such series in definitive certificated form in
exchange for the Global Security representing such series of Debt Securities.
(Section 305).
Further, an owner of a beneficial interest in a Global Security
representing Debt Securities of a series may, on terms acceptable to the
Company and the Depositary for such Global Security, receive Debt Securities
of such series in definitive certificated form, if the Company so specifies
with respect to the Debt Securities of such series. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to have
Debt Securities of the series represented by such Global Security equal in
principal amount to such beneficial interest registered in its name and will
be entitled to physical delivery of such Debt Securities in definitive
certificated form. Debt Securities of such series so issued in definitive
certificated form will, except as set forth in the applicable Prospectus
Supplement, be issued in denominations of $1,000 and integral multiples
thereof and will be issued in registered form. (Section 305).
Modification and Waiver
Modifications and amendments of the Indentures may be made by the Company
and the applicable Trustee with the consent of the Holder or Holders of a
majority in principal amount of the Debt Securities of all affected series;
provided, however, that no such modification or amendment may, without the
consent of the Holder or Holders of all of the outstanding Debt Securities
affected thereby, (i) change the stated maturity date of the principal of, or
any installment of principal of, or premium, if any, or interest, if any, on,
any Debt Security; (ii) reduce the principal amount of, or premium, if any,
or interest, if any, on, any Debt Security, change the method of calculation
thereon or reduce the amount payable on redemption thereof; (iii) reduce the
amount of principal of a Debt Security payable upon acceleration of the
maturity thereof; (iv) change the place or currency of payment of principal
of, or premium, if any, or interest, if any, on, any Debt Security; (v)
impair the rights of any holder of any Debt Securities to conversion rights;
(vi) impair the right to institute suit for the enforcement of any payment on
or with respect to any Debt Security; or (vii) reduce the percentage in
principal amount of the Debt Security, the consent of whose Holder or Holders
is required for modification or amendment of the Indentures or for waiver of
compliance with certain provisions of the Indentures or for waiver of certain
defaults. (Sections 901 and 902).
The Holder or Holders of a majority in principal amount of the Debt
Securities of all affected series may, on behalf of the Holder or Holders of
such Debt Securities, waive compliance by the Company with certain
restrictive provisions of the Indentures. The Holder or Holders of a
majority in principal amount of the Debt Securities of all affected series
also may, on behalf of the Holder or Holders of all such Debt Securities,
waive any past default under the Indentures with respect to such Debt
Securities, except a default in the payment of the principal, or premium, if
any, or interest on, any Debt Security or in respect of a provision which
under the Indentures cannot be modified or amended without the consent of the
Holder or Holders of all of the outstanding Debt Securities affected thereby.
(Section 513).
Regarding the Trustees
Chemical Bank is the Trustee under the Senior Indenture. Notice to the
Senior Trustee Bank should be directed to its Corporate Trust Office, 450
West 33rd Street, New York, New York 10001-2697.
Wachovia Bank of North Carolina, N.A. is the Trustee under the
Subordinated Indenture. Notice to the Subordinated Trustee should be
directed to its Corporate Trust Office, P.O. Box 3001, Winston-Salem, North
Carolina 27102.
DESCRIPTION OF PREFERRED STOCK
General
The following summary does not purport to be complete and is subject in
all respects to applicable North Carolina law and the Company's Restated and
Amended Charter and Bylaws.
The Company is authorized by its Restated and Amended Charter to issue
5,000,000 shares of Preferred Stock. The Board of Directors is authorized to
designate with respect to each new series of Preferred Stock the number of
shares in each series, the dividend rates and dates of payment, voluntary and
involuntary liquidation preferences, redemption prices, whether or not
dividends shall be cumulative and, if cumulative, the date or dates from
which the same shall be cumulative, the sinking fund provisions, if any, for
redemption or purchase of shares, the rights, if any, and the terms and
conditions on which shares can be converted into or exchanged for, or the
rights to purchase, shares of any other class or series, and the voting
rights, if any. Any Preferred Stock issued will rank prior to the Common
Stock as to dividends and as to distributions in the event of liquidation,
dissolution or winding up of the Company. The ability of the Board of
Directors to issue Preferred Stock, while providing flexibility in connection
with possible acquisitions and other corporate purposes, could, among other
things, adversely affect the voting powers of holders of Common Stock and,
under certain circumstances, may discourage an attempt by others to gain
control of the Company. The Company may amend from time to time its Restated
and Amended Charter to increase the number of authorized shares of Preferred
Stock. Any such amendment would require the approval of the holders of a
majority of the outstanding shares of Common Stock, and the approval of the
holders of a majority of the outstanding shares of all series of Preferred
Stock voting together as a single class without regard to series. As of the
date of this Prospectus, the Company had no shares of Preferred Stock
outstanding.
The Prospectus Supplement relating to each series of the Preferred Stock
will describe the following terms thereof:
(a) title and stated value of such series;
(b) the number of shares in such series;
(c) the dividend payment dates and the dividend rate or method of
determination or calculation of such terms applicable to the
series;
(d) applicable redemption provisions, if any;
(e) sinking fund or purchase fund provisions, if any;
(f) the fixed liquidation price and fixed liquidation premium, if any,
applicable to the series;
(g) the rate or basis of exchange or conversion into other securities
or method of determination thereof applicable to the series, if
any;
(h) the conversion rights, if any;
(i) applicable voting rights; and
(j) any other terms applicable thereto.
Redemption
A series of Preferred Stock may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the times and at the
redemption prices set forth in the Prospectus Supplement relating to such
series.
The Prospectus Supplement relating to a series of Preferred Stock that
is subject to mandatory redemption shall specify the number of shares of such
series of Preferred Stock which shall be redeemed by the Company in each year
commencing after a date to be specified, at a redemption price per share to
be specified, together with an amount equal to any accrued and unpaid
dividends thereon to the date of redemption.
If fewer than all the outstanding shares of any series of Preferred Stock
are to be redeemed, whether by mandatory or optional redemption, the
selection of the shares to be redeemed shall be determined by lot or pro rata
as may be determined by the Board of Directors or a duly authorized committee
thereof, or by any other method which may be determined by the Board of
Directors or such committee to be equitable. From and after the date of
redemption (unless default shall be made by the Company in providing for the
payment of the redemption price), dividends shall cease to accrue on the
shares of Preferred Stock called for redemption and all rights of the holders
thereof (except the right to receive the redemption price) shall cease.
Conversion Rights; Preemptive Rights
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, on which shares of that series are convertible into shares
of Common Stock or another series of preferred stock of the Company. The
Preferred Stock will have no preemptive rights.
Dividend Rights
The holders of the Preferred Stock of each series shall be entitled to
receive, if and when declared payable by the Board of Directors, out of
assets available therefor, dividends at, but not exceeding, the dividend rate
for such series (which may be fixed or variable), payable at such intervals
and on such dates as are provided in the resolution of the Board of Directors
creating such series. If such intervals and dividend payment dates shall vary
from time to time for such series, such resolution shall set forth the method
by which such intervals and such dates shall be determined. Such dividends on
Preferred Stock shall be paid before any dividends, other than a dividend
payable in Common Stock of the Company, may be paid upon or set apart for any
shares of capital stock ranking junior to the Preferred Stock in respect of
dividends or liquidation rights (referred to in this Prospectus as "stock
ranking junior to the Preferred Stock").
Voting Rights
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by the
laws of the State of North Carolina or other applicable law, the holders of
the Preferred Stock will not be entitled to vote. Except as indicated in the
Prospectus Supplement relating to a particular series of Preferred Stock,
each such share will be entitled to one vote on matters on which holders of
such series of the Preferred Stock are entitled to vote. However, as more
fully described below under "Depositary Shares," if the Company elects to
issue Depositary Shares representing a fraction of a share of a series of
Preferred Stock, each such Depositary Share will, in effect, be entitled to
such fraction of a vote, rather than a full vote. Since each full share of
any series of Preferred Stock shall be entitled to one vote, the voting power
of such series, on matters on which holders of such series and holders of
other series of preferred stock are entitled to vote as a single class, shall
depend on the number of shares in such series, not the aggregate liquidation
preference or initial offering price of the shares of such series of
Preferred Stock.
In addition to the foregoing voting rights, under the North Carolina
Business Corporation Act as now in effect, the holders of Preferred Stock
will have the voting rights set forth above under "General" with respect to
amendments to the Company's Restated and Amended Charter which would increase
the number of authorized shares of Preferred Stock of the Company.
Liquidation Rights
In the event of any liquidation, dissolution or winding up of the
Company, the holders of Preferred Stock shall be entitled to receive, for
each share thereof, the fixed liquidation or stated value for the respective
series together in all cases with all dividends accrued or in arrears
thereon, before any distribution of the assets shall be made to the holders
of any stock ranking junior to the Preferred Stock. If the assets
distributable among the holders of Preferred Stock should be insufficient to
permit the payment of the full preferential amounts fixed for all series,
then the distribution shall be made among the holders of each series ratably
in proportion to the full preferential amounts to which they are respectively
entitled.
Depositary Shares
General. The Company may, at its option, elect to offer fractional
shares of Preferred Stock, rather than full shares of Preferred Stock. In
the event such option is exercised, the Company will issue to the public
receipts for Depositary Shares, each of which will represent a fraction (to
be set forth in the Prospectus Supplement relating to a particular series of
Preferred Stock) of a share of a particular series of Preferred Stock as
described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a bank or trust company selected by the Company
having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000 (the "Depositary Bank"). Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share will
be entitled, in proportion to the applicable fraction of a share of Preferred
Stock represented by such Depositary Share, to all the rights and preferences
of the Preferred Stock represented thereby (including dividend, voting,
redemption and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional
shares of Preferred Stock in accordance with the terms of the offering. If
Depositary Shares are issued, copies of the forms of Deposit Agreement and
Depositary Receipt will be incorporated by reference to the Registration
Statement of which this Prospectus is a part, and the following summary is
qualified in its entirety by reference to such documents.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary Bank may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts
but not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Company's expense.
Dividends and Other Distributions. The Depositary Bank will distribute
all cash dividends or other cash distributions received in respect of the
Preferred Stock to the record holders of Depositary Shares relating to such
Preferred Stock in proportion to the number of such Depositary Shares owned
by such holders.
In the event of a distribution other than in cash, the Depositary Bank
will distribute property received by it to the record holders of Depositary
Shares entitled thereto, unless the Depositary Bank determines that it is not
feasible to make such distribution, in which case the Depositary Bank may,
with the approval of the Company, sell such property and distribute the net
proceeds from such sale to such holders.
Redemption of Depositary Shares. If a series of Preferred Stock
represented by Depositary Shares is subject to redemption, the Depositary
Shares will be redeemed from the proceeds received by the Depositary Bank
resulting from the redemption, in whole or in part, of such series of
Preferred Stock held by the Depositary Bank. The redemption price per
Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of Preferred Stock.
Whenever the Company redeems shares of Preferred Stock held by the Depositary
Bank, the Depositary Bank will redeem as of the same redemption date the
number of Depositary Shares representing the shares of Preferred Stock so
redeemed. If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata as may
be determined by the Depositary Bank.
Voting the Preferred Stock. Upon receipt of notice of any meeting at
which the holders of Preferred Stock are entitled to vote, the Depositary
Bank will mail the information contained in such notice of meeting to the
record holders of the Depositary Shares relating to such Preferred Stock.
Each record holder of such Depositary Shares on the record date (which will
be the same date as the record date for the Preferred Stock) will be entitled
to instruct the Depositary Bank as to the exercise of the voting rights
pertaining to the amount of Preferred Stock represented by such holder's
Depositary Shares. The Depositary Bank will endeavor, insofar as
practicable, to vote the amount of Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all action which may be deemed necessary by the Depositary Bank
in order to enable the Depositary Bank to do so. The Depositary Bank may
abstain from voting shares of Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares
representing such Preferred Stock.
Amendment and Termination of the Depositary Agreement. The form of
Depositary Receipt evidencing the Depositary Shares and any provision of the
Deposit Agreement may at any time be amended by agreement between the Company
and the Depositary Bank. However, any amendment that materially and
adversely alters the rights of the holders of Depositary Shares will not be
effective unless such amendment has been approved by the holders of at least
a majority of the Depositary Shares then outstanding. The Deposit Agreement
may be terminated by the Company or the Depositary only if (i) all
outstanding Depositary Shares have been redeemed or (ii) there has been a
final distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
has been distributed to the holders of Depositary Receipts.
Charges of Depositary Bank. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company will pay charges of the Depositary Bank
in connection with the initial deposit of the Preferred Stock and any
redemption of the Preferred Stock. Holders of Depositary Receipts will pay
other transfer and other taxes and governmental charges and such other
charges, including a fee for the withdrawal of shares of Preferred Stock upon
surrender of Depositary Receipts, as are expressly provided in the Deposit
Agreement to be for their accounts.
Miscellaneous. The Depositary Bank will forward to holders of Depository
Receipts all reports and communications from the Company that are delivered
to the Depositary Bank and that the Company is required to furnish to the
holders of Preferred Stock.
Neither the Depositary Bank nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of
the Company and the Depositary Bank under the Deposit Agreement will be
limited to performance in good faith of their duties thereunder and they will
not be obligated to prosecute or defend any legal proceeding in respect of
any Depositary Shares or Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or
upon information provided by persons presenting Preferred Stock for deposit,
holders of Depositary Receipts or other persons believed to be competent and
on documents believed to be genuine.
Resignation and Removal of Depositary Bank. The Depositary Bank may
resign at any time by delivering to the Company notice of its election to do
so, and the Company may at any time remove the Depositary Bank, any such
resignation or removal to take effect upon the appointment of a successor
Depositary Bank and its acceptance of such appointment. Such successor
Depositary Bank must be appointed within 60 days after delivery of the notice
of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
Miscellaneous
The Preferred Stock when issued and full consideration is received for
such Preferred Stock will be fully paid and nonassessable.
DESCRIPTION OF COMMON STOCK
General
The following summary does not purport to be complete and is subject in
all respects to applicable North Carolina law, the Company's Restated and
Amended Charter and Bylaws, and the Rights Agreement, dated September 9,
1988, between the Company and Wachovia Bank of North Carolina, N.A., as
Rights Agent.
The Company is authorized by its Restated and Amended Charter to issue
120,000,000 shares of Common Stock and had 73,908,985 shares of Common Stock
outstanding at October 31, 1993. Each share of Common Stock is entitled to
one vote on all matters submitted to a vote of shareholders. Holders of
Common Stock are entitled to receive dividends when and as declared by the
Board of Directors of the Company out of funds legally available therefor.
Dividends may be paid on the Common Stock only if all dividends on any
outstanding Preferred Stock have been paid or provided for.
The issued and outstanding shares of Common Stock are fully paid and
nonassessable. Holders of Common Stock have no preemptive or conversion
rights and are not subject to further calls or assessments by the Company.
In the event of the voluntary or involuntary dissolution, liquidation or
winding up of the Company, holders of Common Stock are entitled to receive,
pro rata, after satisfaction in full of the prior rights of creditors and
holders of Preferred Stock, if any, all the remaining assets of the Company
available for distribution.
Directors are elected by a vote of the holders of Common Stock. Holders
of Common Stock are not entitled to cumulative voting rights.
Wachovia Bank of North Carolina, N.A., Winston-Salem, North Carolina acts
as the transfer agent and registrar for the Common Stock.
Rights
In 1988, pursuant to the Company's Shareholder Rights Plan, the Company
distributed as a dividend one Right for each outstanding share of Common
Stock. As a consequence of a two-for-one Common Stock split, effective as of
June 26, 1992, the number of Rights outstanding was adjusted such that each
share of Common Stock had associated with it one-half Right. Each Right
entitles the holder to buy one one-thousandth of a share of Participating
Cumulative Preferred Stock, Series A, at an exercise price of $100, subject
to adjustment. The Rights will become exercisable only if a person or group
acquires or announces a tender offer for 20% or more of the outstanding
Common Stock. When exercisable, the Company may issue a share of Common Stock
in exchange for each Right other than those held by such person or group. If
a person or group acquires 30% or more of the outstanding Common Stock, each
Right will entitle the holder, other than the acquiring person, upon payment
of the exercise price, to acquire Preferred Stock or, at the option of the
Company, Common Stock, having a value equal to twice the Right's exercise
price. If the Company is acquired in a merger or other business combination
or if 50% of its earnings power is sold, each Right will entitle the holder,
other than the acquiring person, to purchase securities of the surviving
company having a market value equal to twice the exercise price of the Right.
The Rights will expire on September 9, 1998, and may be redeemed by the
Company at a price of $.01 per right at any time prior to the tenth day after
an announcement that a 20% position has been acquired.
Until such time as a person or group acquires or announces a tender offer
for 20% or more of the Common Stock, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such
Common Stock certificates, and (ii) the surrender for transfer of any
certificate for Common Stock will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. Rights may
not be transferred, directly or indirectly (i) to any person or group that
has acquired, or obtained the right to acquire, beneficial ownership of 20%
or more of the Rights (an "Acquiring Person"); (ii) to any person in
connection with a transaction in which such person becomes an Acquiring
Person; or (iii) to any affiliate or associate of any such person. Any Right
that is the subject of a purported transfer to any such person will be null
and void.
The Rights may have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that acquires more than 20% of the
outstanding shares of Common Stock of the Company if certain events
thereafter occur without the Rights having been redeemed. However, the Rights
should not interfere with any merger or other business combination approved
by the Board of Directors and the shareholders because the Rights are
redeemable under certain circumstances.
Change of Control Provisions
The rights of holders of Common Stock are governed by other provisions
which are intended to affect any attempted change of control of the Company.
Board of Directors. The Restated and Amended Charter classifies the
Board of Directors into three separate classes, with the term of one-third of
the directors expiring at each annual meeting. A director may be removed
only upon the affirmative vote of 70% of outstanding voting shares.
Fair Price Provisions. Provisions of the Restated and Amended Charter
(the "Fair Price Provisions") limit the ability of an Interested Shareholder
to effect certain transactions involving the Company. Unless the Fair Price
Provisions are satisfied, an Interested Shareholder (defined as the
beneficial owner of 20% of outstanding voting shares) may not engage in a
business combination, which includes a merger, consolidation, share exchange,
or similar transaction, involving the Company unless approved by 70% of the
Company's outstanding voting shares. In general, the Fair Price Provisions
require that an Interested Shareholder pay shareholders the same amount of
cash or the same amount and type of consideration paid by the Interested
Shareholder when it initially acquired the Company's shares.
The Fair Price Provisions are designed to discourage attempts to take
over Lowe's in non-negotiated transactions utilizing two-tier pricing
tactics, which typically involve the accumulation of a substantial block of
the target corporation's stock followed by a merger or other reorganization
of the acquired company on terms determined by the purchaser. Due to the
difficulties of complying with the requirements of the Fair Price Provisions,
the Fair Price Provisions generally may discourage attempts to obtain control
of the Company.
North Carolina Law. The North Carolina Control Share Acquisition Act is
triggered upon the acquisition of shares of voting stock which, when added to
all other shares beneficially owned by the person, would result in that
person holding one-fifth, one-third or a majority of the voting power in the
election of directors. Under the Control Share Acquisition Act, the shares
acquired which result in the crossing of any of these thresholds ("control
shares") have no voting rights until conferred by the affirmative vote of the
holders of a majority of all outstanding voting shares. The effect of these
provisions may be to delay or prevent attempts by other corporations or
groups to acquire control of the Company without negotiation with the Board
of Directors.
The North Carolina Shareholder Protection Act requires the affirmative
vote of 95% of a corporation's voting shares to approve a business
combination with any person that beneficially owns 25% of the voting shares
of the corporation unless the "fair price" provisions of the Act are
satisfied. The statute's intended effect is similar to the Fair Price
Provisions of the Company's Restated and Amended Charter.
PLAN OF DISTRIBUTION
The Offered Securities may be sold for public offering to underwriters
or dealers, which may be a group of underwriters represented by one or more
managing underwriters, or through such firms or other firms acting alone or
through dealers. The Offered Securities may also be sold directly by the
Company or through agents to investors. The names of any agents, dealers or
managing underwriters, and of any underwriters, involved in the sale of the
Offered Securities in respect of which this Prospectus is being delivered,
the applicable agent's commission, dealer's purchase price or underwriter's
discount and the net proceeds to the Company from such sale will also be set
forth in the Prospectus Supplement.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities and any
discounts, concessions or commissions allowed by underwriters to
participating dealers will be set forth in the Prospectus Supplement.
Underwriters, dealers and agents participating in the distribution of the
Offered Securities may be deemed to be "underwriters" within the meaning of
the Securities Act, and any discounts and commissions received by them and
any profit realized by them on resale of the Offered Securities may be deemed
to be underwriting discounts and commissions under the Securities Act.
If an underwriter or underwriters are utilized in the sale of the Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is
reached. The underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of Offered Securities will be obligated
to purchase all such Offered Securities if any are purchased. In connection
with the sale of Offered Securities, underwriters may be deemed to have
received compensation from the Company in the form of underwriting discounts
or commissions and may also receive commissions from purchasers of Offered
Securities for whom they may act as agent. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agent. Under
such underwriting agreements, underwriters, dealers and agents who
participate in the distribution of the Offered Securities, may be entitled to
indemnification by the Company against certain civil liabilities, including
liabilities under the Securities Act or contribution with respect to payments
which the underwriters, dealers or agents may be required to make in respect
thereof. The underwriter or underwriters with respect to an underwritten
offering of Offered Securities will be set forth in the Prospectus Supplement
relating to such offering and, if an underwriting syndicate is used, the
managing underwriter or underwriters will be set forth on the cover of such
Prospectus Supplement.
If so indicated in an applicable Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase Offered Securities from the Company at the public
offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the
date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate principal amount of Offered
Securities sold pursuant to Contracts shall not be less nor more than, the
respective amounts stated in such Prospectus Supplement. Institutions with
whom Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational
and charitable institutions and other institutions, but will in all cases be
subject to the approval of the Company. Contracts will not be subject to any
conditions except (i) the purchase by an institution of the Offered
Securities covered by its Contracts shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which
such institution is subject, and (ii) if the Offered Securities are being
sold to underwriters, the Company shall have sold to such underwriters the
total principal amount of the Offered Securities less the principal amount
thereof covered by Contracts. Agents and underwriters will have no
responsibility in respect of the delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with, and perform services for, the Company and its
subsidiaries and the Trustees in the ordinary course of business.
The Offered Securities may or may not be listed on a national securities
exchange or a foreign securities exchange. No assurances can be given that
there will be a market for the Offered Securities.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Hunton & Williams, Richmond, Virginia.
EXPERTS
The consolidated financial statements and financial statement schedules
of the Company incorporated in this Prospectus by reference to the Company's
Annual Report on Form 10-K for the year ended January 31, 1993 have been so
incorporated in reliance upon the reports of Deloitte & Touche, independent
auditors, incorporated herein by reference given upon the authority of said
firm as experts in accounting and auditing.
With respect to the unaudited interim financial information for the
periods ended April 30, 1993, July 31, 1993 and October 31, 1993 which is
incorporated herein by reference, Deloitte & Touche have applied limited
procedures in accordance with professional standards for a review of such
information. However, as stated in their reports included in the Company's
Quarterly Reports on Form 10-Q for the quarters ended April 30, 1993, July
31, 1993 and October 31, 1993 and incorporated by reference herein, they did
not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. Deloitte & Touche are not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for their reports on
the unaudited interim financial information because those reports are not
"reports" or a "part" of the registration statement prepared or certified by
an accountant within the meaning of Sections 7 and 11 of the Act.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, AGENT OR
DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATIONS THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPNAY SINCE THE DATE HEREOF. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICATATION.
____________________
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.. . . . . . . . . . . . . . 2
THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
RATIO OF EARNINGS TO FIXED CHARGES . . . . . . . . . . . . . . . . . . . . 4
DESCRIPTION OF DEBT SECURITIES. . . . . . . . . . . . . . . . . . . . . . . 4
DESCRIPTION OF PREFERRED STOCK. . . . . . . . . . . . . . . . . . . . . . . 17
DESCRIPTION OF COMMON STOCK.. . . . . . . . . . . . . . . . . . . . . . . . 23
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
LEGAL MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
<PAGE>
$500,000,000
Lowe's
Securities
------------------
PROSPECTUS
------------------
, 199_
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are as
follows:
Securities and Exchange Commission registration fee $172,415
Blue Sky fees and expenses 15,000
Legal fees 25,000
Accounting fees 35,000
Rating agency fees 150,000
Trustee fee 12,500
Printing, engraving and postage expenses 25,000
Miscellaneous expenses 15,085
--------
Total $450,000
========
Item 15. Indemnification of Directors and Officers
Article IV of the Company's Bylaws provides that the Company will
indemnify any person as an officer or director of the Company or as an
officer, director, trustee or partner of another corporation, trust,
partnership or employee benefit plan at the request of the Company, against
any liability incurred in connection with any proceeding arising out of such
service. To the extent that such person is successful on the merits or
otherwise in defense of any such proceeding, the Company will indemnify him
against expenses actually and reasonably incurred in such defense. No
indemnification is available if, at the time of the activities which are the
subject of the proceeding, such person knew or believed that such activities
were clearly in conflict with the best interests of the Company. Further,
Section 55-8-51 of the North Carolina Business Corporation Act provides that
a corporation may not indemnify a director in connection with a proceeding by
or in the right of the corporation in which such director was adjudged liable
to the corporation or in connection with any other proceeding charging
improper personal benefit to him, whether or not involving action in his
official capacity, in which he is adjudged liable on the basis that personal
benefit was improperly received by him.
The Company maintains an insurance policy for the benefit of directors
and officers insuring them against claims that are made against them by
reason of any wrongful act (as defined) committed in their capacity as
directors or officers.
Item 16. Exhibits
4.1 Form of Indenture between the Company and Chemical Bank.
4.2 Form of Indenture between the Company and Wachovia Bank of North
Carolina, N.A.
4.3 Rights Agreement dated September 9, 1988 between the Company and
Wachovia Bank of North Carolina, N.A., as Rights Agent
(incorporated herein by reference to Exhibit 4.1 of the Company's
Current Report on Form 8-K dated September 9, 1988)
4.4 Proposed Form of Deposit Agreement to be entered into by the Company*
4.5 Proposed Form of Deposit Receipt*
5 Opinion of Hunton & Williams
12 Statement re Computation of Ratios
15 Letter of Deloitte & Touche re Unaudited Interim Financial Information
23.1 Consent of Deloitte & Touche
23.2 Consent of Hunton & Williams (included in Exhibit 5)
24 Powers of Attorney of Directors and Officers of the Company (included
on signature pages)
25.1 Statement of Eligibility and Qualification on Form T-1 of Chemical
Bank, as the Trustee, under the Trust Indenture Act of 1939
25.2 Statement of Eligibility and Qualification on Form T-1 of Wachovia Bank
of North Carolina, N.A., as the Trustee, under the Trust Indenture
Act of 1939
______________
*To be filed subsequent to effectiveness of this Registration Statement and
incorporated by reference pursuant to a Report on Form 8-K.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3 of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; and
(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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the
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
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of a trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act of 1939.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of North Wilkesboro, State of North
Carolina, on December 30, 1993.
LOWE'S COMPANIES, INC.
(Registrant)
By: /s/ Leonard G. Herring
Leonard G. Herring
President and Chief
Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on December 30, 1993. Each of the directors and/or
officers of Lowe's Companies, Inc. whose signature appears below hereby
appoints Leonard G. Herring, Harry B. Underwood II and Lathan M. Ewers, Jr.,
and each of them severally, as his attorney-in-fact to sign in his name and
behalf, in any and all capacities stated below, and to file with the
Commission any and all amendments, including post-effective amendments, to
this registration statement, making such changes in the registration
statement as appropriate, and generally to do all such things in their behalf
in their capacities as officers and directors to enable Lowe's Companies,
Inc. to comply with the provisions of the Securities Act of 1933, and all
requirements of the Securities and Exchange Commission.
Signature Title
--------- -----
/s/ Robert L. Srickland Chairman of the Board of
(Robert L. Strickland) Directors and Director
/s/ Leonard G. Herring President, Chief Executive
(Leonard G. Herring) Officer and Director
(Principal Executive Officer)
/s/ Harry B. Underwood II Senior Vice President,
(Harry B. Underwood II) Treasurer and Chief
Financial Officer
(Principal Financial Officer)
/s/ Richard D. Elledge Vice President and Chief
(Richard D. Elledge) Accounting Officer
(Principal Accounting Officer)
/s/ William A. Andres Director
(William A. Andres)
/s/ John M. Belk Director
(John M. Belk)
/s/ Gordon E. Cadwgan Director
(Gordon E. Cadwgan)
/s/ Petro Kulynych Director
(Petro Kulynych)
/s/ Russell B. Long Director
(Russell B. Long)
/s/ Jack C. Shewmaker Director
(Jack C. Shewmaker)
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
4.1 Form of Indenture between the Company and Chemical Bank.
4.2 Form of Indenture between the Company and Wachovia Bank of North
Carolina, N.A.
4.3 Rights Agreement dated September 9, 1988 between the Company and
Wachovia Bank of North Carolina, N.A., as Rights Agent
(incorporated herein by reference to Exhibit 4.1 of the Company's
Current Report on Form 8-K dated September 9, 1988)
4.4 Proposed Form of Deposit Agreement to be entered into by the Company*
4.5 Proposed Form of Deposit Receipt*
5 Opinion of Hunton & Williams
12 Statement re Computation of Ratios
15 Letter of Deloitte & Touche re Unaudited Interim Financial Information
23.1 Consent of Deloitte & Touche
23.2 Consent of Hunton & Williams (included in Exhibit 5)
24 Powers of Attorney of Directors and Officers of the Company (included
on signature pages)
25.1 Statement of Eligibility and Qualification on Form T-1 of Chemical
Bank, as the Trustee, under the Trust Indenture Act of 1939
25.2 Statement of Eligibility and Qualification on Form T-1 of Wachovia Bank
of North Carolina, N.A., as the Trustee, under the Trust Indenture
Act of 1939
_____________
*To be filed subsequent to effectiveness of this Registration Statement and
incorporated by reference pursuant to a Report on Form 8-K.
EXHIBIT 4.1
LOWE'S COMPANIES, INC.
AND
CHEMICAL BANK, Trustee
Indenture
Dated as of __________ __, 199_
Senior Debt Securities
<PAGE>
Reconciliation and tie between
the Trust Indenture Act of 1939 and Indenture,
dated as of _________ __, 199_*
Trust Indenture
Act Section Indenture Section
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . .609
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . .609
(a)(3). . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . . 608, 610
(b) . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . .613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .613
Section 312(a) . . . . . . . . . . . . . . . . . . . .701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .703
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . .703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . .703
Section 314(a) . . . . . . . . . . . . . . . . . . . . .704, 1005
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(3). . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(f) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . .601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . .101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . .512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . .513
(a)(2). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .508
Section 317(a)(1). . . . . . . . . . . . . . . . . . . . . . .503
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . .504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . .107
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .107
_____________________
* This table shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . . . . . 1
Section 101. Definitions. . . . . . . . . . . . . . . . 1
Section 102. Compliance Certificates and Opinions . . . 8
Section 103. Form of Documents Delivered to Trustee . . 9
Section 104. Acts of Holders. . . . . . . . . . . . . . 9
Section 105. Notices, Etc., to Trustee and Company. . . 11
Section 106. Notice to Holders; Waiver. . . . . . . . . 11
Section 107. Conflict with Trust Indenture Act. . . . . 12
Section 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . 12
Section 109. Successors and Assigns . . . . . . . . . . 12
Section 110. Separability Clause. . . . . . . . . . . . 12
Section 111. Benefits of Indenture. . . . . . . . . . . 13
Section 112. Governing Law. . . . . . . . . . . . . . . 13
Section 113. Legal Holidays . . . . . . . . . . . . . . 13
ARTICLE TWO - SECURITY FORMS . . . . . . . . . . . . . . . . . 13
Section 201. Forms of Securities. . . . . . . . . . . . 13
Section 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . 14
Section 203. Securities in Global Form. . . . . . . . . 14
ARTICLE THREE - THE SECURITIES . . . . . . . . . . . . . . . . 14
Section 301. Amount Unlimited; Issuable in Series . . . 14
Section 302. Denominations. . . . . . . . . . . . . . . 16
Section 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . 17
Section 304. Temporary Securities . . . . . . . . . . . 18
Section 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . 19
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 21
Section 307. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . 22
Section 308. Persons Deemed Owners. . . . . . . . . . . 24
Section 309. Cancellation . . . . . . . . . . . . . . . 24
Section 310. Computation of Interest. . . . . . . . . . 24
ARTICLE FOUR - SATISFACTION AND DISCHARGE. . . . . . . . . . . 24
Section 401. Satisfaction and Discharge of Indenture. . 24
Section 402. Application of Trust Money . . . . . . . . 26
ARTICLE FIVE - REMEDIES. . . . . . . . . . . . . . . . . . . . 26
Section 501. Events of Default. . . . . . . . . . . . . 26
Section 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . 29
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 31
Section 504. Trustee May File Proofs of Claim . . . . . 31
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . 32
Section 506. Application of Money Collected . . . . . . 32
Section 507. Limitation on Suits. . . . . . . . . . . . 33
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . 33
Section 509. Restoration of Rights and Remedies . . . . 34
Section 510. Rights and Remedies Cumulative . . . . . . 34
Section 511. Delay or Omission Not Waiver . . . . . . . 34
Section 512. Control by Holders . . . . . . . . . . . . 34
Section 513. Waiver of Past Defaults. . . . . . . . . . 35
Section 514. Undertaking for Costs. . . . . . . . . . . 36
Section 515. Waiver of Stay or Extension Laws . . . . . 36
ARTICLE SIX - THE TRUSTEE. . . . . . . . . . . . . . . . . . . 36
Section 601. Certain Duties and Responsibilities. . . . 36
Section 602. Notice of Defaults . . . . . . . . . . . . 38
Section 603. Certain Rights of Trustee. . . . . . . . . 38
Section 604. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . 39
Section 605. May Hold Securities. . . . . . . . . . . . 39
Section 606. Money Held in Trust. . . . . . . . . . . . 40
Section 607. Compensation and Reimbursement . . . . . . 40
Section 608. Disqualification; Conflicting Interests. . 40
Section 609. Corporate Trustee Required; Eligibility. . 41
Section 610. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . 41
Section 611. Acceptance of Appointment by Successor . . 43
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 44
Section 613. Preferential Collection of Claims Against
Company. . . . . . . . . . . . . . . . . . 44
Section 614. Appointment of Authenticating Agent. . . . 44
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . 46
Section 702. Preservation of Information;
Communications to Holders. . . . . . . . . 46
Section 703. Reports by Trustee . . . . . . . . . . . . 47
Section 704. Reports by Company.. . . . . . . . . . . . 47
ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 801. Company May Consolidate, Etc., Only on
Certain Terms. . . . . . . . . . . . . . . 47
Section 802. Successor Substituted. . . . . . . . . . . 48
ARTICLE NINE - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 49
Section 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . 49
Section 902. Supplemental Indentures With Consent of
Holders. . . . . . . . . . . . . . . . . . 51
Section 903. Execution of Supplemental Indentures . . . 52
Section 904. Effect of Supplemental Indentures. . . . . 52
Section 905. Conformity with Trust Indenture Act. . . . 52
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . 52
Section 907. Notice of Supplemental Indentures. . . . . 52
ARTICLE TEN - COVENANTS. . . . . . . . . . . . . . . . . . . . 53
Section 1001. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . . . 53
Section 1002. Maintenance of Office or Agency. . . . . . 53
Section 1003. Money for Securities Payments to Be Held
in Trust. . . . . . . . . . . . . . . . . 53
Section 1004. Corporate Existence. . . . . . . . . . . . 55
Section 1005. Statement by Officers as to Default. . . . 55
Section 1006. Maintenance of Properties. . . . . . . . . 55
Section 1007. Payment of Taxes and Other Claims. . . . . 55
Section 1008. Restrictions on Debt . . . . . . . . . . . 56
Section 1009. Restrictions on Sales and Leasebacks . . . 57
Section 1010. Waiver of Certain Covenants. . . . . . . . 59
ARTICLE ELEVEN - REDEMPTION OF SECURITIES. . . . . . . . . . . 59
Section 1101. Applicability of Article . . . . . . . . . 59
Section 1102. Election to Redeem; Notice to Trustee. . . 59
Section 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . 59
Section 1104. Notice of Redemption . . . . . . . . . . . 60
Section 1105. Deposit of Redemption Price. . . . . . . . 61
Section 1106. Securities Payable on Redemption Date. . . 61
Section 1107. Securities Redeemed in Part. . . . . . . . 61
ARTICLE TWELVE - SINKING FUNDS . . . . . . . . . . . . . . . . 62
Section 1201. Applicability of Article . . . . . . . . . 62
Section 1202. Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . . 62
Section 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . 62
ARTICLE THIRTEEN - REPAYMENT OF SECURITIES AT OPTION OF
HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1301. Applicability of Article . . . . . . . . . 63
Section 1302. Notice of Repayment Date . . . . . . . . . 63
Section 1303. Deposit of Repayment Price . . . . . . . . 64
Section 1304. Securities Payable on Repayment Date . . . 64
Section 1305. Securities Repaid in Part. . . . . . . . . 64
ARTICLE FOURTEEN - CONVERSION OF SECURITIES. . . . . . . . . . 65
Section 1401. General. . . . . . . . . . . . . . . . . . 65
Section 1402. Right to Convert . . . . . . . . . . . . . 65
Section 1403. Manner of Exercise of Conversion
Privilege; Delivery of Common Stock; No
Adjustment for Interest or Dividends . . . 65
Section 1404. Cash Payments in Lieu of Fractional
Shares. . . . . . . . . . . . . . . . . . 67
Section 1405. Conversion Price Adjustments; Effect of
Reclassification, Mergers, Consolidations
and Sales of Assets. . . . . . . . . . . . 67
Section 1406. Taxes on Shares Issued . . . . . . . . . . 71
Section 1407. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of
Common Stock . . . . . . . . . . . . . . . 71
Section 1408. Responsibility of Trustee. . . . . . . . . 72
Section 1409. Covenant to Reserve Shares . . . . . . . . 72
Section 1410. Other Conversions. . . . . . . . . . . . . 72
ARTICLE FIFTEEN - DEFEASANCE AND COVENANT DEFEASANCE . . . . . 73
Section 1501. Applicability of Article; Company's
Option to Effect
Defeasance or Covenant Defeasance . . . . 73
Section 1502. Defeasance and Discharge . . . . . . . . . 73
Section 1503. Covenant Defeasance. . . . . . . . . . . . 73
Section 1504. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . 74
Section 1505. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . 76
Section 1506. Reinstatement. . . . . . . . . . . . . . . 76
ARTICLE SIXTEEN - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS. . . . . . . . . . . . . . . . . . 77
Section 1601. Immunity of Incorporators, Stockholders,
Officers and Directors . . . . . . . . . . 77
<PAGE>
INDENTURE, dated as of __________ __, 199_, between LOWE'S
COMPANIES, INC., a corporation duly organized and existing under
the laws of the State of North Carolina (herein called the
"Company"), having its principal office at Highway 268 East, North
Wilkesboro, North Carolina 28656, and CHEMICAL BANK, a corporation
duly organized and existing under the laws of the State of New
York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured unsubordinated debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one
or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles, and,
except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted
at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or
other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the
purposes of this definition, "control", when used with respect to
any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Attributable Debt" means, as to any particular lease under
which any Person is at the time liable, at any date as of which the
amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the
remaining term thereof (excluding any subsequent renewal or other
extension options held by the lessee), discounted from the
respective due dates thereof to such date at the rate of 10% per
annum compounded annually. The net amount of rent required to be
paid under any such lease for any such period shall be the amount
of the rent payable by the lessee with respect to such period,
after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges and contingent rents (such as those based on
sales). In the case of any lease which is terminable the lessee
upon the payment of a penalty, such net amount shall also include
the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date
upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper of general
circulation in the relevant area, printed in the English language
and customarily published on each Business Day therein.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board or any
director or directors and/or officer or officers of the Company to
whom that board or committee shall have duly delegated its
authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to
close.
"Capital Stock", as applied to the stock of any corporation,
means the capital stock of every class whether now or hereafter
authorized, regardless of whether such capital stock shall be
limited to a fixed sum or percentage with respect to the rights of
the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means any stock of any class of the Company
which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject
to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets (less applicable reserves and other properly deductible
items) after deducting therefrom (i) all current liabilities, and
(ii) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set
forth on the most recent balance sheet of the Company and its
consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
"Conversion Price" means with respect to any series of
Securities which are convertible into Common Stock, the price per
share of Common Stock at which the Securities of such series are so
convertible as set forth in the Board Resolution with respect to
such series (or in any supplemental indenture entered into pursuant
to Section 901(9) with respect to such series), as the same may be
adjusted from time to time in accordance with Section 1405 (or such
supplemental indenture pursuant to Section 1401).
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of
this Indenture is located at 450 West 33rd Street, New York, New
York 10001.
"corporation" includes corporations, associations, companies
and business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of a Global Security, a
clearing agency registered under the Securities Exchange Act of
1934, as amended, or any successor thereto, which shall in either
case be designated by the Company pursuant to Section 301 or 305
until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities of
any such series shall mean the Depositary with respect to the
Securities of that series.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed having
a maturity of more than 12 months from the date as of which the
amount thereof is to be determined or having a maturity of less
than 12 months but by its terms being renewable or extendible
beyond 12 months from such date at the option of the borrower.
"Global Security or Securities" means one or more fully
registered Securities in global form evidencing all or a part of a
series of Securities issued to the Depositary for such series or
its nominee or registered in the name of the Depositary or its
nominee.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by
Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or by repayment or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien,
security interest, conditional sale or other title retention
agreement or other similar encumbrance.
"Officers' Certificate" means a certificate signed by at least
two officers of the Company, one signature being that of the
Chairman of the Board, the President or a Vice President, and the
other signature being that of the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption
money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities with respect to which the Company
has effected defeasance as provided in Article Fifteen;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (a) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable
as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, and
(b) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of
(and premium, if any) and interest on the Securities of that series
are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any stock of any class of the Company
which has a preference over Common Stock in respect of dividends or
of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is
not mandatorily redeemable or repayable, or redeemable or repayable
at the option of the Holder, otherwise than in shares of Common
Stock or Preferred Stock of another class or series or with the
proceeds of the sale of Common Stock or Preferred Stock.
"Principal Property" means any building, structure or other
facility, together with the land upon which it is erected and
fixtures comprising a part thereof, used primarily for selling home
improvement products or the manufacturing, warehousing or
distributing of such products, owned or leased by the Company or
any Subsidiary of the Company.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such
repayment by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at
which it is to be repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee customarily performing corporate
trust functions.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the
date specified in such Security as the fixed date on which the
principal or such installment of principal, premium, if any, or
interest on such Security is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly,
by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of
this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"United States" means the United States of America.
"Vice President", when used with respect to the Company, means
any vice president, whether or not designated by a number or a word
or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than
the certificate provided for in Section 1005) shall include:
(1) A statement that each individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the
matters upon which his certificate or opinion are based are
erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose
of determining the Holders of Securities of any series entitled to
give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or in the case of any
such vote, prior to such vote, the record date for any such action
or vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to Section
701) prior to such first solicitation or vote, as the case may be.
With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of
Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the
relevant action.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any
particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice
given or action taken by a Holder or its agents with regard to
different parts of such principal amount pursuant to this paragraph
shall have the same effect as if given or taken by separate Holders
of each such different part.
(g) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 301 or pursuant to one or
more indentures supplemental hereto, a Holder, including a
Depositary that is the Holder of a Global Security, may make, give
or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global
Security may provide its proxy or proxies to the beneficial owners
of interests in any such Global Security through such Depositary's
standing instructions and customary practices.
(h) The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in
any Global Security held by a Depositary entitled under the
procedures of such Depositary to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall
be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date.
No such request, demand, authorization, direction, notice, consent,
waiver or other action shall be valid or effective if made, given
or taken more than 90 days after such record date.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument,
Attention: Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders. Any notice to a Holder which is mailed in the manner
herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives such notice. Where this
Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to give notice of any event to Holders by mail when
such notice is required to be given pursuant to any provision of
this Indenture, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
the duties imposed by any of Sections 310 through 317, inclusive,
of the Trust Indenture Act through the operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified
or shall be deemed to be so excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder, any Paying Agent and the Holders,
any benefit or any legal or equitable right, remedy or claim under
this Indenture; provided that this Section 111 shall not limit the
rights of any Holder of a Global Security to give any notice or
take any action, or appoint any agents, with regard to any part or
different parts of the principal amount of such Global Security
pursuant to Section 104.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date or at the Stated Maturity, provided that
no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking
fund payment date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms of Securities.
The Securities of each series shall be in such form or forms
(including global form) as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon
as may be required to comply with any law or with any rules made
pursuant thereto or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities. If
the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved or may be produced in any other manner permitted by the
rules of any securities exchange upon which the Securities may be
listed and (with respect to Global Securities of any Series) the
rules of the Depositary, all as determined by the officers
executing such Securities, as evidenced by their execution of such
Securities.
Section 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Chemical Bank, as Trustee
By..............................
Authorized Officer
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such
Security may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and
also may provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the
Trustee and in such manner as shall be specified in such Security.
Any instructions by the Company with respect to a Security in
global form, after its initial issuance, shall be in writing but
need not comply with Section 102.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. All
Securities of each series issued under this Indenture shall in all
respects be equally and ratably entitled to the benefits hereof
with respect to such series without preference, priority or
distinction on account of the actual time of the authentication and
delivery or Maturity of the Securities of such series. There shall
be established in or pursuant to a Board Resolution, and, to the
extent not set forth therein, set forth in an Officers'
Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series
from all other series of Securities);
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be
authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in
lieu of, other Securities of that series pursuant to
Section 304, 305, 306, 906, 1107, 1305 or 1403);
(3) the date or dates on which the principal and
premium, if any, of the Securities of the series is
payable;
(4) the rate or rates, or the method of
determination thereof, at which the Securities of the
series shall bear interest, if any, the date or dates
from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any
Interest Payment Date;
(5) if other than the Corporate Trust Office, the
place or places where the principal of (and premium, if
any) and interest on Securities of the series shall be
payable;
(6) the period or periods within which, the price
or prices at which and the terms and conditions upon
which Securities of the series may be redeemed, in whole
or in part, at the option of the Company;
(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to
any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section
502;
(10) if the Securities of the series shall be issued
in whole or in part in the form of a Global Security or
Securities, the Depositary for such Global Security or
Securities;
(11) any addition to or change in the Events of
Default which applies to any Securities of the series;
(12) any addition to or change in the covenants set
forth in Article Ten which applies to Securities of the
series;
(13) if the Securities of the series are convertible
into Common Stock, the Conversion Price therefor, the
period during which such Securities are convertible and
any terms and conditions for the conversion of such
Securities which differ from Article Fourteen;
(14) the application, if any, of Section 1502 or
1503 to the Securities of the series and any provisions
in modification of, in addition to or in lieu of any of
the provisions of Article Fifteen; and
(15) any other terms of the series (which terms
shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution and set forth in
such Officers' Certificate, to the extent applicable, or in any
such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the
Holders, for issuance of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Board Resolution or the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions
with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such
offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, and the Trustee shall authenticate and deliver such
Securities upon Company Order. If all the Securities of any one
series are not to be originally issued at one time and if a Board
Resolution relating to such Securities shall so permit, such
Company Order may set forth procedures (acceptable to the Trustee)
for the issuance and authentication of such Securities.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section
201, that such form has been established in conformity with
the provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver
the Board Resolution or Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior
to the time of authentication of each Security of such series if
such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued
and such documents reasonably contemplate the issuance of all
Securities of such series.
Unless otherwise provided in the form of Security for any
series, each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this
Indenture.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in the form of one or
more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company
Order with respect to such series, authenticate and deliver one or
more Global Securities that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series having the same terms issued
and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: "Unless
and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary."
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations. Until so exchanged
the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at one of its offices or
agencies maintained pursuant to Section 1002 a register (the
register maintained in such office being herein sometimes referred
to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The
Person responsible for the maintenance of the Security Register is
referred to herein as the "Security Registrar." The Trustee is
hereby initially appointed Security Registrar for the purpose of
registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of
any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series (except
Global Securities) may be exchanged for other Securities of the
same series, of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company
and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 906, 1107, 1305 or 1403 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series
selected for redemption under Section 1103 and ending at the close
of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security
being redeemed in part.
Notwithstanding any other provision of this Section 305,
unless and until it is exchanged in whole or in part for Securities
in definitive registered form, a Global Security representing all
or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the
Depositary for the Securities of a series shall no longer be
registered or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to the
Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of
such condition, the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and
deliver Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange
for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of
one or more Global Securities shall no longer be represented by a
Global Security or Securities. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series
in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing
such series, in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with
respect to a series of Securities, the Depositary for such series
of Securities may surrender a Global Security for such series of
Securities in exchange in whole or in part for Securities of such
series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to the Person specified by such Depositary a
new Security or Securities of the same series, of any
authorized denomination as requested by such Person, in
an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and
the aggregate principal amount of Securities
authenticated and delivered pursuant to Clause (i) above.
Upon the exchange of a Global Security for Securities in
definitive registered form, in authorized denominations, such
Global Security shall be canceled by the Trustee. Securities in
definitive registered form issued in exchange for a Global Security
pursuant to this Section 305 shall be registered in such names and
in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall not be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on,
such instructions. The Trustee shall, at Company expense, deliver
such Securities to or as directed by the Persons in whose names
such Securities are so registered.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee,
together with such other security or indemnity as may be reasonably
required by the Trustee to save it harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such
Security, subject to satisfaction of the foregoing conditions.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security
which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest. The Company and the Trustee understand that interest on
any Global Security will be disbursed or credited by the Depositary
to the Persons having ownership thereof pursuant to a book entry or
other system maintained by the Depositary.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case,
as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the
Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
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 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee, except that if a Global Security
is so surrendered, the Company shall execute and the Trustee shall
authenticate and deliver to the Depositary for such Global
Security, without service charge, a new Global Security or
Securities in a denomination equal to and in exchange for the
portion of the Global Security so surrendered not to be paid,
redeemed, repaid or registered for transfer or exchange or for
credit. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in accordance
with its customary procedures and a certificate of disposition
shall be delivered to the Company, unless, by a Company Order, the
Company shall direct the canceled Securities be returned to it.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
Upon Company Request, this Indenture shall cease to be of
further effect with respect to the Securities of a particular
series (except as to any surviving rights to convert Securities
into Common Stock, or rights of registration of transfer or
exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture as to such Securities, when:
(1) either:
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year, under arrangements
satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for
the purpose sums sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption
Date, as the case may be; and
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such Securities;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Securities of a particular series, the
obligations of the Company to the Trustee under Section 607, the
obligations, if any, of the Trustee to any Authenticating Agent
under Section 614 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section,
the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, in each case with respect to such
Securities, shall survive.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements of the Company under this
Indenture with respect to any series of Securities, the obligations
of the Company to the Trustee under Section 607, the obligations of
the Trustee under Section 402 and the last paragraph of Section
1003 shall survive with respect to such series of Securities.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to
the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited
with the Trustee. All money deposited with the Trustee pursuant to
Section 401 (and held by it or any Paying Agent) for the payment of
Securities subsequently converted into Common Stock shall be
returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of
that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of
series of Securities other than that series), and
continuance of such default or breach for a period of 60
days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or
other evidence of indebtedness for money borrowed by the
Company or any Subsidiary (including a default with
respect to Securities of any series other than that
series) or under any mortgage, indenture (including this
Indenture) or instrument under which there may be issued
or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any
Subsidiary (each such bond, debenture, note, evidence of
indebtedness, mortgage, indenture or instrument being
referred to as a "Loan Document"), whether such
indebtedness now exists or shall hereafter be created,
which default shall constitute a failure to pay any
portion of the principal of such indebtedness when due
and payable after the expiration of any applicable grace
period with respect thereto or shall have resulted in
such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness
having been discharged or such acceleration having been
rescinded or annulled within a period of 10 days after
there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or
such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder, if
the aggregate outstanding principal amount of
indebtedness under the Loan Document with respect to
which such default or acceleration has occurred exceeds
$10 million; provided, however, that if such default
under such Loan Document shall be cured by the Company or
be waived by the holders of such indebtedness or if such
acceleration shall be rescinded or annulled, in each case
as may be permitted by such Loan Document, then the Event
of Default hereunder by reason of such default shall be
deemed likewise to have been thereupon cured or waived;
and provided, further, that, subject to the provisions of
Sections 601 and 602, the Trustee shall not be deemed to
have knowledge of such default or acceleration unless
either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such default or acceleration or
(B) the Trustee shall have received written notice
thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under
any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect
of the Company or any Subsidiary in an involuntary case
or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any
Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect
of the Company or any Subsidiary under any applicable
Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Subsidiary
or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the commencement by the Company or any
Subsidiary of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by it to the entry of a decree or order
for relief in respect of the Company or any Subsidiary in
an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing
of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official
of the Company or any Subsidiary or of any substantial
part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate
action by the Company or any Subsidiary in furtherance of
any such action; or
(8) any other Event of Default provided with
respect to Securities of that series.
Upon receipt by the Trustee of any proposed Notice of Default
from any Holder with respect to Securities of a series all or part
of which is represented by a Global Security, a record date shall
be established for determining Holders of Outstanding Securities of
such series entitled to join in such proposed Notice of Default,
which record date shall be at the close of business on the day the
Trustee receives such proposed Notice of Default. The Holders on
such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such proposed Notice of
Default, whether or not such Holders remain Holders after such
record date; provided, that unless Holders of at least 25% in
principal amount of the Outstanding Securities of such series, or
their proxies, shall have joined in such proposed Notice of Default
prior to the day which is 90 days after such record date, such
proposed Notice of Default shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing
in this paragraph shall prevent a Holder, or a proxy of a Holder,
from giving (i) after expiration of such 90-day period, a new
proposed Notice of Default identical to a proposed Notice of
Default which has been canceled pursuant to the proviso to the
preceding sentence, or (ii) during any such 90-day period, an
additional proposed Notice of Default with respect to any new or
different fact or circumstance permitting the giving of a proposed
Notice of Default with respect to Securities of such series, in
either of which events a new record date shall be established
pursuant to the provisions of this Section 501. Any such proposed
Notice of Default shall be considered a Notice of Default hereunder
at such time, if any, that Holders of at least 25% in principal
amount of the Outstanding Securities shall have joined in such
proposed Notice of Default by giving timely notice to the Trustee
hereunder.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in
every such case, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the
terms thereof) of all of the Securities of that series to be due
and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all
Securities of that series,
(B) the principal of (and premium, if
any, on) any Securities of that series which
have become due otherwise than by such
declaration of acceleration and any interest
thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to
Securities of that series, other than the non-payment of
the principal of Securities of that series which have
become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Upon receipt by the Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, with respect
to Securities of a series all or part of which is represented by a
Global Security, a record date shall be established for determining
Holders of Outstanding Securities of such series entitled to join
in such notice, which record date shall be at the close of business
on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that
unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice
prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action
by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, (i) after expiration of such 90-day period, a new written
notice of declaration of acceleration or rescission and annulment
thereof, as the case may be, that is identical to a written notice
which has been canceled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional
written notice of declaration of acceleration with respect to
Securities of such series, or an additional written notice of
rescission and annulment of any declaration of acceleration with
respect to any other Event of Default with respect to Securities of
such series, in either of which events a new record date shall be
established pursuant to the provisions of this Section 502.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest
on any Security when such interest becomes due and
payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium, if
any) and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities and, in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may, but shall not be obligated to, institute a judicial
proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to file
and prove a claim for the whole amount of principal, premium and
interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in
order to have claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and to collect and receive any moneys or
other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the
Trustee under Section 607;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and
interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to
the amounts due and payable on such Securities for
principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same
as a court of competent jurisdiction may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount
of the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 307) interest on such Security on
the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption or repayment at the option of the Holder,
on the Redemption Date or the Repayment Date, as the case may be)
and (if the terms of such Security so provide) to have such
Security converted into Common Stock pursuant to Article Fourteen
and to institute suit for the enforcement of any such payment or
conversion, and such rights shall not be impaired without the
consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of at least a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct
the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such
series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, expose the
Trustee to personal liability or be unduly prejudicial to
Holders not joining therein, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Upon receipt by the Trustee of any such direction with respect
to Securities of a series all or part of which is represented by a
Global Security, a record date shall be established for determining
Holders of Outstanding Securities of such series entitled to join
in such direction, which record date shall be determined in
accordance with Section 104(e). The Holders on such record date,
or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders
remain Holders after such record date; provided, that unless
Holders of at least a majority in principal amount of the
outstanding Securities of such series, or their proxies, shall have
been joined in such direction prior to the day which is 90 days
after such record date, such direction shall automatically and
without further action by any Holder be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, (i) after expiration of such 90-day
period, a new direction identical to a direction which has been
canceled pursuant to the provisions to the preceding sentence or
(ii) during any such 90-day period a new direction contrary to or
different from such direction, in either of which events a new
record date shall be established pursuant to the provisions of this
Section 512.
Section 513. Waiver of Past Defaults.
By Act delivered to the Company and the Trustee, the Holders
of not less than a majority in principal amount of the Outstanding
Securities of any affected series may on behalf of the Holders of
all the Securities of such series waive any past default hereunder
with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive
any past default hereunder. If a record date is fixed, the Holders
on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to waive any default hereunder,
whether or not such Holders remain Holders after such record date;
provided, that unless such majority in principal amount shall have
been obtained prior to the date which is 90 days after such record
date, any such waiver previously given shall automatically and
without further action by any Holder be canceled and of no further
effect.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit
instituted by the Trustee, by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or by any Holder for the
enforcement of the payment of the principal of (or premium, if any)
or interest on any Security on or after the Stated Maturity
expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption
Date or Repayment Date, as the case may be, and (if the terms of
such Security so provide) to have such Security converted into
Common Stock pursuant to Article Fourteen).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision of this Indenture are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice
of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal, premium or
interest on any Security of such series or in the payment of any
sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee
of the board of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice
is in the interests of the Holders of the Securities of such
series; and provided, further, that in the case of any default of
the character specified in Section 501(4) with respect to the
Securities of such series no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time or both would become, an Event
of Default.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to
have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of
the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof. The Trustee shall
not be deemed to have knowledge of the identity of any Subsidiary
unless either (A) a Responsible Officer of the Trustee shall have
actual knowledge thereof or (B) the Trustee shall have received
written notice thereof from the Company or any Holder.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to
the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of Section 310 of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions
of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be
deemed to have a conflicting interest with respect to the
Securities of any series by virtue of being Trustee with respect to
the Securities of any particular series of Securities other than
that series or by virtue of being trustee under the Indenture,
dated as of April 15, 1992, between the Company and the Trustee.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least
$50,000,000. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to any or all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to any or
all Securities and the appointment of a successor Trustee or
Trustees with respect to such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities
of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of that
or those series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has been a bona
fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
the Securities of any series to all Holders of Securities of such
series in the manner provided in Section 106. Each notice of
appointment shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its lien, if any, provided for
in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of Section 311 of the Trust
Indenture Act regarding the collection of such claims against the
Company (or any such other obligor). A Trustee that has resigned
or been removed shall be subject to and comply with said Section
311 to the extent required thereby.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities (which may be an
Affiliate of the Company) which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon
registration of transfer or partial redemption or repayment thereof
or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business and in good standing under the laws of
the United States of America, any State or the District of
Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of no less than
$50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent for any series of Securities may
resign at any time by giving written notice thereof to the Trustee
for such series and to the Company. The Trustee for any series of
Securities may at any time terminate the agency of an
Authenticating Agent for such series by giving written notice
thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee of such series may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail written
notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses
appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment thereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
Except with respect to an Authenticating Agent appointed at
the request of the Company, the Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for
its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payments, pursuant to the provisions of
Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series described therein
referred to in the within-mentioned Indenture.
Chemical Bank, as Trustee
By__________________________________________
As Authenticating Agent
By__________________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee for the Securities
of such Series
(a) semiannually, not more than 15 days after each
Regular Record Date relating to that series (or, if there
is no Regular Record Date relating to that series, on
June 30 and December 31), a list, in such form as such
Trustee may reasonably require, of the names and
addresses of the Holders of that series as of such date,
and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee is Security
Registrar with respect to Securities of a particular series no such
list shall be required with respect to the Securities of such
series.
Section 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of information as to
the names and addresses of the Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the year 1994, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents
or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission. Delivery of
such reports to the Trustee is for informational purposes only and
the Trustee's receipt of such reports shall not constitute
constructive notice of any information contained therein or
determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall
not permit any Person to consolidate with or merge into the
Company, unless:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease
its properties and assets substantially as an entirety to
any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of
the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to
the Trustee the due and punctual payment of the principal
of and any premium and interest on all the Securities and
the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such
transaction, and treating any indebtedness which becomes
an obligation of the Company or a Subsidiary as a result
of such transaction as having been incurred by the
Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties
or assets of the company could become subject to a
Mortgage which would not be permitted by this Indenture,
the Company or such successor Person, as the case may be,
shall prior to or contemporaneously with such
consolidation, merger, conveyance transfer or lease, take
such steps as shall be necessary effectively to secure
the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to
such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this
Indenture and the Securities. In the case of a lease, the
predecessor Person shall not be released from its obligations to
pay the principal of, premium, if any, and interest on the
Securities. All Securities issued by the successor Person shall in
all respects have the same legal priority as the Securities
theretofore or thereafter authenticated, issued and delivered in
accordance with the terms of this Indenture.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such
covenants are expressly being included solely for the
benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit
of less than all series of Securities, stating that such
Events of Default are expressly being included solely for
the benefit of such series); or
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal and
with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more
series of Securities, provided that any such addition,
change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit
of such provision nor (B) modify the rights of the Holder
of any such Security with respect to such provision or
(ii) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities pursuant to Sections
801 or 1008 or otherwise; or
(7) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b);
or
(9) to add to or change any provisions of this
Indenture to such extent as shall be necessary to permit
or facilitate the issuance of Securities convertible into
other securities; or
(10) to effectuate the provisions of Section
1405(b); or
(11) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit
or facilitate the defeasance and discharge and covenant
defeasance with respect to any series of Securities
pursuant to Sections 1502 or 1503; provided, however,
that any such action shall not adversely affect the
interests of the Holders of Securities of such series or
any other series of Securities in any material respect;
or
(12) to add or change or eliminate any provisions of
this Indenture as shall be necessary or desirable in
accordance with any amendments to the Trust Indenture
Act; or
(13) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or
inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions
arising under this Indenture, provided that such action
pursuant to this Clause (13) shall not adversely affect
the interests of the Holders of Securities of any series
in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under
this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of principal of, premium, if any, or
interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, change the method of
determination of interest thereon, or reduce the amount
of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
502, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place
of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is
payable or impair the right of any Holders of Securities
of a Series entitled to the conversion rights set forth
in Article Fourteen to receive securities upon the
exercise of such conversion rights, or impair the right
to institute suit for the enforcement of any such payment
or delivery of Common Stock for Securities converted
pursuant to Article Fourteen on or after the Stated
Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be, or
in the case of such conversion, on or after the date of
conversion), or
(2) reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1010, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and
Section 1010, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and
901(8).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice to all Holders of such fact,
setting forth in general terms the substance of such supplemental
indenture, in the manner provided in Section 106. Any failure of
the Company to give such notice, or any defect therein, shall not
in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Securities
of that series in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment an office
or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of
transfer, conversion or exchange and where notices and demands to
or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company terminates the
appointment of a Paying Agent or Security Registrar or conversion
agent or otherwise shall fail to maintain any such required office
or agency, the Company shall use its reasonable best efforts to
appoint a successor Paying Agent or Security Registrar or
conversion agent reasonably acceptable to the Trustee. If the
Company fails to maintain a Paying Agent or Security Registrar or
conversion agent, the Trustee will act as such, and the Company
hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of
Payment for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before
each due date of the principal of (and premium, if any) or interest
on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify
the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due,
such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the
Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on
Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default
by the Company (or any other obligor upon the Securities
of that series) in the making of any payment of principal
(and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal
of (and premium, if any) or interest on any Security of any series
and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence and that of each Subsidiary and the
rights (charter and statutory) and franchises of the Company and
its Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right or franchise if in the judgment
of the Company it shall be necessary, advisable or in the interest
of the Company to discontinue the same.
Section 1005. Statement by Officers as to Default.
Pursuant to Section 314(a) of the Trust Indenture Act, the
Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, a
certificate signed by the principal executive, financial or
accounting officer of the Company, stating whether or not to the
best knowledge of the signer thereof the Company is in default in
the performance and observance of any of the terms, provisions,
covenants and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided, hereunder) and,
if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith
may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business
of any Subsidiary.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property
of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings.
Section 1008. Restrictions on Debt.
The Company will not itself, and will not permit any
Subsidiary to, incur, issue, assume or guarantee any loans, whether
or not evidenced by negotiable instruments or securities, or any
notes, bonds, debentures or other similar evidences of indebtedness
for money borrowed (loans, notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed being
hereinafter in this Article called "Debt"), secured by a Mortgage
on any Principal Property of the Company or any Subsidiary, or any
shares of Capital Stock or Debt of any Subsidiary, without
effectively providing that the Securities of each series then
Outstanding (together with, if the Company shall so determine, any
other Debt of the Company or such Subsidiary then existing or
thereafter created which is not subordinate to the Securities of
each series then Outstanding) shall be secured equally and ratably
with (or, at the option of the Company, prior to) such secured
Debt, so long as such secured Debt shall be so secured, and the
Company will not permit any Subsidiary to incur, issue, assume or
guarantee any unsecured Debt or to issue any Preferred Stock in
each instance unless the aggregate amount of (A) all such Debt, (B)
the aggregate preferential amount to which such Preferred Stock
would be entitled on any involuntary distribution of assets and (C)
Attributable Debt of the Company and its Subsidiaries in respect of
sale and leaseback transactions (as defined in Section 1009) would
not exceed 10% of Consolidated Net Tangible Assets; provided,
however, that this Section 1008 shall not apply to, and there shall
be excluded from Debt in any computation under this Section 1008:
(1) Debt secured by Mortgages on any property acquired,
constructed or improved by the Company or any Subsidiary after
the first date on which a Security is authenticated by the
Trustee under this Indenture which Mortgages are created or
assumed contemporaneously with, or within 30 months after,
such acquisition, or completion of such construction or
improvement, or within six months thereafter pursuant to a
firm commitment for financing arranged with a lender or
investor within such 30-month period, to secure or provide for
the payment of all or any part of the purchase price of such
property or the cost of such construction or improvement
incurred after the first date on which a Security is
authenticated by the Trustee under this Indenture, or, in
addition to Mortgages contemplated by paragraphs 2 and 3
below, Mortgages on any property existing at the time of
acquisition thereof, provided that any such Mortgage shall not
apply to any property theretofore owned by the Company or any
Subsidiary other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which
the property so constructed, or the improvement, is located;
(2) Debt of any corporation existing at the time such
corporation is merged with or into the Company or a
Subsidiary;
(3) Debt of any corporation existing at the time such
corporation becomes a Subsidiary;
(4) Debt of a Subsidiary to the Company or to another
Subsidiary;
(5) Debt secured by Mortgages securing obligations
issued by a state, territory or possession of the United
States, or any political subdivision of any of the foregoing,
or the District of Columbia, to finance the acquisition of or
construction on property, and on which the interest is not, in
the opinion of tax counsel of recognized standing or in
accordance with a ruling issued by the Internal Revenue
Service, includable in gross income of the holder by reason of
Section 103(A)(1) of the Internal Revenue Code (or any
successor to such provision) as in effect at the time of the
issuance of such obligations; and
(6) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part,
of any Debt referred to in the foregoing clauses (1) to (5),
inclusive; provided, that the principal amount of the Debt
being extended, renewed or replaced shall not be increased and
such extension, renewal or replacement, in the case of Debt
secured by a Mortgage, shall be limited to all or a part of
the same property, shares of Capital Stock or Debt that
secured the Mortgage extended, renewed or replaced (plus
improvements on such property); and provided, further, that
this Section 1008 shall not apply to any issuance of Preferred
Stock by a Subsidiary to the Company or another Subsidiary,
provided that such Preferred Stock shall not thereafter be
transferable to any Person other than the Company or a
Subsidiary.
The Trustee shall have no duty or liability in monitoring or
enforcing the provisions of this Section, except as otherwise
expressly provided in this Indenture.
Section 1resi Restrictions on Sales and Leasebacks.
The Company will not itself, and will not permit any
Subsidiary to, enter into any transaction after the first date on
which a Security is authenticated by the Trustee under this
Indenture with any bank, insurance company, lender or other
investor, or to which any such bank, insurance company, lender or
investor is a party, providing for the leasing by the Company or a
Subsidiary of any Principal Property which has been or is to be
sold or transferred by the Company or such Subsidiary to such bank,
insurance company, lender or investor, or to any Person to whom
funds have been or are to be advanced by such bank, insurance
company, lender or investor on the security of such Principal
Property (herein referred to as a "sale and leaseback transaction")
unless, after giving effect thereto, the aggregate amount of all
Attributable Debt with respect to such transactions plus all Debt
to which Section 1008 is applicable would not exceed 10% of
Consolidated Net Tangible Assets. This covenant shall not apply
to, and there shall be excluded from Attributable Debt in any
computation under this Section 1009, Attributable Debt with respect
to any sale and leaseback transaction if:
(1) the lease in such sale and leaseback transaction is
for a period, including renewal rights, of not in excess of
three years, or
(2) the Company or a Subsidiary, within 180 days after
the sale or transfer shall have been made by the Company or by
a Subsidiary, applies an amount not less than the greater of
the net proceeds of the sale of the Principal Property leased
pursuant to such arrangement or the fair market value of the
Principal Property so leased at the time of entering into such
arrangement (as determined in any manner approved by the Board
of Directors) to the retirement of Funded Debt of the Company
ranking on a parity with or senior to the Securities or the
retirement of Funded Debt of a Subsidiary; provided, however,
that the amount to be applied to the retirement of such debt
of the Company or a Subsidiary shall be reduced by (x) the
principal amount of any Securities (or other notes or
debentures constituting Funded Debt) delivered within such
180-day period to the Trustee or other applicable trustee for
retirement and cancellation and (y) the principal amount of
such Funded Debt, other than items referred to in the
preceding clause (x), voluntarily retired by the Company or a
Subsidiary within 180 days after such sale; and provided,
further, that, notwithstanding the foregoing, no such
retirement may be effected by payment at maturity or pursuant
to any mandatory sinking fund payment or any mandatory
prepayment provision, or
(3) such sale and leaseback transaction is entered into
prior to, at the time of, or within 30 months after the later
of the acquisition of the Principal Property or the completion
of construction thereon, or
(4) the lease in such sale and leaseback transaction
secures or relates to obligations issued by a state, territory
or possession of the United States, or any political
subdivision of any of the foregoing, or the District of
Columbia, to finance the acquisition of or construction on
property, and on which the interest is not, in the opinion tax
counsel of recognized standing or in accordance with a ruling
issued by the Internal Revenue Service, includable in gross
income of the holder by reason of Section 103(a)(1) of the
Internal Revenue Code (or any successor to such provision) as
in effect at the time of the issuance of such obligations, or
(5) such sale and leaseback transaction is entered into
between the Company and a Subsidiary or between Subsidiaries.
The Trustee shall have no duty or liability in monitoring or
enforcing the provisions of this Section, except as otherwise
expressly provided in this Indenture.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 801(3) and in
Section 1004 and Sections 1006 to 1009, inclusive, with respect to
the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such
Holders, either waive compliance in such instance or generally
waive compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated in Section 301
for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities of any
series, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a
specified tenor are to be redeemed), the particular Securities to
be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, in a manner which
the Trustee deems fair and appropriate, which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of
such series of a denomination larger than the minimum authorized
denomination for Securities of that series. If the Company shall
so specify and identify the appropriate Securities, Securities
owned of record and beneficially by the Company or any Subsidiary
shall not be included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or
to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall, unless otherwise specified by the
terms of the Securities to be redeemed, be given not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed, in accordance with Section 106.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of
any series are to be redeemed (unless all the Securities
of such series of a specified tenor are to be redeemed),
the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of
the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption
Price will become due and payable upon each such Security
to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
(5) the place or places where such Securities are
to be surrendered for payment of the Redemption Price,
which shall be the office or agency of the Company in
each Place of Payment, and
(6) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of
the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to
be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any
premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the
Security so surrendered. If a Global Security is so surrendered,
such new Security so issued shall be a new Global Security.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment."
If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the
terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and the basis for such credit and
will also deliver to the Trustee any Securities to be so delivered
which have not theretofore been delivered to the Trustee. Not less
than 30 days before each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103
and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner
stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series that are repayable before their
Stated Maturity at the option of the Holders shall be repaid in
accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Section 1302. Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any
series shall, unless otherwise specified by the terms of the
Securities of such series, be given by the Company not less than 45
nor more than 60 days prior to such Repayment Date, to the Trustee
and to each Holder of Securities of such series in accordance with
Sections 105 and 106, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are to be
surrendered for payment of the Repayment Price, which shall be
the office or agency of the Company in each Place of Payment,
and the date by which Securities must be so surrendered in
order to be repaid;
(4) a description of the procedure which a Holder must
follow to exercise a repayment right; and
(5) that exercise of the option to elect repayment is
irrevocable.
No failure of the Company to give the foregoing notice shall
limit any Holder's right to exercise a repayment right.
Section 1303. Deposit of Repayment Price.
On or prior to any Repayment Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the
Repayment Price of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities of
such series which are to be repaid on that date.
Section 1304. Securities Payable on Repayment Date.
The form of option to elect repayment having been delivered as
specified in the form of Security for such series as provided in
Section 201, the Securities so to be repaid shall, on the Repayment
Date, become due and payable at the Repayment Price applicable
thereto, and from and after such date (unless the Company shall
default in the payment of the Repayment Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of
any such Security for repayment in accordance with said notice,
such Security shall be paid by the Company at the Repayment Price,
together with accrued interest to the Repayment Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to such Repayment Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Date
according to their terms and the provisions of Section 307.
If any Security to be repaid shall not be so paid upon
surrender thereof for repayment, the principal shall, until paid,
bear interest from the Repayment Date at the rate prescribed in the
Security.
Section 1305. Securities Repaid in Part.
Any Security which by its terms may be repaid in part at the
option of the Holder and which is to be repaid only in part shall
be surrendered at any office or agency of the Company designated
for that purpose pursuant to Section 1002 (with, if the Company or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unrepaid portion of the principal of the
Security so surrendered. If a Global Security is so surrendered,
such new Security so issued shall be a new Global Security.
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
Section 1401. General.
If so provided in the terms of the Securities of any series
established in accordance with Section 301, the principal amount of
the Securities of such series shall be convertible into shares of
Common Stock in accordance with this Article Fourteen and the terms
of such series of Securities if such terms differ from this Article
Fourteen; provided, however, that if any of the terms by which any
such Security shall be convertible into Common Stock are set forth
in a supplemental indenture entered into with respect thereto
pursuant to Section 901(9) hereof, the terms of such supplemental
indenture shall govern.
Section 1402. Right to Convert.
Subject to and upon compliance with the provisions of this
Article, the Holder of any Security that is convertible into Common
Stock shall have the right, at such Holder's option, at any time on
or after the date of original issue of such Security or such other
date specified in the applicable Board Resolution delivered
pursuant to Section 301 and prior to the close of business on the
date set forth in such Board Resolution (or if such Security is
called for redemption, then in respect of such Security to and
including but not after the close of business on the date of
redemption unless the Company shall default in the payment due on
such date) to convert the principal amount of any such Security of
any authorized denomination, or, in the case of any Security to be
converted of a denomination greater than the minimum denomination
for Securities of the applicable series, any portion of such
principal which is an authorized denomination or an integral
multiple thereof, into that number of fully paid and nonassessable
shares of Common Stock obtained by dividing the principal amount of
such Security or portion thereof surrendered for conversion by the
Conversion Price therefor by surrender of the Security so to be
converted in whole or in part in the manner provided in Section
1403. Such conversion shall be effected by the Company in
accordance with the provisions of this Article and the terms of the
Securities, if such terms differ from this Article.
Section 1403. Manner of Exercise of Conversion Privilege;
Delivery of Common Stock; No Adjustment for
Interest or Dividends.
In order to effect a conversion, the holder of any Security to
be converted, in whole or in part, shall surrender such Security at
the office or agency maintained by the Company for such purpose, as
provided in Section 1002 and shall give written notice of
conversion to the Company at such office or agency that the Holder
elects to convert such Security or the portion thereof specified in
said notice. The notice shall state the name or names (with
address), and taxpayer identification number, in which the
certificate or certificates for shares of Common Stock which shall
be deliverable on such conversion shall be registered, and shall be
accompanied by payments in respect of transfer taxes, if required
pursuant to Section 1406. Each Security surrendered for conversion
shall, unless the shares of Common Stock deliverable on conversion
are to be issued in the same name as the registration of such
Security, be duly endorsed by or be accompanied by instruments of
transfer, in form satisfactory to the Company, duly executed by the
Holder or such Holder's duly authorized attorney, and by any
payment required pursuant to this Section 1403. As promptly as
practicable after the surrender of such Security and notice, as
aforesaid, the Company shall deliver or cause to be delivered at
such office or agency to such Holder, or on such Holder's written
order, a certificate or certificates for the number of full shares
of Common Stock deliverable upon the conversion of such Security or
portion thereof in accordance with the provisions of this Article
and a check or cash in respect of any fractional interest in
respect of a share of Common Stock arising upon such conversion as
provided in Section 1404. In case any Security of a denomination
greater than the minimum denomination for Securities of the
applicable series shall be surrendered for partial conversion, the
Company shall execute and register and the Trustee shall
authenticate and deliver to or upon the written order of the
Company and the Holder of the Security so surrendered, without
charge to such Holder, a new Security or Securities of the same
series in authorized denominations in an aggregate principal amount
equal to the unconverted portion of the surrendered Security. Each
conversion shall be deemed to have been effected as of the date on
which such Security shall have been surrendered (accompanied by the
funds, if any, required by the last paragraph of this Section) and
such notice received by the Company, as aforesaid, and the person
or persons in whose name or names any certificate or certificates
for shares of Common Stock shall be registrable upon such
conversion shall become on said date the Holder of record of the
shares represented thereby, provided, however, that any such
surrender on any date when the stock transfer books of the Company
shall be closed shall constitute the person in whose name the
certificates are to be registered as the record holder thereof for
all purposes on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Security
shall have been so surrendered.
Any Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record
Date for any Interest Payment Date to the opening of business on
such Interest Payment Date shall (unless such Security or portion
thereof being converted shall have been called for redemption or
submitted for repayment on a date during such period) be accompa-
nied by payment, in legal tender or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on
such Interest Payment Date on the principal amount being converted;
provided, however, that no such payment need be made if there shall
exist at the time of conversion a default in the payment of
interest on the applicable series of Securities. An amount equal
to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Security on such Regular Record
Date; provided, however, that if the Company shall default in the
payment of interest on such Interest Payment Date, such amount
shall be paid to the person who made such required payment. Except
as provided above in this Section, no adjustment shall be made for
interest accrued on any Security converted or for dividends on any
shares issued upon the conversion of such Security as provided in
this Article.
Section 1404. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing
fractional shares of Common Stock shall be delivered upon conver-
sion of Securities. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of full
shares of Common Stock which shall be deliverable upon conversion
shall be computed on the basis of the aggregate principal amount of
the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. Instead of any fraction of a
share of Common Stock which would otherwise be deliverable upon the
conversion of any Security, the Company shall pay to the Holder of
such Security an amount in cash (computed to the nearest cent, with
one-half cent being rounded upward) equal to the same fraction of
the closing price (determined in the manner provided in Section
1405(a)(v)) of the Common Stock on the Trading Day (as defined in
Section 1405(a)(v)) next preceding the date of conversion.
Section 1405. Conversion Price Adjustments; Effect of
Reclassification, Mergers, Consolidations and Sales
of Assets.
(a) The Conversion Price shall be adjusted from time to time
as follows:
(i) In case the Company shall (x) pay a dividend or make
a distribution on the Common Stock in shares of Common Stock,
(y) subdivide the outstanding Common Stock into a greater
number of shares or (z) combine the outstanding Common Stock
into a smaller number of shares, the Conversion Price shall be
adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive the
number of shares of Common Stock of the Company which such
holder would have owned or have been entitled to receive after
the happening of any of the events described above had such
Security been converted immediately prior to the record date
in the case of a dividend or the effective date in the case of
subdivision or combination. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after
the record date in the case of a dividend, except as provided
in subparagraph (vii) below, and shall become effective
immediately after the effective date in the case of a
subdivision or combination.
(ii) In case the Company shall issue rights or warrants
to all holders of shares of Common Stock entitling them (for
a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price
per share of Common Stock (as defined for purposes of this
subparagraph (ii) in subparagraph (v) below), the Conversion
Price in effect after the record date for the determination of
stockholders entitled to receive such rights or warrants shall
be determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of
shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered would
purchase at such current market price, and the denominator of
which shall be the number of shares of Common Stock
outstanding on the record date for issuance of such rights or
warrants plus the number of additional shares of Common Stock
receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights
or warrants are issued, and shall become effective immediate-
ly, except as provided in subparagraph (vii) below, after such
record date.
(iii) In case the Company shall distribute to all
holders of Common Stock any shares of capital stock of the
Company (other than Common Stock) or evidences of its
indebtedness or assets (excluding cash dividends or distribu-
tions paid from retained earnings of the Company or dividends
payable in Common Stock) or rights or warrants to subscribe
for or purchase any of its securities (excluding those rights
or warrants referred to in subparagraph (ii) above) (any of
the foregoing being hereinafter in this subparagraph (iii)
called the "Assets"), then, in each such case, the Conversion
Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the record date for determination of
stockholders entitled to receive such distribution by a
fraction the numerator of which shall be the current market
price per share (as defined for purposes of this subparagraph
(iii) in subparagraph (v) below) of the Common Stock at such
record date for determination of stockholders entitled to
receive such distribution less the then fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive) of the portion of the Assets so
distributed applicable to one share of Common Stock, and the
denominator of which shall be the current market price per
share (as defined in subparagraph (v) below) of the Common
Stock at such record date. Such adjustment shall become
effective immediately, except as provided in subparagraph
(vii) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(iv) If, pursuant to subparagraph (ii) or (iii) above,
the number of shares of Common Stock into which a Security is
convertible shall have been adjusted because the Company has
declared a dividend, or made a distribution, on the
outstanding shares of Common Stock in the form of any right or
warrant to purchase securities of the Company, or the Company
has issued any such right or warrant, then, upon the
expiration of any such unexercised right or unexercised
warrant, the Conversion Price shall forthwith be adjusted to
equal the Conversion Price that would have applied had such
right or warrant never been declared, distributed or issued.
(v) For the purpose of any computation under
subparagraphs (ii) or (iii) above, the current market price
per share of Common Stock on any date shall be deemed to be
the average of the daily closing prices of the Common Stock
for the shorter of (i) 30 consecutive Trading Days ending on
the last full Trading Day on the exchange or market specified
in the second following sentence prior to the Time of
Determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of
such rights or warrants or such distribution through such last
full Trading Day prior to the Time of Determination. The term
"Time of Determination" as used herein shall be the time and
date of the earlier of (x) the determination of stockholders
entitled to receive such rights, warrants, or distributions or
(y) the commencement of "ex-dividend" trading in the Common
Stock on the exchange or market specified in the following
sentence. The closing price for each day shall be the
reported last sales price, regular way, or, in case no sale
takes place on such day, the average of the reported closing
bid and asked prices, regular way, in either case as reported
on the New York Stock Exchange Composite Tape or, if the
Common Stock is not listed or admitted to trading on the New
York Stock Exchange at such time, on the principal national
securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the National Market
System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if the Common Stock
is not quoted on such National Market System, the average of
the closing bid and asked prices on such day in the over-the-
counter market as reported by NASDAQ or, if bid and asked
prices for the Common Stock on each such day shall not have
been reported through NASDAQ, the average of the bid and asked
prices for such date as furnished by any New York Stock
Exchange member firm regularly making a market in the Common
Stock selected for such purpose by the Company or, if no such
quotations are available, the fair market value of the Common
Stock as determined by a New York Stock Exchange member firm
regularly making a market in the Common Stock selected for
such purpose by the Company. As used herein, the term
"Trading Day" with respect to Common Stock means (x) if the
Common Stock is listed or admitted for trading on the New York
Stock Exchange or another national securities exchange, a day
on which the New York Stock Exchange or such other national
securities exchange, as the case may be, is open for business
or (y) if the Common Stock is quoted on the National Market
System of the NASDAQ, a day on which trades may be made on
such National Market System or (z) otherwise, any day other
than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(vi) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this subparagraph (vi) are
not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations
under this Section 1405(a) shall be made to the nearest cent
or to the nearest .01 of a share, as the case may be, with
one-half cent and .005 of a share, respectively, being rounded
upward. Anything in this Section 1405(a) to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Conversion Price, in addition to those
required by this Section 1405(a), as it in its discretion
shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights or
warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
(vii) In any case in which this Section 1405(a)
provides that an adjustment shall become effective immediately
after a record date for an event, the Company may defer until
the occurrence of such event (x) issuing to the holder of any
Security converted after such record date and before the
occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock
issuable upon such conversion before giving effect to such
adjustment and (y) paying to such holder any amount of cash in
lieu of any fractional share of Common Stock pursuant to
Section 1404.
(viii) Whenever the Conversion Price is adjusted as
herein provided, the Company shall file with the Trustee an
Officers' Certificate, setting forth the Conversion Price
after such adjustment and setting forth a brief statement of
the facts requiring such adjustment, which certificate shall
be conclusive evidence of the correctness of such adjustment;
provided, however, that the failure of the Company to file
such Officers' Certificate shall not affect the legality or
validity of any corporate action by the Company.
(ix) Whenever the Conversion Price for any series of
Securities is adjusted as provided in this Section 1405(a),
the Company shall cause to be mailed to each holder of
Securities of such series at its then registered address by
first-class mail, postage prepaid, a notice of such adjustment
of the Conversion Price setting forth such adjusted Conversion
Price and the effective date of such adjusted Conversion
Price; provided, however, that the failure of the Company to
give such notice shall not affect the legality or validity of
any corporate action by the Company.
(b)(i) Notwithstanding any other provision herein to the
contrary, if any of the following events occur, namely (x) any
reclassification or change of outstanding shares of Common Stock
(other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination of the Common Stock), (y) any consolida-
tion, merger or combination of the Company with or into another
corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common
Stock, or (z) any sale or conveyance of all or substantially all of
the assets of the Company to any other entity as a result of which
holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock, then appropriate
provision shall be made by supplemental indenture so that (A) the
holder of any outstanding Security that is convertible into Common
Stock shall have the right to convert such Security into the kind
and amount of the shares of stock and securities or other property
or assets (including cash) that would have been receivable upon
such reclassification, change, consolidation, merger, combination,
sale, or conveyance by a holder of the number of shares of Common
Stock issuable upon conversion of such Security immediately prior
to such reclassification, change, consolidation, merger,
combination, sale or conveyance and (B) the number of shares of any
such other stock or securities into which such Security shall
thereafter be convertible shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as
practicable to the terms of adjustment provided for in this
Section, and Sections 1402, 1403, 1404, 1406, 1407, 1408 and 1409
shall apply on like terms to any such other stock or securities.
(ii) In case of any reclassification or change of the Common
Stock (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation,
merger or combination of the Company with or into another
corporation or of the sale or conveyance of all or substantially
all of the assets of the Company, the Company shall cause to be
filed with the Trustee and to be mailed to each holder of
Securities that are convertible into shares of Common Stock at such
holder's registered address, the date on which such
reclassification, change, consolidation, merger, combination, sale
or conveyance is expected to become effective, and the date as of
which it is expected that holders of Common Stock shall be entitled
to exchange their Common Stock for stock, securities or other
property deliverable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance.
Section 1406. Taxes on Shares Issued.
The delivery of stock certificates upon conversions of
Securities shall be made without charge to the holder converting a
Security for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the delivery of stock
registered in any name other than of the holder of any Security
converted, and the Company shall not be required to deliver any
such stock certificate unless and until the person or persons
requesting the delivery thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
Section 1407. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which
may be delivered upon conversion of Securities of any series which
are convertible into Common Stock will upon delivery be fully paid
and nonassessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Securities hereunder
require registration with or approval of any governmental authority
under any Federal or state law before such shares may be validly
delivered upon conversion, the Company will in good faith and as
expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that it will, if permitted by
the rules of The New York Stock Exchange, Inc., list and keep
listed for so long as the Common Stock shall be so listed on such
exchange, upon official notice of issuance, all Common Stock
deliverable upon conversion of Securities of any series which are
convertible into Common Stock.
Section 1408. Responsibility of Trustee.
Neither the Trustee nor any conversion agent shall at any time
be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment
of the Conversion Price applicable to such Securities, or with
respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any conversion agent shall be accountable
with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Security;
and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the
Company to deliver any shares of Common Stock or stock certificates
or other securities or property or cash upon the surrender of any
Security for the purpose of conversion or for any failure of the
Company to comply with any of the covenants of the Company
contained in this Article Fourteen.
Section 1409. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and
keep available, free from pre-emptive rights, out of its authorized
but unissued Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all Outstanding
Securities of any series of Securities which are convertible into
Common Stock.
Section 1410. Other Conversions.
If so provided in a Board Resolution with respect to the
Securities of a series, the principal amount of the Securities of
such series shall be convertible into or exchangeable for a
principal amount of other securities of the Company (which other
securities may be issued under this Indenture or otherwise), and
the issuance of such securities upon any such conversion or
exchange shall be made in accordance with the terms of such Board
Resolution.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1501. Applicability of Article; Company's Option to
Effect
Defeasance or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or
both of (a) defeasance of the Securities of a series under Section
1502 or (b) covenant defeasance of the Securities of a series under
Section 1503, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article
Fifteen, shall be applicable to the Securities of such series, and
the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either
Section 1502 (if applicable) or Section 1503 (if applicable) be
applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article
Fifteen.
Section 1502. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to
this Section with respect to the Outstanding Securities of a
particular series, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding
Securities of such series on and after the date the conditions
precedent set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such
series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company and upon
Company Request, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities of such series to receive, solely from the
trust fund described in Section 1504 as more fully set forth in
such Section, payments of the principal of and any premium and
interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Section
304, 305, 306, 607, 1002 and 1003 and such obligations as shall be
ancillary thereto, (C) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Trustee hereunder
and (D) this Article Fifteen. Subject to compliance with this
Article Fifteen, the Company may exercise its option under this
Section 1502 notwithstanding the prior exercise of its option under
Section 1503 with respect to the Securities of such series.
Section 1503. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to
this Section with respect to the Outstanding Securities of a
particular series, the Company shall be released from its
obligations under Sections 801, 1008 and 1009 (and any other
covenant applicable to such Securities that is determined pursuant
to Section 301 to be subject to covenant defeasance under this
Section) and the occurrence of an event specified in Clause (4) of
Section 501 with respect to any of Sections 801, 1008 or 1009 (and
any other Event of Default applicable to such Securities that is
determined pursuant to Section 301 to be subject to covenant
defeasance under this Section) shall not be deemed to be an Event
of Default with respect to the Outstanding Securities of such
series on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or Clause
whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or Clause or by reason of any reference
in any such Section or Clause to any other provision herein or in
any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
Section 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application
of either Section 1502 or Section 1503 to the Outstanding
Securities of a particular series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to
comply with the provisions of this Article Fifteen applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof,
sufficient, without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereto delivered to the
Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of and any premium and interest
on the Outstanding Securities of such series on the maturity
of such principal, premium or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such
payments are due in accordance with the terms of this
Indenture and of such Securities. Before such a deposit, the
Company may make arrangements satisfactory to the Trustee for
the redemption of Securities at a future date or dates in
accordance with Article Eleven, which shall be given effect in
applying the foregoing. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal
of or interest on any such U.S. Government Obligation held by
such custodian for the account of the holder of such
depositary receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation
evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to the Securities of such series shall have occurred
and be continuing (A) on the date of such deposit or (B)
insofar as subsections 501(6) and (7) are concerned, at any
time during the period ending on the 91st day after the date
of such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to the
Company in respect of such deposit (it being understood that
the condition in this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 608 or for purposes
of the Trust Indenture Act with respect to any securities of
the Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940,
as amended.
(4) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound.
(5) In the case of an election under Section 1502, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of this Indenture there has been
a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(6) In the case of an election under Section 1503, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had
not occurred.
(7) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions
or limitations which may be imposed on the Company in
connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either
the defeasance under Section 1502 or the covenant defeasance
under Section 1503 (as the case may be) have been complied
with.
Section 1505. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying
trustee -- collectively, for purposes for this Section 1505, the
"Trustee") pursuant to Section 1504 in respect of the Outstanding
Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any
Paying Agent (but not including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of
principal, premium and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money
or U.S. Government Obligations deposited pursuant to Section 1504
or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as
provided in Section 1504 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant
defeasance.
Section 1506. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1502 or 1503 with respect to the
Securities of any series by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under
this Indenture and the Securities of such series shall be revived
and reinstated as though no deposit had occurred pursuant to this
Article Fifteen until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1502
or 1053; provided, however, that if the Company makes any payment
of the principal of or any premium or interest on any such Security
following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or the
Paying Agent.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1601. Immunity of Incorporators, Stockholders, Officers
and Directors.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or any
successor corporation, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by this Indenture
or in any of the Securities or implied therefrom; and that any and
all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or
in any of the Securities or implied therefrom are hereby expressly
waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of such Securities.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
[SEAL] LOWE'S COMPANIES, INC.
_______________________________
By: __________________________
Its:
___________________________
________________________
Attest:
___________________________
By:________________________
Its:_________________________
[SEAL] CHEMICAL BANK
______________________________
By:___________________________
Its:___________________________
Attest:
___________________________
By:________________________
Its:_________________________
State of North Carolina
SS:
County of Wilkes
On the ______ day of ____________, 1993, before me personally
came ______________ _________________________, to me known, who,
being by me duly sworn, did depose and say that he is
_______________________________ of LOWE'S COMPANIES, INC., one of
the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[SEAL] ______________________________
Notary Public
State of New York
SS:
County of New York
On the _______ day of _____________, 1993, before me
personally came ___________ __________________________, to me
known, who, being by me duly sworn, did depose and say that he is
____________________________ of CHEMICAL BANK, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporation's 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.
[SEAL] ______________________________
Notary Public
EXHIBIT 4.2
LOWE'S COMPANIES, INC.
AND
____________________, Trustee
Indenture
Dated as of __________ __, 199_
Subordinated Debt Securities
<PAGE>
Reconciliation and tie between
the Trust Indenture Act of 1939 and Indenture,
dated as of _________ __, 199_*
Trust Indenture
Act Section Indenture Section
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . .609
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . .609
(a)(3). . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . . 608, 610
(b) . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . .613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .613
Section 312(a) . . . . . . . . . . . . . . . . . . . .701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .703
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . .703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . .703
Section 314(a) . . . . . . . . . . . . . . . . . . . . .704, 1005
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(3). . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(f) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . .601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . .101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . .512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . .513
(a)(2). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .508
Section 317(a)(1). . . . . . . . . . . . . . . . . . . . . . .503
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . .504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . .107
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .107
_____________________
* This table shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . . . . . 1
Section 101. Definitions. . . . . . . . . . . . . . . . 1
Section 102. Compliance Certificates and Opinions . . . 8
Section 103. Form of Documents Delivered to Trustee . . 8
Section 104. Acts of Holders. . . . . . . . . . . . . . 9
Section 105. Notices, Etc., to Trustee and Company. . . 11
Section 106. Notice to Holders; Waiver. . . . . . . . . 11
Section 107. Conflict with Trust Indenture Act. . . . . 12
Section 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . 12
Section 109. Successors and Assigns . . . . . . . . . . 12
Section 110. Separability Clause. . . . . . . . . . . . 12
Section 111. Benefits of Indenture. . . . . . . . . . . 12
Section 112. Governing Law. . . . . . . . . . . . . . . 12
Section 113. Legal Holidays . . . . . . . . . . . . . . 13
ARTICLE TWO - SECURITY FORMS . . . . . . . . . . . . . . . . . 13
Section 201. Forms of Securities. . . . . . . . . . . . 13
Section 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . 14
Section 203. Securities in Global Form. . . . . . . . . 14
ARTICLE THREE - THE SECURITIES . . . . . . . . . . . . . . . . 14
Section 301. Amount Unlimited; Issuable in Series . . . 14
Section 302. Denominations. . . . . . . . . . . . . . . 16
Section 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . 16
Section 304. Temporary Securities . . . . . . . . . . . 18
Section 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . 19
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 21
Section 307. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . 22
Section 308. Persons Deemed Owners. . . . . . . . . . . 23
Section 309. Cancellation . . . . . . . . . . . . . . . 23
Section 310. Computation of Interest. . . . . . . . . . 24
ARTICLE FOUR - SATISFACTION AND DISCHARGE. . . . . . . . . . . 24
Section 401. Satisfaction and Discharge of Indenture. . 24
Section 402. Application of Trust Money . . . . . . . . 25
ARTICLE FIVE - REMEDIES. . . . . . . . . . . . . . . . . . . . 26
Section 501. Events of Default. . . . . . . . . . . . . 26
Section 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . 28
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 30
Section 504. Trustee May File Proofs of Claim . . . . . 31
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . 31
Section 506. Application of Money Collected . . . . . . 31
Section 507. Limitation on Suits. . . . . . . . . . . . 32
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . 33
Section 509. Restoration of Rights and Remedies . . . . 33
Section 510. Rights and Remedies Cumulative . . . . . . 33
Section 511. Delay or Omission Not Waiver . . . . . . . 33
Section 512. Control by Holders . . . . . . . . . . . . 34
Section 513. Waiver of Past Defaults. . . . . . . . . . 34
Section 514. Undertaking for Costs. . . . . . . . . . . 35
Section 515. Waiver of Stay or Extension Laws . . . . . 35
ARTICLE SIX - THE TRUSTEE. . . . . . . . . . . . . . . . . . . 35
Section 601. Certain Duties and Responsibilities. . . . 36
Section 602. Notice of Defaults . . . . . . . . . . . . 37
Section 603. Certain Rights of Trustee. . . . . . . . . 37
Section 604. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . 38
Section 605. May Hold Securities. . . . . . . . . . . . 38
Section 606. Money Held in Trust. . . . . . . . . . . . 39
Section 607. Compensation and Reimbursement . . . . . . 39
Section 608. Disqualification; Conflicting Interests. . 39
Section 609. Corporate Trustee Required; Eligibility. . 40
Section 610. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . 40
Section 611. Acceptance of Appointment by Successor . . 42
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 43
Section 613. Preferential Collection of Claims Against
Company. . . . . . . . . . . . . . . . . . 43
Section 614. Appointment of Authenticating Agent. . . . 43
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . 45
Section 702. Preservation of Information;
Communications to Holders. . . . . . . . . 45
Section 703. Reports by Trustee . . . . . . . . . . . . 46
Section 704. Reports by Company.. . . . . . . . . . . . 46
ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 801. Company May Consolidate, Etc., Only on
Certain Terms. . . . . . . . . . . . . . . 47
Section 802. Successor Substituted. . . . . . . . . . . 47
ARTICLE NINE - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 48
Section 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . 48
Section 902. Supplemental Indentures With Consent of
Holders. . . . . . . . . . . . . . . . . . 49
Section 903. Execution of Supplemental Indentures . . . 51
Section 904. Effect of Supplemental Indentures. . . . . 51
Section 905. Conformity with Trust Indenture Act. . . . 51
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . 51
Section 907. Notice of Supplemental Indentures. . . . . 51
Section 908. Subordination Unimpaired . . . . . . . . . 51
ARTICLE TEN - COVENANTS. . . . . . . . . . . . . . . . . . . . 52
Section 1001. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . . . 52
Section 1002. Maintenance of Office or Agency. . . . . . 52
Section 1003. Money for Securities Payments to Be Held
in Trust. . . . . . . . . . . . . . . . . 52
Section 1004. Corporate Existence. . . . . . . . . . . . 54
Section 1005. Statement as to Compliance . . . . . . . . 54
Section 1006. Usury Laws . . . . . . . . . . . . . . . . 55
Section 1007. Waiver of Certain Covenants. . . . . . . . 55
ARTICLE ELEVEN - REDEMPTION OF SECURITIES. . . . . . . . . . . 55
Section 1101. Applicability of Article . . . . . . . . . 55
Section 1102. Election to Redeem; Notice to Trustee. . . 55
Section 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . 56
Section 1104. Notice of Redemption . . . . . . . . . . . 56
Section 1105. Deposit of Redemption Price. . . . . . . . 57
Section 1106. Securities Payable on Redemption Date. . . 57
Section 1107. Securities Redeemed in Part. . . . . . . . 58
ARTICLE TWELVE - SINKING FUNDS . . . . . . . . . . . . . . . . 58
Section 1201. Applicability of Article . . . . . . . . . 58
Section 1202. Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . . 58
Section 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . 59
ARTICLE THIRTEEN - REPAYMENT OF SECURITIES AT OPTION OF
HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1301. Applicability of Article . . . . . . . . . 59
Section 1302. Notice of Repayment Date . . . . . . . . . 59
Section 1303. Deposit of Repayment Price . . . . . . . . 60
Section 1304. Securities Payable on Repayment Date . . . 60
Section 1305. Securities Repaid in Part. . . . . . . . . 60
ARTICLE FOURTEEN - SUBORDINATION OF SECURITIES . . . . . . . . 61
Section 1401. Securities Subordinate to Senior
Indebtedness. . . . . . . . . . . . . . . 61
Section 1402. Trustee and Holders of Securities May
Rely on Certificate of Liquidating Agent;
Trustee May Require Further Evidence as
to Ownership of Senior Indebtedness;
Trustee Not Fiduciary to Holders of
Senior Indebtedness. . . . . . . . . . . . 63
Section 1403. Payment Permitted If No Default. . . . . . 64
Section 1404. Trustee Not Charged with Knowledge of
Prohibition. . . . . . . . . . . . . . . . 64
Section 1405. Trustee to Effectuate Subordination. . . . 65
Section 1406. Rights of Trustee as Holder of Senior
Indebtedness . . . . . . . . . . . . . . . 65
Section 1407. Article Applicable to Paying Agents. . . . 65
Section 1408. Subordination Rights Not Impaired by Acts
or Omissions of the Company or Holders of
Senior Indebtedness. . . . . . . . . . . . 66
ARTICLE FIFTEEN - CONVERSION OF SECURITIES . . . . . . . . . . 66
Section 1501. General. . . . . . . . . . . . . . . . . . 66
Section 1502. Right to Convert . . . . . . . . . . . . . 66
Section 1503. Manner of Exercise of Conversion
Privilege; Delivery of Common Stock; No
Adjustment for Interest or Dividends . . . 67
Section 1504. Cash Payments in Lieu of Fractional
Shares. . . . . . . . . . . . . . . . . . 68
Section 1505. Conversion Price Adjustments; Effect of
Reclassification, Mergers, Consolidations
and Sales of Assets. . . . . . . . . . . . 68
Section 1506. Taxes on Shares Issued . . . . . . . . . . 72
Section 1507. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of
Common Stock . . . . . . . . . . . . . . . 73
Section 1508. Responsibility of Trustee. . . . . . . . . 73
Section 1509. Covenant to Reserve Shares . . . . . . . . 74
Section 1510. Other Conversions. . . . . . . . . . . . . 74
ARTICLE SIXTEEN - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS. . . . . . . . . . . . . . . . . . 74
Section 1601. Immunity of Incorporators, Stockholders,
Officers and Directors . . . . . . . . . . 74
<PAGE>
INDENTURE, dated as of __________ __, 199_, between LOWE'S
COMPANIES, INC., a corporation duly organized and existing under
the laws of the State of North Carolina (herein called the
"Company"), having its principal office at Highway 268 East, North
Wilkesboro, North Carolina 28656, and WACHOVIA BANK OF NORTH
CAROLINA, N.A., a corporation duly organized and existing under the
laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one
or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles, and,
except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted
at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or
other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the
purposes of this definition, "control", when used with respect to
any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper of general
circulation in the relevant area, printed in the English language
and customarily published on each Business Day therein.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board or any
director or directors and/or officer or officers of the Company to
whom that board or committee shall have duly delegated its
authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to
close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means any stock of any class of the Company
which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject
to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Conversion Price" means with respect to any series of
Securities which are convertible into Common Stock, the price per
share of Common Stock at which the Securities of such series are so
convertible as set forth in the Board Resolution with respect to
such series (or in any supplemental indenture entered into pursuant
to Section 901(8) with respect to such series), as the same may be
adjusted from time to time in accordance with Section 1505 (or such
supplemental indenture pursuant to Section 1501).
"Corporate Trust Office" means the office of the Trustee in
____________________, ____________________, at which at any
particular time its corporate trust business shall be principally
administered, which office at the date of execution of this
Indenture is located at ________________________________________.
"corporation" includes corporations, associations, companies
and business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of a Global Security, a
clearing agency registered under the Securities Exchange Act of
1934, as amended, or any successor thereto, which shall in either
case be designated by the Company pursuant to Section 301 or 305
until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities of
any such series shall mean the Depositary with respect to the
Securities of that series.
"Event of Default" has the meaning specified in Section 501.
"Global Security or Securities" means one or more fully
registered Securities in global form evidencing all or a part of a
series of Securities issued to the Depositary for such series or
its nominee or registered in the name of the Depositary or its
nominee.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by
Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or by repayment or otherwise.
"Officers' Certificate" means a certificate signed by at least
two officers of the Company, one signature being that of the
Chairman of the Board, the President or a Vice President, and the
other signature being that of the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption
money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company.
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (a) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable
as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, and
(b) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of
(and premium, if any) and interest on the Securities of that series
are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any stock of any class of the Company
which has a preference over Common Stock in respect of dividends or
of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is
not mandatorily redeemable or repayable, or redeemable or repayable
at the option of the Holder, otherwise than in shares of Common
Stock or Preferred Stock of another class or series or with the
proceeds of the sale of Common Stock or Preferred Stock.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such
repayment by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at
which it is to be repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee customarily performing corporate
trust functions.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any,
and interest on, and any other payment due pursuant to the terms
of, an instrument (including, without limitation of, fees,
expenses, collection expenses (including attorneys' fees), interest
yield amounts, post-petition interest (whether or not earned) and
taxes) creating, securing or evidencing any of the following,
whether outstanding on the date of the Indenture or thereafter
incurred or created: (a) all indebtedness of the Company for money
borrowed or constituting reimbursement obligations with respect to
letters of credit and interest or currency swap agreements
(including indebtedness secured by a mortgage, conditional sales
contract or other lien which is (i) given to secure all or a part
of the purchase price of property subject thereto, whether given to
the vendor of such property or to another, or (ii) existing on
property at the time of acquisition thereof); (b) all indebtedness
of the Company evidenced by notes, debentures, bonds or other
securities sold by the Company for money; (c) lease obligations
(including but not limited to capitalized lease obligations); (d)
all indebtedness of others of the kinds described in either of the
preceding clauses (a) or (b) and all lease obligations and
obligations of others of the kind described in the preceding clause
(c) assumed by or guaranteed in any manner by the Company or in
effect guaranteed by the Company through an agreement to purchase,
contingent or otherwise; and (e) all (whether initial or seriatim)
renewals, deferrals, increases, extensions or refundings of and
modifications to indebtedness of the kinds described in any of the
preceding clauses (a), (b) or (d) and all renewals or extensions of
leases of the kinds described in either of the preceding clauses
(c) or (d); unless, in the case of any particular indebtedness,
lease, renewal, extension or refunding, the instrument or lease
creating or evidencing the same or the assumption or guarantee of
the same expressly provides that such indebtedness, lease, renewal,
extension, deferral, increase, modification or refunding is not
superior in right of payment to the Securities or is expressly
subordinated by its terms in right of payment to all other
indebtedness of the Company (including the Securities).
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the
date specified in such Security as the fixed date on which the
principal or such installment of principal, premium, if any, or
interest on such Security is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly,
by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of
this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"United States" means the United States of America.
"Vice President", when used with respect to the Company, means
any vice president, whether or not designated by a number or a word
or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include:
(1) A statement that each individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the
matters upon which his certificate or opinion are based are
erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose
of determining the Holders of Securities of any series entitled to
give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or , in the case of any
such vote, prior to such vote, the record date for any such action
or vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to Section
701) prior to such first solicitation or vote, as the case may be.
With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of
Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the
relevant action.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any
particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice
given or action taken by a Holder or its agents with regard to
different parts of such principal amount pursuant to this paragraph
shall have the same effect as if given or taken by separate Holders
of each such different part.
(g) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 301 or pursuant to one or
more indentures supplemental hereto, a Holder, including a
Depositary that is the Holder of a Global Security, may make, give
or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global
Security may provide its proxy or proxies to the beneficial owners
of interests in any such Global Security through such Depositary's
standing instructions and customary practices.
(h) The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in
any Global Security held by a Depositary entitled under the
procedures of such Depositary to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall
be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date.
No such request, demand, authorization, direction, notice, consent,
waiver or other action shall be valid or effective if made, given
or taken more than 90 days after such record date.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention:
Corporate Trustee Administration, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument,
Attention: Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders. Any notice to a Holder which is mailed in the manner
herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives such notice. Where this
Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to give notice of any event to Holders by mail when
such notice is required to be given pursuant to any provision of
this Indenture, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
the duties imposed by any of Sections 310 through 317, inclusive,
of the Trust Indenture Act through the operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified
or shall be deemed to be so excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder, any Paying Agent, the Holders and
the holders of Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided
that this Section 111 shall not limit the rights of any Holder of
a Global Security to give any notice or take any action, or appoint
any agents, with regard to any part or different parts of the
principal amount of such Global Security pursuant to Section 104.
Section 112. Governing Law.
This Indenture and the Securities and the rights, duties,
standard of care and immunities of the Trustee in connection with
the administration of its trust hereunder shall be governed by the
laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date or at the Stated Maturity, provided that
no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking
fund payment date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms of Securities.
The Securities of each series shall be in such form or forms
(including global form) as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon
as may be required to comply with any law or with any rules made
pursuant thereto or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities. If
the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved or may be produced in any other manner permitted by the
rules of any securities exchange upon which the Securities may be
listed and (with respect to Global Securities of any Series) the
rules of the Depositary, all as determined by the officers
executing such Securities, as evidenced by their execution of such
Securities.
Section 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________, as Trustee
By..............................
Authorized Officer
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such
Security may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and
also may provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the
Trustee and in such manner as shall be specified in such Security.
Any instructions by the Company with respect to a Security in
global form, after its initial issuance, shall be in writing but
need not comply with Section 102.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. All
Securities of each series issued under this Indenture shall in all
respects be equally and ratably entitled to the benefits hereof
with respect to such series without preference, priority or
distinction on account of the actual time of the authentication and
delivery or Maturity of the Securities of such series. There shall
be established in or pursuant to a Board Resolution, and, to the
extent not set forth therein, set forth in an Officers'
Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series
from all other series of Securities);
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be
authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in
lieu of, other Securities of that series pursuant to
Section 304, 305, 306, 906, 1107, 1305 or 1503);
(3) the date or dates on which the principal and
premium, if any, of the Securities of the series is
payable;
(4) the rate or rates, or the method of
determination thereof, at which the Securities of the
series shall bear interest, if any, the date or dates
from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any
Interest Payment Date;
(5) if other than the Corporate Trust Office, the
place or places where the principal of (and premium, if
any) and interest on Securities of the series shall be
payable;
(6) the period or periods within which, the price
or prices at which and the terms and conditions upon
which Securities of the series may be redeemed, in whole
or in part, at the option of the Company;
(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to
any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section
502;
(10) if the Securities of the series shall be issued
in whole or in part in the form of a Global Security or
Securities, the Depositary for such Global Security or
Securities;
(11) any addition to or change in the Events of
Default which applies to any Securities of the series;
(12) any addition to or change in the covenants set
forth in Article Ten which applies to Securities of the
series;
(13) if the Securities of the series are convertible
into Common Stock, the Conversion Price therefor, the
period during which such Securities are convertible and
any terms and conditions for the conversion of such
Securities which differ from Article Fifteen; and
(14) any other terms of the series (which terms
shall not be inconsistent with the provisions of this
Indenture).
The Securities shall be subordinate and junior in right of
payment to Senior Indebtedness of the Company as provided in
Article Fourteen.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution and set forth in
such Officers' Certificate, to the extent applicable, or in any
such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the
Holders, for issuance of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Board Resolution or the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions
with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section ign Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such
offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, and the Trustee shall authenticate and deliver such
Securities upon Company Order. If all the Securities of any one
series are not to be originally issued at one time and if a Board
Resolution relating to such Securities shall so permit, such
Company Order may set forth procedures (acceptable to the Trustee)
for the issuance and authentication of such Securities.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section
201, that such form has been established in conformity with
the provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver
the Board Resolution or Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior
to the time of authentication of each Security of such series if
such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued
and such documents reasonably contemplate the issuance of all
Securities of such series.
Unless otherwise provided in the form of Security for any
series, each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this
Indenture.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in the form of one or
more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company
Order with respect to such series, authenticate and deliver one or
more Global Securities that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series having the same terms issued
and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: "Unless
and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary."
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations. Until so exchanged
the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at one of its offices or
agencies maintained pursuant to Section 1002 a register (the
register maintained in such office being herein sometimes referred
to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The
Person responsible for the maintenance of the Security Register is
referred to herein as the "Security Registrar." The Trustee is
hereby initially appointed Security Registrar for the purpose of
registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of
any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series (except
Global Securities) may be exchanged for other Securities of the
same series, of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company
and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 906, 1107, 1305 or 1503 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series
selected for redemption under Section 1103 and ending at the close
of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security
being redeemed in part.
Notwithstanding any other provision of this Section 305,
unless and until it is exchanged in whole or in part for Securities
in definitive registered form, a Global Security representing all
or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the
Depositary for the Securities of a series shall no longer be
registered or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to the
Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of
such condition, the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and
deliver Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange
for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of
one or more Global Securities shall no longer be represented by a
Global Security or Securities. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series
in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing
such series, in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with
respect to a series of Securities, the Depositary for such series
of Securities may surrender a Global Security for such series of
Securities in exchange in whole or in part for Securities of such
series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to the Person specified by such Depositary a
new Security or Securities of the same series, of any
authorized denomination as requested by such Person, in
an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and
the aggregate principal amount of Securities
authenticated and delivered pursuant to Clause (i) above.
Upon the exchange of a Global Security for Securities in
definitive registered form, in authorized denominations, such
Global Security shall be canceled by the Trustee. Securities in
definitive registered form issued in exchange for a Global Security
pursuant to this Section 305 shall be registered in such names and
in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall not be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on,
such instructions. The Trustee shall, at Company expense, deliver
such Securities to or as directed by the Persons in whose names
such Securities are so registered.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee,
together with such other security or indemnity as may be reasonably
required by the Trustee to save it harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such
Security, subject to satisfaction of the foregoing conditions.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security
which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest. The Company and the Trustee understand that interest on
any Global Security will be disbursed or credited by the Depositary
to the Persons having ownership thereof pursuant to a book entry or
other system maintained by the Depositary.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case,
as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the
Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
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 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee, except that if a Global Security
is so surrendered, the Company shall execute and the Trustee shall
authenticate and deliver to the Depositary for such Global
Security, without service charge, a new Global Security or
Securities in a denomination equal to and in exchange for the
portion of the Global Security so surrendered not to be paid,
redeemed, repaid or registered for transfer or exchange or for
credit. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in accordance
with its customary procedures and a certificate of disposition
shall be delivered to the Company, unless, by a Company Order, the
Company shall direct the canceled Securities be returned to it.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
Upon Company Request, this Indenture shall cease to be of
further effect with respect to the Securities of a particular
series (except as to any surviving rights to convert Securities
into Common Stock, or rights of registration of transfer or
exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture as to such Securities, when:
(1) either:
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year, under arrangements
satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for
the purpose sums sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption
Date, as the case may be; and
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such Securities;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Securities of a particular series, the
obligations of the Company to the Trustee under Section 607, the
obligations, if any, of the Trustee to any Authenticating Agent
under Section 614 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section,
the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, in each case with respect to such
Securities, shall survive.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements of the Company under this
Indenture with respect to any series of Securities, the obligations
of the Company to the Trustee under Section 607, the obligations of
the Trustee under Section 402 and the last paragraph of Section
1003 shall survive with respect to such series of Securities.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to
the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited
with the Trustee. All money deposited with the Trustee pursuant to
Section 401 (and held by it or any Paying Agent) for the payment of
Securities subsequently converted into Common Stock shall be
returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
Article Fourteen or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment, whether or not
prohibited by the provisions of Article Fourteen, of any
installment of interest upon any of the Securities of
that Series as and when the same shall become due and
payable, and continuance of such default for a period of
30 days; or
(2) default in the payment, whether or not
prohibited by the provisions of Article Fourteen, of the
principal of or premium, if any, on any of the Securities
of that series as and when the same shall become due and
payable either at maturity, upon redemption by the
Company pursuant to Article Eleven, by declaration or
otherwise; or
(3) default in the payment of any sinking fund
payment, as and when the same shall become due and
payable by the terms of the Securities of that series; or
(4) failure on the part of the Company to perform
in any material respect any covenant or breach of any
warranty of the Company contained in the Securities or in
this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the
benefit of other series of Securities) for a period of 60
days after the date on which written notice specifying
such failure, requiring the same to be remedied and
stating that it is a "Notice of Default" hereunder, shall
have been given to the Company by the Trustee by
registered mail, which the Trustee shall do upon receipt
of requests to do so by the Holders of at least 25% in
principal amount of Outstanding Securities, or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of Outstanding Securities; or
e b a default under any mortgage, indenture, or
instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for
money borrowed by the Company or any consolidated
Subsidiary, whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted
in such indebtedness, in an aggregate principal amount
exceeding $10 million, becoming or being declared due and
payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness
having been discharged, or such acceleration having been
rescinded or annulled, or there having been deposited in
trust a sum of money sufficient to discharge in full such
indebtedness, within a period of 30 days after there
shall have been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal
amount of the Securities, a written notice specifying
such default and requiring the Company to cause such
indebtedness to be discharged, to cause there to be
deposited in trust a sum sufficient to discharge in full
such indebtedness or to cause such acceleration to be
rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(6) a court having jurisdiction in the premises
shall have entered a decree or order for relief in
respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or for all or any
substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and such decree
or order shall have remained unstayed or in effect for a
period of 90 consecutive days; or
(7) the Company shall have commenced a voluntary
case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall have
consented to the entry of an order for relief in an
involuntary case under any such law, or shall have
consented to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or for
all or any substantial part of its property, or shall
have made an assignment for the benefit of creditors, or
shall have failed generally to pay its debts as they
become due or shall have taken any corporate action in
furtherance of any of the foregoing; or
(8) any other Event of Default provided with
respect to Securities of that series.
Upon receipt by the Trustee of any proposed Notice of Default
from any Holder with respect to Securities of a series all or part
of which is represented by a Global Security, a record date shall
be established for determining Holders of Outstanding Securities of
such series entitled to join in such proposed Notice of Default,
which record date shall be at the close of business on the day the
Trustee receives such proposed Notice of Default. The Holders on
such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such proposed Notice of
Default, whether or not such Holders remain Holders after such
record date; provided, that unless Holders of at least 25% in
principal amount of the Outstanding Securities of such series, or
their proxies, shall have joined in such proposed Notice of Default
prior to the day which is 90 days after such record date, such
proposed Notice of Default shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing
in this paragraph shall prevent a Holder, or a proxy of a Holder,
from giving (i) after expiration of such 90-day period, a new
proposed Notice of Default identical to a proposed Notice of
Default which has been canceled pursuant to the proviso to the
preceding sentence, or (ii) during any such 90-day period, an
additional proposed Notice of Default with respect to any new or
different fact or circumstance permitting the giving of a proposed
Notice of Default with respect to Securities of such series, in
either of which events a new record date shall be established
pursuant to the provisions of this Section 501. Any such proposed
Notice of Default shall be considered a Notice of Default hereunder
at such time, if any, that Holders of at least 25% in principal
amount of the Outstanding Securities shall have joined in such
proposed Notice of Default by giving timely notice to the Trustee
hereunder.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in
every such case, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the
terms thereof) of all of the Securities of that series to be due
and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all
Securities of that series,
(B) the principal of (and premium, if
any, on) any Securities of that series which
have become due otherwise than by such
declaration of acceleration and any interest
thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to
Securities of that series, other than the non-payment of
the principal of Securities of that series which have
become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Upon receipt by the Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, with respect
to Securities of a series all or part of which is represented by a
Global Security, a record date shall be established for determining
Holders of Outstanding Securities of such series entitled to join
in such notice, which record date shall be at the close of business
on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that
unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice
prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action
by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, (i) after expiration of such 90-day period, a new written
notice of declaration of acceleration or rescission and annulment
thereof, as the case may be, that is identical to a written notice
which has been canceled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional
written notice of declaration of acceleration with respect to
Securities of such series, or an additional written notice of
rescission and annulment of any declaration of acceleration with
respect to any other Event of Default with respect to Securities of
such series, in either of which events a new record date shall be
established pursuant to the provisions of this Section 502.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest
on any Security when such interest becomes due and
payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium, if
any) and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities and, in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may, but shall not be obligated to, institute a judicial
proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to file
and prove a claim for the whole amount of principal, premium and
interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in
order to have claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and to collect and receive any moneys or
other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the
Trustee under Section 607;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and
interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to
the amounts due and payable on such Securities for
principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same
as a court of competent jurisdiction may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount
of the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 307) interest on such Security on
the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption or repayment at the option of the Holder,
on the Redemption Date or the Repayment Date, as the case may be)
and (if the terms of such Security so provide) to have such
Security converted into Common Stock pursuant to Article Fifteen
and to institute suit for the enforcement of any such payment or
conversion, and such rights shall not be impaired without the
consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of at least a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct
the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such
series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, expose the
Trustee to personal liability or be unduly prejudicial to
Holders not joining therein, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Upon receipt by the Trustee of any such direction with respect
to Securities of a series all or part of which is represented by a
Global Security, a record date shall be established for determining
Holders of Outstanding Securities of such series entitled to join
in such direction, which record date shall be determined in
accordance with Section 104(e). The Holders on such record date,
or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders
remain Holders after such record date; provided, that unless
Holders of at least a majority in principal amount of the
outstanding Securities of such series, or their proxies, shall have
been joined in such direction prior to the day which is 90 days
after such record date, such direction shall automatically and
without further action by any Holder be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, (i) after expiration of such 90-day
period, a new direction identical to a direction which has been
canceled pursuant to the provisions to the preceding sentence or
(ii) during any such 90-day period a new direction contrary to or
different from such direction, in either of which events a new
record date shall be established pursuant to the provisions of this
Section 512.
Section 513. Waiver of Past Defaults.
By Act delivered to the Company and the Trustee, the Holders
of not less than a majority in principal amount of the Outstanding
Securities of any affected series may on behalf of the Holders of
all the Securities of such series waive any past default hereunder
with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive
any past default hereunder. If a record date is fixed, the Holders
on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to waive any default hereunder,
whether or not such Holders remain Holders after such record date;
provided, that unless such majority in principal amount shall have
been obtained prior to the date which is 90 days after such record
date, any such waiver previously given shall automatically and
without further action by any Holder be canceled and of no further
effect.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit
instituted by the Trustee, by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or by any Holder for the
enforcement of the payment of the principal of (or premium, if any)
or interest on any Security on or after the Stated Maturity
expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption
Date or Repayment Date, as the case may be, and (if the terms of
such Security so provide) to have such Security converted into
Common Stock pursuant to Article Fifteen).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision of this Indenture are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice
of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal, premium or
interest on any Security of such series or in the payment of any
sinking fund instalment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee
of the board of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice
is in the interests of the Holders of the Securities of such
series; and provided, further, that in the case of any default of
the character specified in Section 501(4) with respect to the
Securities of such series no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time or both would become, an Event
of Default.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to
have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of
the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
n a the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to
the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of Section 310 of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions
of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be
deemed to have a conflicting interest with respect to the
Securities of any series by virtue of being Trustee with respect to
the Securities of any particular series of Securities other than
that series or by virtue of being trustee under the Indenture dated
as of July [15], 1993, between the Company and the Trustee.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least
$50,000,000. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to any or all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to any or
all Securities and the appointment of a successor Trustee or
Trustees with respect to such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities
of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of that
or those series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has been a bona
fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
the Securities of any series to all Holders of Securities of such
series in the manner provided in Section 106. Each notice of
appointment shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its lien, if any, provided for
in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of Section 311 of the Trust
Indenture Act regarding the collection of such claims against the
Company (or any such other obligor). A Trustee that has resigned
or been removed shall be subject to and comply with said Section
311 to the extent required thereby.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities (which may be an
Affiliate of the Company) which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon
registration of transfer or partial redemption or repayment thereof
or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business and in good standing under the laws of
the United States of America, any State or the District of
Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of no less than
$50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent for any series of Securities may
resign at any time by giving written notice thereof to the Trustee
for such series and to the Company. The Trustee for any series of
Securities may at any time terminate the agency of an
Authenticating Agent for such series by giving written notice
thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee of such series may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail written
notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses
appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment thereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
Except with respect to an Authenticating Agent appointed at
the request of the Company, the Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for
its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payments, pursuant to the provisions of
Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series described therein
referred to in the within-mentioned Indenture.
WACHOVIA BANK OF NORTH CAROLINA,
N.A., as Trustee
By__________________________________________
As Authenticating Agent
By__________________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee for the Securities
of such Series
(a) semiannually, not more than 15 days after each
Regular Record Date relating to that series (or, if there
is no Regular Record Date relating to that series, on
June 30 and December 31), a list, in such form as such
Trustee may reasonably require, of the names and
addresses of the Holders of that series as of such date,
and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee is Security
Registrar with respect to Securities of a particular series no such
list shall be required with respect to the Securities of such
series.
Section 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of information as to
the names and addresses of the Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after [May 15] of each year commencing
with the year 1994, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act if and to
the extent and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents
or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission. Delivery of
such reports to the Trustee is for informational purposes only and
the Trustee's receipt of such reports shall not constitute
constructive notice of any information contained therein or
determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.
(a) The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall
not permit any Person to consolidate with or merge into the
Company, unless:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease
its properties and assets substantially as an entirety to
any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of
the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to
the Trustee the due and punctual payment of the principal
of and any premium and interest on all the Securities and
the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to
such transaction have been complied with.
(b) For purposes of this Section, any indebtedness that
becomes an obligation of the Company or any Subsidiary as a result
of such transaction shall be treated as having been incurred by the
Company or such Subsidiary at the time of such transaction.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this
Indenture and the Securities. In the case of a lease, the
predecessor Person shall not be released from its obligations to
pay the principal of, premium, if any, and interest on the
Securities. All Securities issued by the successor Person shall in
all respects have the same legal priority as the Securities
theretofore or thereafter authenticated, issued and delivered in
accordance with the terms of this Indenture.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such
covenants are expressly being included solely for the
benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit
of less than all series of Securities, stating that such
Events of Default are expressly being included solely for
the benefit of such series); or
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal and
with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more
series of Securities, provided that any such addition,
change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit
of such provision nor (B) modify the rights of the Holder
of any such Security with respect to such provision or
(ii) shall become effective only when there is no such
Security Outstanding; or
(6) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b);
or
(8) to add to or change any provisions of this
Indenture to such extent as shall be necessary to permit
or facilitate the issuance of Securities convertible into
other securities; or
(9) to effectuate the provisions of Section
1505(b); or
(10) to add or change or eliminate any provisions of
this Indenture as shall be necessary or desirable in
accordance with any amendments to the Trust Indenture
Act; or
(11) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or
inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions
arising under this Indenture, provided that such action
pursuant to this clause (11) shall not adversely affect
the interests of the Holders of Securities of any series
in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under
this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of principal of, premium, if any, or
interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, change the method of
determination of interest thereon, or reduce the amount
of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
502, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place
of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is
payable or impair the right of any Holders of Securities
of a Series entitled to the conversion rights set forth
in Article Fifteen to receive securities upon the
exercise of such conversion rights, or impair the right
to institute suit for the enforcement of any such payment
or delivery of Common Stock for Securities converted
pursuant to Article Fifteen on or after the Stated
Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be, or
in the case of such conversion, on or after the date of
conversion), or
(2) reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1007, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and
Section 1007, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and
901(7).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice to all Holders of such fact,
setting forth in general terms the substance of such supplemental
indenture, in the manner provided in Section 106. Any failure of
the Company to give such notice, or any defect therein, shall not
in any way impair or affect the validity of any such supplemental
indenture.
Section 908. Subordination Unimpaired.
No supplemental indenture executed pursuant to this Article
shall directly or indirectly modify the provisions of Article
Fourteen in any manner which might alter the subordination of the
Securities.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Securities
of that series in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment an office
or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of
transfer, conversion or exchange and where notices and demands to
or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company terminates the
appointment of a Paying Agent or Security Registrar or conversion
agent or otherwise shall fail to maintain any such required office
or agency, the Company shall use its reasonable best efforts to
appoint a successor Paying Agent or Security Registrar or
conversion agent reasonably acceptable to the Trustee. If the
Company fails to maintain a Paying Agent or Security Registrar or
conversion agent, the Trustee will act as such, and the Company
hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of
Payment for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before
each due date of the principal of (and premium, if any) or interest
on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify
the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due,
such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the
Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on
Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default
by the Company (or any other obligor upon the Securities
of that series) in the making of any payment of principal
(and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal
of (and premium, if any) or interest on any Security of any series
and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence and that of each Subsidiary and the
rights (charter and statutory) and franchises of the Company and
its Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right or franchise if in the judgment
of the Company it shall be necessary, advisable or in the interest
of the Company to discontinue the same.
Section 1005. Statement as to Compliance.
The Company will, so long as any Securities of any series are
outstanding, deliver to the Trustee:
(a) forthwith upon becoming aware of any default or defaults
in the performance of any covenant, agreement or condition
contained in this Indenture, an Officers' Certificate specifying
such default or defaults;
(b) within 90 days after the end of each fiscal year, a
written statement, which need not comply with Section 102, signed
by the Chairman of the Board, the President or a Vice President and
by the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company (one of whom shall be the
Company's principal executive officer, principal financial officer
or principal accounting officer), stating as to each signer
thereof, that
(1) a review of the activities of the Company
during such year and of performance under this Indenture
has been made under his supervision;
(2) to the best of his knowledge, based on such
review, (a) the Company has fulfilled all its obligations
and complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been a
default in the fulfillment of or compliance with any such
obligation, condition or covenant, specifying each such
default known to him and the nature and status thereof,
and (b) no event has occurred and is continuing which is,
or after notice or lapse of time or both would become, an
Event of Default or Default, or if such an event has
occurred and is continuing, specifying each such event
known to him and the nature and status thereof; and
(3) within five days after becoming aware of the
occurrence thereof, written notice of any acceleration
which, with the giving of notice and the lapse of time,
would be an Event of Default within the meaning of
Section 501(4).
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of
notice provided for herein.
Section 1006. Usury Laws.
The Company will not voluntarily claim, and will actively
resist any attempts to claim, the benefit of any usury laws against
any holder of the Securities of any series.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 1004 with
respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated in Section 301
for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities of any
series, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a
specified tenor are to be redeemed), the particular Securities to
be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, in a manner which
the Trustee deems fair and appropriate, which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of
such series of a denomination larger than the minimum authorized
denomination for Securities of that series. If the Company shall
so specify and identify the appropriate Securities, Securities
owned of record and beneficially by the Company or any Subsidiary
shall not be included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or
to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall, unless otherwise specified by the
terms of the Securities to be redeemed, be given not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed, in accordance with Section 106.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of
any series are to be redeemed (unless all the Securities
of such series of a specified tenor are to be redeemed),
the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of
the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption
Price will become due and payable upon each such Security
to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
(5) the place or places where such Securities are
to be surrendered for payment of the Redemption Price,
which shall be the office or agency of the Company in
each Place of Payment, and
(6) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of
the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to
be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any
premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the
Security so surrendered. If a Global Security is so surrendered,
such new Security so issued shall be a new Global Security.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment."
If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the
terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and the basis for such credit and
will also deliver to the Trustee any Securities to be so delivered
which have not theretofore been delivered to the Trustee. Not less
than 30 days before each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103
and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner
stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series that are repayable before their
Stated Maturity at the option of the Holders shall be repaid in
accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Section 1302. Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any
series shall, unless otherwise specified by the terms of the
Securities of such series, be given by the Company not less than 45
nor more than 60 days prior to such Repayment Date, to the Trustee
and to each Holder of Securities of such series in accordance with
Sections 105 and 106, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are to be
surrendered for payment of the Repayment Price, which shall be
the office or agency of the Company in each Place of Payment,
and the date by which Securities must be so surrendered in
order to be repaid;
(4) a description of the procedure which a Holder must
follow to exercise a repayment right; and
ime that exercise of the option to elect repayment is
irrevocable.
No failure of the Company to give the foregoing notice shall
limit any Holder's right to exercise a repayment right.
Section 1303. Deposit of Repayment Price.
On or prior to any Repayment Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the
Repayment Price of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities of
such series which are to be repaid on that date.
Section 1304. Securities Payable on Repayment Date.
The form of option to elect repayment having been delivered as
specified in the form of Security for such series as provided in
Section 201, the Securities so to be repaid shall, on the Repayment
Date, become due and payable at the Repayment Price applicable
thereto, and from and after such date (unless the Company shall
default in the payment of the Repayment Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of
any such Security for repayment in accordance with said notice,
such Security shall be paid by the Company at the Repayment Price,
together with accrued interest to the Repayment Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to such Repayment Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Date
according to their terms and the provisions of Section 307.
If any Security to be repaid shall not be so paid upon
surrender thereof for repayment, the principal shall, until paid,
bear interest from the Repayment Date at the rate prescribed in the
Security.
Section 1305. Securities Repaid in Part.
Any Security which by its terms may be repaid in part at the
option of the Holder and which is to be repaid only in part shall
be surrendered at any office or agency of the Company designated
for that purpose pursuant to Section 1002 (with, if the Company or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unrepaid portion of the principal of the
Security so surrendered. If a Global Security is so surrendered,
such new Security so issued shall be a new Global Security.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
Section 1401. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees that anything in this
Indenture or the Securities of any series to the contrary
notwithstanding, the indebtedness evidenced by the Securities of
each series is subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided herein, and each Holder
of Securities of each series, by his acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall
be bound by the provisions hereof. Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of
these subordination provisions irrespective of any amendment,
modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
The Securities and the securities issued under the Indenture
dated as of July 15, 1993, between the Company and Wachovia Bank of
North Carolina, N.A. shall rank pari passu.
In the event that the Company shall default in the payment of
any principal of (or premium, if any) or interest on any Senior
Indebtedness when the same becomes due and payable, whether at
maturity or at a date fixed for repayment or by declaration of
acceleration or otherwise, then, upon written notice of such
default to the Company by the holders of Senior Indebtedness or any
trustee therefor or representative thereof, unless and until such
default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of (or premium, if any) or
interest on any of the Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Securities.
In the event of
(a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or
other similar proceeding relating to the Company, its
creditors or its property,
(b) any proceeding for the liquidation, dissolution
or other winding up of the Company, voluntary or
involuntary, whether or not involving insolvency or
bankruptcy proceedings,
(c) any assignment by the Company for the benefit
of creditors, or
(d) any other marshalling of the assets of the
Company,
all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) shall first be paid
in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any of
the Securities on account thereof. Any payment or distribution,
whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by
a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under
any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Securities of any series shall be
paid or delivered directly to the holders of Senior Indebtedness in
accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereof
accruing after the commencement of any such proceedings) shall have
been paid in full. In the event of any such proceeding, after
payment in full of all sums owing with respect to Senior
Indebtedness, the Holders of the Securities, together with the
holders of any obligations of the Company ranking on a parity with
the Securities, shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on
account of unpaid principal of (and premium, if any) and interest
on the Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall
be made on account of any capital stock or any obligations of the
Company ranking junior to the Securities and such other
obligations.
In the event that, notwithstanding the foregoing, any payment
or distribution of any character, whether in cash, securities or
other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of all
Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), or any security shall be received by the Trustee or
any Holder in contravention of any of the terms hereof, such
payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Indebtedness at the time outstanding
in accordance with the priorities then existing among such holders
for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all such Senior Indebtedness
in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security,
each holder of Senior Indebtedness is hereby irrevocably authorized
to endorse or assign the same.
No present or future holder of any Senior Indebtedness shall
be prejudiced in the right to enforce subordination of the
indebtedness evidenced by the Securities by any act or failure to
act on the part of the Company. Nothing contained herein shall
impair, as between the Company and the Holders of Securities of
each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such
Securities or prevent the Trustee or the Holder from exercising all
rights, powers and remedies otherwise permitted by applicable law
or hereunder upon a Default or Event of Default hereunder, all
subject to the rights of the holders of the Senior Indebtedness to
receive cash, securities or other property otherwise payable or
deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash,
securities or other property equal to the amount of such Senior
Indebtedness then outstanding. Upon the payment in full of all
Senior Indebtedness, the Holders of Securities of each series shall
be subrogated to all rights of any holders of Senior Indebtedness
to receive any further payments or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the
Securities of such series shall have been paid in full, and such
payments or distributions received by such Holders, by reason of
such subrogation, of cash, securities or other property which
otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other
than the holders of Senior Indebtedness, on the one hand, and such
Holders, on the other hand, be deemed to be a payment by the
Company on account of Senior Indebtedness, and not on account of
the Securities of such series.
The provisions of this Section 1401 shall not impair any
right, interests, remedies or powers of any secured creditor of the
Company in respect of any security interest the creation of which
is not prohibited by the provisions of this Indenture.
The securing of any obligations of the Company, otherwise
ranking on a parity with the Securities or ranking junior to the
Securities, shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with
the Securities or ranking junior to the Securities.
Section 1402. Trustee and Holders of Securities May Rely on
Certificate of Liquidating Agent; Trustee May
Require Further Evidence as to Ownership of Senior
Indebtedness; Trustee Not Fiduciary to Holders of
Senior Indebtedness.
Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee and the Holders
shall be entitled to rely upon an order or decree made by any court
of competent jurisdiction in which such dissolution or winding up
or liquidation or reorganization or arrangement proceedings are
pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person
making such payment or distribution, delivered to the Trustee or to
the Holders, for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article Fourteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall be
entitled to rely upon a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee or
representative on behalf of such holder) as evidence that such
Person is a holder of such Senior Indebtedness (or is such a
trustee or representative). In the event that the Trustee
determines, in good faith, that further evidence is required with
respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payments or distributions
pursuant to this Article Fourteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such
Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Article Fourteen,
and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the
right of such Person to receive such payment. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and, subject to the provisions of Section 601,
the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall in good faith pay over or deliver to
Holders of Securities, the Company or any other Person moneys or
assets to which any holder of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
Section 1403. Payment Permitted If No Default.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture, or in any of the Securities, shall prevent (a) the
Company at any time, except during the pendency of any dissolution,
winding up, liquidation or reorganization proceedings referred to
in, or under the conditions described in, Section 1401, from making
payments of the principal of (or premium, if any) or interest on
the Securities, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to payments of the
principal of (or premium, if any) or interest on the Securities if
the Trustee or such Paying Agent, as the case may be, did not have
the written notice provided for in Section 1404 by the times
referred to therein of any event prohibiting the making of such
deposit or exchange, and the Trustee or any Paying Agent shall not
be affected by any notice to the contrary received by it on or
after such times.
Section 1404. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Fourteen or elsewhere in this
Indenture contained to the contrary notwithstanding, the Trustee
shall not at any time be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of money
to or by the Trustee and shall be entitled conclusively to assume
that no such facts exist and that no event specified in Section
1401 has happened, until the Trustee shall have received an
Officers' Certificate to that effect or notice in writing to that
effect signed by or on behalf of the holder or holders, or their
representatives, of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or holders or
representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding; provided,
however, that, if prior to the third Business Day preceding the
date upon which by the terms hereof any money becomes payable
(including, without limitation, the payment of either the principal
of or interest on any Security), or in the event of the execution
of an instrument pursuant to Section 401 acknowledging satisfaction
and discharge of this Indenture, then if prior to the second
Business Day preceding the date of such execution, the Trustee or
any Paying Agent shall not have received with respect to such money
the Officers' Certificate or notice provided for in this Section
1404, then, anything herein contained to the contrary
notwithstanding, the Trustee or such Paying Agent shall have full
power and authority to receive such money and apply the same to the
purpose for which they were received and shall not be affected by
the notice to the contrary which may be received by it on or after
such date. The Company shall give prompt written notice to the
Trustee and to the Paying Agent of any facts which would prohibit
the payment of money to or by the Trustee or any Paying Agent.
Section 1405. Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as between
such Holder and holders of Senior Indebtedness as provided in this
Article and appoints the Trustee its attorney-in-fact for any and
all such purposes.
Section 1406. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in
this Article with respect to any Senior Indebtedness which may at
the time be held by it, to the same extent as any other holder of
Senior Indebtedness; provided, however, that nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder; and provided, further, that nothing in this Article shall
apply to claims of, or payments to, the Trustee under or pursuant
to Section 607.
Section 1407. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in such
case (unless the context shall otherwise require) be construed as
extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if the Paying Agent were
named in this Article in addition to or in place of the Trustee;
provided, however, that Sections 1404 and 1406 shall not apply to
the Company or any Affiliate of the Company if the Company or such
Affiliate acts as Paying Agent.
Section 1408. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior
Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the
Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have
or be otherwise charged with. The holders of Senior Indebtedness
may, at any time or from time to time and in their absolute
discretion, change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any such Senior
Indebtedness, or amend or supplement any instrument pursuant to
which any such Senior Indebtedness is issued or by which it may be
secured, or release any security therefor, or exercise or refrain
from exercising any other of their rights under the Senior
Indebtedness, including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders of the
Securities or the Trustee and without affecting the obligations of
the Company, the Trustee or the Holders of the Securities under
this Article.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
Section 1501. General.
If so provided in the terms of the Securities of any series
established in accordance with Section 301, the principal amount of
the Securities of such series shall be convertible into shares of
Common Stock in accordance with this Article Fifteen and the terms
of such series of Securities if such terms differ from this Article
Fifteen; provided, however, that if any of the terms by which any
such Security shall be convertible into Common Stock are set forth
in a supplemental indenture entered into with respect thereto
pursuant to Section 901(8) hereof, the terms of such supplemental
indenture shall govern.
Section 1502. Right to Convert.
Subject to and upon compliance with the provisions of this
Article, the Holder of any Security that is convertible into Common
Stock shall have the right, at such Holder's option, at any time on
or after the date of original issue of such Security or such other
date specified in the applicable Board Resolution delivered
pursuant to Section 301 and prior to the close of business on the
date set forth in such Board Resolution (or if such Security is
called for redemption, then in respect of such Security to and
including but not after the close of business on the date of
redemption unless the Company shall default in the payment due on
such date) to convert the principal amount of any such Security of
any authorized denomination, or, in the case of any Security to be
converted of a denomination greater than the minimum denomination
for Securities of the applicable series, any portion of such
principal which is an authorized denomination or an integral
multiple thereof, into that number of fully paid and nonassessable
shares of Common Stock obtained by dividing the principal amount of
such Security or portion thereof surrendered for conversion by the
Conversion Price therefor by surrender of the Security so to be
converted in whole or in part in the manner provided in Section
1503. Such conversion shall be effected by the Company in
accordance with the provisions of this Article and the terms of the
Securities, if such terms differ from this Article.
Section 1503. Manner of Exercise of Conversion Privilege;
Delivery of Common Stock; No Adjustment for
Interest or Dividends.
In order to effect a conversion, the holder of any Security to
be converted, in whole or in part, shall surrender such Security at
the office or agency maintained by the Company for such purpose, as
provided in Section 1002 and shall give written notice of
conversion to the Company at such office or agency that the Holder
elects to convert such Security or the portion thereof specified in
said notice. The notice shall state the name or names (with
address), and taxpayer identification number, in which the
certificate or certificates for shares of Common Stock which shall
be deliverable on such conversion shall be registered, and shall be
accompanied by payments in respect of transfer taxes, if required
pursuant to Section 1506. Each Security surrendered for conversion
shall, unless the shares of Common Stock deliverable on conversion
are to be issued in the same name as the registration of such
Security, be duly endorsed by or be accompanied by instruments of
transfer, in form satisfactory to the Company, duly executed by the
Holder or such Holder's duly authorized attorney, and by any
payment required pursuant to this Section 1503. As promptly as
practicable after the surrender of such Security and notice, as
aforesaid, the Company shall deliver or cause to be delivered at
such office or agency to such Holder, or on such Holder's written
order, a certificate or certificates for the number of full shares
of Common Stock deliverable upon the conversion of such Security or
portion thereof in accordance with the provisions of this Article
and a check or cash in respect of any fractional interest in
respect of a share of Common Stock arising upon such conversion as
provided in Section 1504. In case any Security of a denomination
greater than the minimum denomination for Securities of the
applicable series shall be surrendered for partial conversion, the
Company shall execute and register and the Trustee shall
authenticate and deliver to or upon the written order of the
Company and the Holder of the Security so surrendered, without
charge to such Holder, a new Security or Securities of the same
series in authorized denominations in an aggregate principal amount
equal to the unconverted portion of the surrendered Security. Each
conversion shall be deemed to have been effected as of the date on
which such Security shall have been surrendered (accompanied by the
funds, if any, required by the last paragraph of this Section) and
such notice received by the Company, as aforesaid, and the person
or persons in whose name or names any certificate or certificates
for shares of Common Stock shall be registrable upon such
conversion shall become on said date the Holder of record of the
shares represented thereby, provided, however, that any such
surrender on any date when the stock transfer books of the Company
shall be closed shall constitute the person in whose name the
certificates are to be registered as the record holder thereof for
all purposes on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Security
shall have been so surrendered.
Any Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record
Date for any Interest Payment Date to the opening of business on
such Interest Payment Date shall (unless such Security or portion
thereof being converted shall have been called for redemption or
submitted for repayment on a date during such period) be accompa-
nied by payment, in legal tender or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on
such Interest Payment Date on the principal amount being converted;
provided, however, that no such payment need be made if there shall
exist at the time of conversion a default in the payment of
interest on the applicable series of Securities. An amount equal
to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Security on such Regular Record
Date; provided, however, that if the Company shall default in the
payment of interest on such Interest Payment Date, such amount
shall be paid to the person who made such required payment. Except
as provided above in this Section, no adjustment shall be made for
interest accrued on any Security converted or for dividends on any
shares issued upon the conversion of such Security as provided in
this Article.
Section 1504. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing
fractional shares of Common Stock shall be delivered upon conver-
sion of Securities. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of full
shares of Common Stock which shall be deliverable upon conversion
shall be computed on the basis of the aggregate principal amount of
the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. Instead of any fraction of a
share of Common Stock which would otherwise be deliverable upon the
conversion of any Security, the Company shall pay to the Holder of
such Security an amount in cash (computed to the nearest cent, with
one-half cent being rounded upward) equal to the same fraction of
the closing price (determined in the manner provided in Section
1505(a)(v)) of the Common Stock on the Trading Day (as defined in
Section 1505(a)(v)) next preceding the date of conversion.
Section 1505. Conversion Price Adjustments; Effect of
Reclassification, Mergers, Consolidations and Sales
of Assets.
(a) The Conversion Price shall be adjusted from time to time
as follows:
(i) In case the Company shall (x) pay a dividend or make
a distribution on the Common Stock in shares of Common Stock,
(y) subdivide the outstanding Common Stock into a greater
number of shares or (z) combine the outstanding Common Stock
into a smaller number of shares, the Conversion Price shall be
adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive the
number of shares of Common Stock of the Company which such
holder would have owned or have been entitled to receive after
the happening of any of the events described above had such
Security been converted immediately prior to the record date
in the case of a dividend or the effective date in the case of
subdivision or combination. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after
the record date in the case of a dividend, except as provided
in subparagraph (vii) below, and shall become effective
immediately after the effective date in the case of a
subdivision or combination.
(ii) In case the Company shall issue rights or warrants
to all holders of shares of Common Stock entitling them (for
a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price
per share of Common Stock (as defined for purposes of this
subparagraph (ii) in subparagraph (v) below), the Conversion
Price in effect after the record date for the determination of
stockholders entitled to receive such rights or warrants shall
be determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of
shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered would
purchase at such current market price, and the denominator of
which shall be the number of shares of Common Stock
outstanding on the record date for issuance of such rights or
warrants plus the number of additional shares of Common Stock
receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights
or warrants are issued, and shall become effective immediate-
ly, except as provided in subparagraph (vii) below, after such
record date.
(iii) In case the Company shall distribute to all
holders of Common Stock any shares of capital stock of the
Company (other than Common Stock) or evidences of its
indebtedness or assets (excluding cash dividends or distribu-
tions paid from retained earnings of the Company or dividends
payable in Common Stock) or rights or warrants to subscribe
for or purchase any of its securities (excluding those rights
or warrants referred to in subparagraph (ii) above) (any of
the foregoing being hereinafter in this subparagraph (iii)
called the "Assets"), then, in each such case, the Conversion
Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the record date for determination of
stockholders entitled to receive such distribution by a
fraction the numerator of which shall be the current market
price per share (as defined for purposes of this subparagraph
(iii) in subparagraph (v) below) of the Common Stock at such
record date for determination of stockholders entitled to
receive such distribution less the then fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive) of the portion of the Assets so
distributed applicable to one share of Common Stock, and the
denominator of which shall be the current market price per
share (as defined in subparagraph (v) below) of the Common
Stock at such record date. Such adjustment shall become
effective immediately, except as provided in subparagraph
(vii) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(iv) If, pursuant to subparagraph (ii) or (iii) above,
the number of shares of Common Stock into which a Security is
convertible shall have been adjusted because the Company has
declared a dividend, or made a distribution, on the
outstanding shares of Common Stock in the form of any right or
warrant to purchase securities of the Company, or the Company
has issued any such right or warrant, then, upon the
expiration of any such unexercised right or unexercised
warrant, the Conversion Price shall forthwith be adjusted to
equal the Conversion Price that would have applied had such
right or warrant never been declared, distributed or issued.
(v) For the purpose of any computation under
subparagraphs (ii) or (iii) above, the current market price
per share of Common Stock on any date shall be deemed to be
the average of the daily closing prices of the Common Stock
for the shorter of (i) 30 consecutive Trading Days ending on
the last full Trading Day on the exchange or market specified
in the second following sentence prior to the Time of
Determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of
such rights or warrants or such distribution through such last
full Trading Day prior to the Time of Determination. The term
"Time of Determination" as used herein shall be the time and
date of the earlier of (x) the determination of stockholders
entitled to receive such rights, warrants, or distributions or
(y) the commencement of "ex-dividend" trading in the Common
Stock on the exchange or market specified in the following
sentence. The closing price for each day shall be the
reported last sales price, regular way, or, in case no sale
takes place on such day, the average of the reported closing
bid and asked prices, regular way, in either case as reported
on the New York Stock Exchange Composite Tape or, if the
Common Stock is not listed or admitted to trading on the New
York Stock Exchange at such time, on the principal national
securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the National Market
System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if the Common Stock
is not quoted on such National Market System, the average of
the closing bid and asked prices on such day in the over-the-
counter market as reported by NASDAQ or, if bid and asked
prices for the Common Stock on each such day shall not have
been reported through NASDAQ, the average of the bid and asked
prices for such date as furnished by any New York Stock
Exchange member firm regularly making a market in the Common
Stock selected for such purpose by the Company or, if no such
quotations are available, the fair market value of the Common
Stock as determined by a New York Stock Exchange member firm
regularly making a market in the Common Stock selected for
such purpose by the Company. As used herein, the term
"Trading Day" with respect to Common Stock means (x) if the
Common Stock is listed or admitted for trading on the New York
Stock Exchange or another national securities exchange, a day
on which the New York Stock Exchange or such other national
securities exchange, as the case may be, is open for business
or (y) if the Common Stock is quoted on the National Market
System of the NASDAQ, a day on which trades may be made on
such National Market System or (z) otherwise, any day other
than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(vi) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this subparagraph (vi) are
not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations
under this Section 1505(a) shall be made to the nearest cent
or to the nearest .01 of a share, as the case may be, with
one-half cent and .005 of a share, respectively, being rounded
upward. Anything in this Section 1505(a) to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Conversion Price, in addition to those
required by this Section 1505(a), as it in its discretion
shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights or
warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
(vii) In any case in which this Section 1505(a)
provides that an adjustment shall become effective immediately
after a record date for an event, the Company may defer until
the occurrence of such event (x) issuing to the holder of any
Security converted after such record date and before the
occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock
issuable upon such conversion before giving effect to such
adjustment and (y) paying to such holder any amount of cash in
lieu of any fractional share of Common Stock pursuant to
Section 1504.
(viii) Whenever the Conversion Price is adjusted as
herein provided, the Company shall file with the Trustee an
Officers' Certificate, setting forth the Conversion Price
after such adjustment and setting forth a brief statement of
the facts requiring such adjustment, which certificate shall
be conclusive evidence of the correctness of such adjustment;
provided, however, that the failure of the Company to file
such Officers' Certificate shall not affect the legality or
validity of any corporate action by the Company.
(ix) Whenever the Conversion Price for any series of
Securities is adjusted as provided in this Section 1505(a),
the Company shall cause to be mailed to each holder of
Securities of such series at its then registered address by
first-class mail, postage prepaid, a notice of such adjustment
of the Conversion Price setting forth such adjusted Conversion
Price and the effective date of such adjusted Conversion
Price; provided, however, that the failure of the Company to
give such notice shall not affect the legality or validity of
any corporate action by the Company.
(b)(i) Notwithstanding any other provision herein to the
contrary, if any of the following events occur, namely (x) any
reclassification or change of outstanding shares of Common Stock
(other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination of the Common Stock), (y) any consolida-
tion, merger or combination of the Company with or into another
corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common
Stock, or (z) any sale or conveyance of all or substantially all of
the assets of the Company to any other entity as a result of which
holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock, then appropriate
provision shall be made by supplemental indenture so that (A) the
holder of any outstanding Security that is convertible into Common
Stock shall have the right to convert such Security into the kind
and amount of the shares of stock and securities or other property
or assets (including cash) that would have been receivable upon
such reclassification, change, consolidation, merger, combination,
sale, or conveyance by a holder of the number of shares of Common
Stock issuable upon conversion of such Security immediately prior
to such reclassification, change, consolidation, merger,
combination, sale or conveyance and (B) the number of shares of any
such other stock or securities into which such Security shall
thereafter be convertible shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as
practicable to the terms of adjustment provided for in this
Section, and Sections 1502, 1503, 1504, 1506, 1507, 1508 and 1509
shall apply on like terms to any such other stock or securities.
(ii) In case of any reclassification or change of the Common
Stock (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation,
merger or combination of the Company with or into another
corporation or of the sale or conveyance of all or substantially
all of the assets of the Company, the Company shall cause to be
filed with the Trustee and to be mailed to each holder of
Securities that are convertible into shares of Common Stock at such
holder's registered address, the date on which such
reclassification, change, consolidation, merger, combination, sale
or conveyance is expected to become effective, and the date as of
which it is expected that holders of Common Stock shall be entitled
to exchange their Common Stock for stock, securities or other
property deliverable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance.
Section 1506. Taxes on Shares Issued.
The delivery of stock certificates upon conversions of
Securities shall be made without charge to the holder converting a
Security for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the delivery of stock
registered in any name other than of the holder of any Security
converted, and the Company shall not be required to deliver any
such stock certificate unless and until the person or persons
requesting the delivery thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
Section 1507. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which
may be delivered upon conversion of Securities of any series which
are convertible into Common Stock will upon delivery be fully paid
and nonassessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Securities hereunder
require registration with or approval of any governmental authority
under any Federal or state law before such shares may be validly
delivered upon conversion, the Company will in good faith and as
expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that it will, if permitted by
the rules of The New York Stock Exchange, Inc., list and keep
listed for so long as the Common Stock shall be so listed on such
exchange, upon official notice of issuance, all Common Stock
deliverable upon conversion of Securities of any series which are
convertible into Common Stock.
Section 1508. Responsibility of Trustee.
Neither the Trustee nor any conversion agent shall at any time
be under any duty or responsibility to any holder of Securities to
determine whether any facts exist which may require any adjustment
of the Conversion Price applicable to such Securities, or with
respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any conversion agent shall be accountable
with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Security;
and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the
Company to deliver any shares of Common Stock or stock certificates
or other securities or property or cash upon the surrender of any
Security for the purpose of conversion or for any failure of the
Company to comply with any of the covenants of the Company
contained in this Article Fifteen.
Section 1509. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and
keep available, free from pre-emptive rights, out of its authorized
but unissued Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all Outstanding
Securities of any series of Securities which are convertible into
Common Stock.
Section 1510. Other Conversions.
If so provided in a Board Resolution with respect to the
Securities of a series, the principal amount of the Securities of
such series shall be convertible into or exchangeable for a
principal amount of other securities of the Company (which other
securities may be issued under this Indenture or otherwise), and
the issuance of such securities upon any such conversion or
exchange shall be made in accordance with the terms of such Board
Resolution.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1601. Immunity of Incorporators, Stockholders, Officers
and Directors.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or any
successor corporation, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by this Indenture
or in any of the Securities or implied therefrom; and that any and
all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or
in any of the Securities or implied therefrom are hereby expressly
waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of such Securities.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
[SEAL] LOWE'S COMPANIES, INC.
_______________________________
By: __________________________
Its:
___________________________
________________________
Attest:
___________________________
By:________________________
Its:_________________________
[SEAL] WACHOVIA BANK OF NORTH
CAROLINA, N.A.
______________________________
By:___________________________
Its:___________________________
Attest:
___________________________
By:________________________
Its:_________________________
State of North Carolina
SS:
County of Wilkes
On the ______ day of ____________, 1993, before me personally
came ______________ _________________________, to me known, who,
being by me duly sworn, did depose and say that he is
_______________________________ of LOWE'S COMPANIES, INC., one of
the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[SEAL] ______________________________
Notary Public
State of ____________________
SS:
County of ____________________
On the _______ day of _____________, 1993, before me
personally came ___________ __________________________, to me
known, who, being by me duly sworn, did depose and say that he is
____________________________ of WACHOVIA BANK OF NORTH CAROLINA,
N.A., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporation's
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.
[SEAL] ______________________________
Notary Public
EXHIBIT 5
Letterhead of Hunton & Williams
January 10, 1994
Lowe's Companies, Inc.
Highway 268 East
North Wilkesboro, North Carolina 28656-0001
Registration Statement on Form S-3
Relating to $500,000,000 Issue Amount
of Unallocated Securities
Ladies and Gentlemen:
We have acted as counsel to Lowe's Companies, Inc., a North Carolina
corporation (the "Company"), in connection with the registration by the
Company of (a) an aggregate of $500,000,000 of its (i) unsecured subordinated
debt securities and unsecured senior debt securities (the "Debt Securities"),
(ii) shares of its preferred stock (the "Preferred Stock"), and (iii) shares
of its common stock (the "Common Stock"), and (b) an indeterminate number of
(i) preferred depositary shares of the Company to be evidenced by depositary
receipts (the "Depositary Shares") and (ii) shares of Common Stock (the Debt
Securities, the Preferred Stock, the Common Stock and the Depositary Shares,
collectively, the "Securities"), as set forth in the Registration Statement
on Form S-3 (the "Registration Statement") that is being filed on the date
hereof with the Securities and Exchange Commission (the "Commission") by the
Company pursuant to the Securities Act of 1933, as amended. The Securities
are to be issued in one or more series and are to be sold from time to time
as set forth in the Registration Statement, the Prospectus contained therein
(the "Prospectus") and any amendments or supplements thereto.
In rendering this opinion, we have relied upon, among other things, our
examination of such records of the Company and certificates of its officers
and of public officials as we have deemed necessary.
Based upon the foregoing and the further qualifications stated below, we
are of the opinion that:
1. The Company is duly incorporated, validly existing and in good
standing under the laws of the State of North Carolina; and
2. When (a) the terms of any class or series of the Securities have been
authorized by appropriate corporate action of the Company and (b) the
Securities have been issued and sold upon the terms and conditions set forth
in the Registration Statement, the Prospectus and the applicable supplement
to the Prospectus, and with respect to the Debt Securities, such Debt
Securities have been duly executed, authenticated and delivered in accordance
with the applicable indenture, then (x) the Debt Securities will be validly
authorized and issued and binding obligations of the Company and (y) the
Preferred Stock and the Common Stock will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement and to the statement made in
reference to this firm under the caption "Legal Matters" in the Registration
Statement.
Very truly yours,
HUNTON & WILLIAMS
EXHIBIT 12
LOWE'S COMPANIES, INC.
RATIO OF EARNINGS TO FIXED CHARGES
(In Thousands)
<TABLE>
For the Quarter
Ended October 31, For the Year Ended January 31,
------------------- ---------------------------------------------------
1993 1992 1993 1992* 1991 1990 1989
------- ------- ------- ------ ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Income Before Income Taxes 159,320 107,378 125,892 4,951 100,251 108,796 105,604
Fixed Charges:
Interest Expense 15,810 13,658 17,588 18,795 21,818 20,191 22,774
1/3 Rental Expense 6,433 4,892 6,800 5,033 3,933 2,933 2,400
------- ------- ------- ------ ------ ------- -------
Earnings as Defined 181,563 125,928 150,280 28,779 126,002 131,920 130,778
Fixed Charges:
Interest Expense 15,810 13,658 17,588 18,795 21,818 20,191 22,774
Capitalized Interest 2,719 1,208 1,849 1,114 1,142 2,221 1,470
1/3 Rental Expense 6,433 4,892 6,800 5,033 3,933 2,933 2,400
------- ------- ------- ------ ------- ------- -------
Fixed Charges 24,962 19,758 26,237 24,942 26,893 25,345 26,544
Ratio of Earnings to Fixed Charges 7.27 6.37 5.73 1.15 4.69 5.20 4.91
</TABLE>
* Income Before Taxes for the year ended January 31, 1992 included the effect of
a one-time restucturing charge of $71.3 million. Excluding the effect of this
restructuring charge. Income Before Income Taxes would have been $76.2 and the
Ratio of Earnings to Fixed Charges would have been 4.01.
Exhibit 15
December 27, 1993
Lowe's Companies, Inc.
North Wilkesboro, North Carolina
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
financial information of Lowe's Companies, Inc. and subsidiaries for the
periods ended April 30, 1993 and 1992, July 31, 1993 and 1992, and October
31, 1993 and 1992, as indicated in our reports dated May 11, 1993, August
10, 1993, and November 11, 1993, respectively; because we did not perform an
audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which were included in your
Quarterly Report on Form 10-Q for the quarters ended April 30, 1993, July 31,
1993 and October 31, 1993 are being incorporated by reference in this
Registration Statement.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
DELOITTE & TOUCHE
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Lowe's Companies, Inc. on Form S-3 of our reports dated February 19,
1993, appearing in and incorporated by reference in the Annual Report on Form
10-K of Lowe's Companies, Inc. for the year ended January 31, 1993, and to
the reference to us under the heading ``Experts'' in the Prospectus, which is
part of this Registration Statement.
DELOITTE & TOUCHE
Charlotte, North Carolina
December 27, 1993
EXHIBIT 25.1
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
Lowe's Companies, Inc.
(Exact name of obligor as specified in its charter)
North Carolina 56-0578072
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.
P. O. Box 1111
North Wilkesboro, N.C. 28656
(Address of principal executive offices) (Zip Code)
_____________________________________________
Senior Debt Securities
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
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. New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551 and Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(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.
None.
<PAGE>
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, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010, which
is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-46892, which is
incorporated by reference).
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference).
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.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws
of the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 6th day of December, 1993.
CHEMICAL BANK
By G. John Kirsch
Assistant Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1993, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 5,291
Interest-bearing balances ......................... 4,658
Securities ............................................ 20,620
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 IBF's:
Federal funds sold ................................ 1,706
Securities purchased under agreements to resell ... 434
Loans and lease financing receivables:
Loans and leases, net of unearned income $63,249
Less: Allowance for loan and lease losses 2,197
Less: Allocated transfer risk reserve ... 181
-------
Loans and leases, net of unearned income,
allowance, and reserve ............................ 60,871
Assets held in trading accounts ....................... 6,747
Premises and fixed assets (including capitalized
leases)............................................ 1,132
Other real estate owned ............................... 786
Investments in unconsolidated subsidiaries and
associated companies............................... 116
Customer's liability to this bank on acceptance
outstanding ....................................... 1,231
Intangible assets ..................................... 504
Other assets .......................................... 6,894
TOTAL ASSETS .......................................... $110,990
=========
LIABILITIES
Deposits
In domestic offices ................................ $ 50,535
Noninterest-bearing .........................$17,241
Interest-bearing ............................ 33,294
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 23,545
Noninterest-bearing .........................$ 136
Interest-bearing ............................ 23,409
-------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 9,006
Securities sold under agreements to repurchase ..... 685
Demand notes issued to the U.S. Treasury .............. 1,502
Other Borrowed money .................................. 8,152
Mortgage indebtedness and obligations under capitalized
leases ............................................. 18
Bank's liability on acceptances executed and outstanding 1,249
Subordinated notes and debentures ..................... 3,350
Other liabilities ..................................... 5,267
TOTAL LIABILITIES ..................................... 103,309
EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,501
Undivided profits and capital reserves ................ 2,565
Cumulative foreign currency translation adjustments ... (5)
TOTAL EQUITY CAPITAL .................................. 7,681
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $110,990
========
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition is true and correct to the best of my knowledge
and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We
declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in confor-
mance with the instructions and is true and correct.
JOHN F. McGILLICUDDY )
WALTER V. SHIPLEY )DIRECTORS
EDWARD D. MILLER )
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
Form T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
______________
Wachovia Bank of North Carolina, N.A.
(Exact name of trustee as specified in its charter)
56-0927594
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
301 N. Main St.,
Winston-Salem, N.C. 27102
(address of trustee's principal executive offices) (Zip Code)
______________
Lowe's Companies, Inc.
(Exact name of obligor as specified in its charter)
North Carolina 56-0578072
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
P. O. Box 1111
North Wilkesboro, North Carolina 28656
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
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.
i. Comptroller of the Currency, Administrator of National Banks,
Southeastern District Office, Atlanta, Georgia
ii. Federal Reserve Bank of Richmond, 5th District, Richmond,
Virginia (Board of Governors of the Federal Reserve System)
iii. Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of
the trustee, describe each such affiliation.
None
3. Defaults by Obligor
State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
None
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 such default.
None
The trustee is not a trustee under another such indenture or with
respect to another such series with respect to which there has been
a default.
None
4. 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
5. List of Exhibits
Exhibit T-1 A copy of the Articles of Association of Wachovia
Bank of North Carolina, N.A. (formerly Wachovia Bank
and Trust Company, N.A.) filed with the Comptroller
of the Currency, September 20, 1968, as amended to
date.
Exhibit T-2 A copy of the By-laws of Wachovia Bank of North
Carolina, N.A., as amended to date.
Exhibit T-3 The consent of the trustee required by Section
321(b) of the Trust Indenture Act of 1939, as
amended.
Exhibit T-4 A copy of the latest report of the condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE>
NOTE
Note 1: All the shares of Wachovia Bank of North Carolina, N.A.
stock are held by Wachovia Corporation. Wachovia Bank of North
Carolina, N.A. has outstanding 10,272,014 shares of common stock, $5 par
value. Wachovia Corporation has outstanding 172,343,134 shares of
common stock, $5 par value.
In answering any item in this statement of eligibility and
qualification which relates to matters peculiarly within the knowledge
of the obligor, or its directors or officers, or an underwriter for the
obligor, the undersigned, Wachovia Bank of North Carolina, N.A., has
relied upon information furnished to it by the obligor and will rely on
information furnished by such underwriter.
__________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
Wachovia Bank of North Carolina, N.A., a corporation organized and
existing under the laws of the United States of America, has caused this
statement of eligibility and qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Winston-
Salem, North Carolina, N.A. on the 8th day December, 1993.
Wachovia Bank of North Carolina, N.A.
(Trustee)
By: Sandi M. Turner
Vice President
<PAGE>
EXHIBIT T-1
WACHOVIA BANK AND TRUST COMPANY, N.A.
CHARTER NO. 15673
-------
ARTICLES OF ASSOCIATION
-----------------------
For the purpose of organizing an Association to carry on the business
of banking under the laws of the United States, the undersigned do enter into
the following Articles of Association.
FIRST. The title of this Association shall be Wachovia Bank and Trust
Company, N.A.
SECOND. The main offices of the Association shall be in Winston-Salem,
County of Forsyth, State of North Carolina. The general business of the
Association shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not
less than five nor more than twenty-five shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined
from time to time by resolution of a majority of the full Board of Directors
or by resolution of the shareholders at any annual or special meeting
thereof. Unless otherwise provided by the laws of the United States, any
vacancy in the Board of Director for any reason, including an increase in the
number thereof, may be filled by action of the Board of Directors.
The Board of Directors, by the vote of a majority of the full board,
may, between annual meetings of shareholders, within the maximum limitations,
increase the membership of the board by not more than four members and by
like vote may appoint qualified persons to fill the vacancies created
thereby.
FOURTH. The annual meeting of the shareholders for the election of
Directors and the transaction of whatever other business may be brought
before said meeting shall be held at the main office or such other place as
the Board of Directors may designate, on the day of each year specified
therefor in the bylaws, but if no election is held on that day, it may be
held on any subsequent day according to the provisions of law; and all
elections shall be held according to the provisions of the bylaws or
according to the provisions of law; and all elections prescribed by the
bylaws.
FIFTH. The authorized amount of capital stock of this Association
shall be six million (6,000,000) shares of common stock of the par value of
Five Dollars ($5.00) each; but said capital stock may be increased or
decreased from time to time in accordance with the provisions of the laws of
the United States.
No holder of shares of the capital stock of any class of the
Association shall have any pre-emptive or preferential right of subscription
to any shares of any class of stock of the Association, whether now or
hereafter authorized, or to any obligations convertible into stock of the
Association, issued or sold, nor any right of subscription to any thereof
other than such, if any, as the Board of Directors, in its discretion, may
from time to time determine and at such price as the Board of Directors may
from time to time fix.
SIXTH. The Board of Directors shall appoint one of its members
President of this Association, who shall be Chairman of the Board unless
otherwise provided in the bylaws or unless the Board appoints another
director to be the Chairman. The Board of Directors shall have the power to
appoint one or more Vice Presidents; and to appoint a Cashier and such other
officers and employees as may be required to transact the business of this
Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of the Association; to fix the salaries to be paid to
them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage and administer the business and affairs
of the Association; to make all bylaws that it may be lawful for them to
make; and generally to do and perform all acts that it may be legal for a
Board of Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of
Winston-Salem, North Carolina, without the approval of the shareholders but
subject to the approval of the Comptroller of the Currency; and shall have
the power to establish new branches or change the location of any branch or
branches of the Association to any other location, without the approval of
the shareholders but subject to the approval of the Comptroller of the
Currency.
EIGHTH. The corporate existence of this Association shall continue
until terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association or its Executive
Committee, the President, or any three or more shareholders owning in the
aggregate, not less than 25 per cent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise
provided by the laws of the United States, a notice of the time and place of
every annual meeting of the shareholders and a notice of the time, place and
purpose of every special meeting of the shareholders shall be given by first
class mail, postage prepaid, to each shareholder who is shown by the books of
the Association to be a shareholder 20 days prior to the date of the meeting,
and such notice shall be mailed to each such shareholder not less than 10
days before the date of the meeting at his address as shown upon the books of
this Association.
TENTH. Any person, his heirs, executors, or administrators may be
indemnified or reimbursed by the Association for all liability and reasonable
expenses actually incurred in connection with any action, suit, or
proceeding, civil or criminal, to which he or they shall be made a party by
reason of his being or having been a director, officer, or employee of the
Association or of any firm, corporation, or organization which he served in
any such capacity at the request of the Association: Provided, however, that
no person shall be so indemnified or reimbursed in relation to any matter in
such action, suit, or proceeding as to which he shall finally be adjusted to
have been guilty of or liable for gross negligence, wilful misconduct or
criminal acts in the performance of his duties to the Association: And
provided further, that no person shall be so indemnified or reimbursed in
relation to any matter in such action, suit, or proceeding which has been
made the subject of a compromise settlement except with the approval of a
court of competent jurisdiction, or the holders of record of a majority of
the outstanding shares of the Association, or the Board of Directors, acting
by vote of directors not parties to the same or substantially the same
action, suit, or proceeding, constituting a majority of the wholenumber of
directors. The foregoing right of indemnification or reimbursement shall not
be exclusive of other rights to which such person, his heirs, executors, or
administrators, may be entitled as a matter of law.
The Association may, upon the affirmative vote of a majority of its
Board
of Directors, purchase insurance for the purpose of indemnifying its
directors,
officers and other employees to the extent that such indemnification is
allowed
in the preceding paragraph. Such insurance may, but need not, be for the
benefit of all directors, officers, or employees.
ELEVENTH. These Articles of Association may be amended at any regular
or special meeting of the shareholders by the affirmative vote of the holders
of a majority of the stock of this Association, unless the vote of the
holders of a greater amount of stock is required by law, and in that case by
the vote of the holders of such greater amount.
IN WITNESS WHEREOF, we have hereunto set our hands this 20th day of
September, 1968.
/s/ John F. Watlington, Jr. /s/ Archie K. Davis
- ------------------------------ ------------------------------
John F. Watlington, Jr. Archie K. Davis
2025 Buena Vista Road 2828 Forest Drive
Winston-Salem, N. C. Winston-Salem, N. C.
/s/ J. H. Styers /s/ E. T. Shipley
- ------------------------------ ------------------------------
J. H. Styers E. T. Shipley
360 Lynn Avenue 987 Wellington Road
Winston-Salem, N. C. Winston-Salem, N. C.
/s/ James K. Glenn /s/ Albert L. Butler, Jr.
- ------------------------------ ------------------------------
James K. Glenn Albert L. Butler, Jr.
2403 Reynolds Road 2850 Galsworthy Drive
Winston-Salem, N. C. Winston-Salem, N. C.
)
FORSYTH COUNTY )
THIS IS TO CERTIFY that on the 20th day of September, 1968, before me,
a Notary Public, personally appeared John F. Watlington, Jr., Archie K.
Davis, J. H. Styers, E. T. Shipley, James K. Glenn, and Albert L. Butler,
Jr., who I am satisfied are the persons named in and who executed the
foregoing Articles of Association; and I having first made known to them the
contents thereof, they did each acknowledge that they signed and delivered
the same as their voluntary act and deed for the uses and purposes therein
expressed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and notarial seal,
this 20th day of September, 1968.
---------------------------------
Notary Public
My commission expires:
My Commission Expires March 23, 1969
SECRETARY'S CERTIFICATE
1. I hereby certify that I am the Assistant Secretary of Wachovia Bank
and Trust Company, N. A., duly appointed and serving in accordance with the
bylaws of said Bank.
2. I further certify that at a duly called and convened meeting of
shareholders of Wachovia Bank and Trust Company, N. A., held on the 28th day
of July, 1970, the following resolution was duly adopted by the vote of the
holders of two-thirds of the outstanding shares of said Bank entitled to vote
thereon:
RESOLVED, that the first sentence of Article FIFTH of the Articles
of Association of Wachovia Bank and Trust Company, N. A., is hereby
amended to read as follows:
FIFTH. The authorized capital stock of this Association shall
be twelve million (12,000,000) shares of common stock of the
par value of Five Dollars ($5.00) each; but the capital stock
may be increased or decreased from time to time in accordance
with the provisions of the laws of the United States.
RESOLVED FURTHER, that, effective as of July 31, 1970, the common
stock of this Bank be increased $25,320,035 by the issuance of a
stock dividend, thus increasing such stock to $50,640,070, which
shall be divided into 10,128,014 shares of the par value of $5.00
each; and that the shareholders of the Bank, of record on the 18th
day of June, 1970, be entitled to share in such stock dividend in
proportion to their respective holdings of common stock of the Bank
on that date.
RESOLVED FURTHER, that 1,871,986 shares of the $5.00 par value
common stock of the Bank which will remain unissued after giving
effect to the one hundred percent (100%) stock dividend herein
authorized, be established as authorized but unissued shares of the
$5.00 par value common stock of the Bank; issuable as shall be
determined from time to time by the Board of Directors, subject to
the conditions of approval as may be imposed by the Comptroller of
the Currency or his authorized representative.
RESOLVED FURTHER, that there shall be transferred from the surplus
account of the Bank to the capital stock account of the Bank an
amount equal to the aggregate par value of the shares of stock
issued pursuant to this resolution.
The foregoing resolution is presently in full force and effect and
has not been revoked or rescinded as of the date hereof.
In witness hereof I have hereupon set the seal of Wachovia Bank and
Trust Company, N. A., this 28th day of July, 1970.
/s/ Clyde A. Wootton
Clyde A. Wootton, Assistant Secretary
(Seal)
1. I hereby certify that I am the Secretary of Wachovia Bank and Trust
Company, N.A., duly appointed and serving in accordance with the bylaws of
said Bank.
2. I further certify that at a duly called and convened meeting of
shareholders of Wachovia Bank and Trust Company, N.A., held on the 15th day
of April, 1988, the following resolution was duly adopted by the vote of the
holder of all of the outstanding shares of said Bank entitled to vote
thereon:
RESOLVED, that the Articles of Association of Wachovia Bank and Trust
Company, N.A. are hereby amended by deleting the existing Article Tenth in
its entirety and substituting therefor a new Article Tenth reading as
follows:
TENTH. Any person, his or her heirs, executors, or administrators
may be indemnified or reimbursed by the Association for all liability and
reasonable expense actually incurred in connection with any action, suit,
or proceeding, civil or criminal, to which such person or persons shall
be made a party by reason of being or having been a director, officer, or
employee of the Association or of any firm, corporation, or organization
which any such person served in any such capacity at the request of the
Association: Provided, however, that no person shall be so indemnified
or reimbursed in relation to any administrative proceeding or action
instituted by an appropriate bank regulatory agency; which proceeding or
action results in a final order assessing civil money penalties or
requiring affirmative action by an individual or individuals in the form
of payments to the Association. The foregoing right of indemnification
or reimbursement shall not be exclusive of other rights to which such
person, his or her heirs, executors, or administrators, may be entitled
as a matter of law.
The Association may, upon the affirmative vote of a majority of its
Board of Directors, purchase insurance for the purpose of indemnifying
its directors, officers and other employees to the extent that such
indemnification is allowed by applicable law or regulation: Provided,
however, that no person shall be so indemnified or reimbursed in relation
to any administrative proceeding or action instituted by an appropriate
bank regulatory agency which proceeding or action results in a formal
order assessing civil money penalties against an Association director or
employee. Such insurance may, but need not, be for the benefit of all
directors, officers, or employees.
To the full extent from time to time permitted by North Carolina
law with respect to North Carolina business corporations, and subject to
the laws and regulations applicable to national banking associations, no
person who is serving or who has served as a director of the Association
shall be personally liable in any action for monetary damages for breach
of his or her duty as a director, whether such action is brought by or in
the rights of the Association or otherwise. Neither the amendment or
repeal of this Article, nor the adoption of any provision of these
Articles of of action, suit or claim which but for this Article would
have accrued or arisen, prior to such amendment, repeal or adoption.
The foregoing resolution is presently in full force and effect and has
not been revoked or rescinded as of the date hereof.
In witness hereof I have hereupon set the seal of Wachovia Bank and
Trust Company, N. A., this 17th day of May, 1991.
/s/ James G. Vanderberry
James G. Vanderberry, Secretary
(Seal)
TO THE ARTICLES OF ASSOCIATION OF
WACHOVIA BANK AND TRUST COMPANY, N.A.
The undersigned corporation hereby executes these Articles of Amendment
for the purpose of amending its Articles of Association:
1. The name of the corporation is Wachovia Bank and Trust Company,
N.A.
2. The following amendment to the Articles of Association of the
corporation was adopted by its sole shareholder on the 19th day of April,
1991, in the manner prescribed by law:
Item "FIRST" of the Articles of Association shall be amended to read as
follows:
"FIRST. The Title of this Association is WACHOVIA BANK OF NORTH
CAROLINA NATIONAL ASSOCIATION."
3. The effective date of the change of the Association's name and
these Articles of Amendment shall be the 20th day of May, 1991.
4. The number of shares of the corporation outsanding at the time of
such adoption was 10,272,014l; the number of shares entitled to vote thereon
was 10,272,014.
5. The number of shares voted for such amendment was 10,272,014; and
the number of shares voted against such amendment was 0.
IN WITNESS WHEREOF, these Articles are signed by the President and
Secretary of the corporation this 7th day of May, 1991.
WACHOVIA BANK AND TRUST COMPANY, N.A.
By: /s/ L. M. Baker, Jr.
L. M. Baker, Jr.
President
By: /s/ James G. Vanderberry
James G. Vanderberry
Secretary
COUNTY OF FORSYTH
I, Jill B. Tesh, a Notary Public, hereby certify that on this 7th day
of May, 1991, personally appeared before me L. M. Baker, Jr. and James G.
Vanderberry, each of whom being by me first duly sworn, declared that he
signed the foregoing document in the capacity indicated, that he was
authorized so to sign, and that the statements therein contained are true.
/s/ Jill B. Tesh
Notary Public
My commission expires:
April 6, 1995
<PAGE>
EXHIBIT T-2
BYLAWS
OF
WACHOVIA BANK AND TRUST COMPANY, N.A.
Adopted by the Shareholders
November 12, 1968
---------------
As Amended Through
January 15, 1988
10
<PAGE>
BYLAWS OF
WACHOVIA BANK AND TRUST COMPANY, N.A.
-----------
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1.1. Annual Meeting. The regular annual meeting of the
shareholders of the Bank for the election of Directors and for the
transaction of such other business as may properly come before it shall be
held at the principal office of the Bank in Winston-Salem, North Carolina, or
at such other place as the Directors may designate, at 9:00 a.m. on the
third Friday in April, or at such other hour as the Directors may designate.
Notice of such meeting shall be mailed, first class mail, postage prepaid,
at least ten days before the date thereof, addressed to each shareholder at
his address appearing on the books of the Bank. If, for any reason,
Directors are not elected at this meeting, the meeting may be adjourned to
a later date for this purpose or, if this is not done, the Directors shall
order an election to be held on some subsequent day as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting.
Section 1.2. Special Meetings. Except as otherwise specifically provided
by statute, special meetings of the shareholders may be called for any
purpose at any time by the Directors or by any three or more shareholders
owning, in the aggregate, not less than 25 per cent of the stock of the
Bank. Every such special meeting, unless otherwise provided by law, shall be
called by mailing, first class mail, postage prepaid, not less than ten days
before the date fixed for such meeting, to each shareholder at his address
appearing on the books of the Bank, notice stating the time, place and
purpose of the meeting.
Section 1.3. Record Date for Shareholders Meetings. Shareholders
entitled to notice of the annual meeting or any special meeting shall be
shareholders shown by the records of the Bank to be shareholders twenty days
before the date of any such meeting or on such other date as may be fixed in
advance by the Directors, which date shall not be more than twenty days and
not less than ten days before the date of the shareholders meeting.
Section 1.4. Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or
employee of the Bank shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting.
Section 1.5. Quorum. At every meeting of shareholders, each shareholder
shall be entitled to cast one vote either in person or by proxy for each
share of stock held by him as shown by the records of the Bank twenty days
before the date of the shareholders meeting or held by him on the record date
fixed by the Directors pursuant to Section 1.3 hereof upon any matter coming
before the meeting except as otherwise expressly provided by these bylaws. A
majority of the outstanding stock, represented in person or by proxy, shall
constitute a quorum at any meeting of shareholders unless otherwise provided
by law; but less than a quorum may adjourn a meeting from time to time, and
the meeting may be held, as adjourned, without further notice.
Section 1.6. Cumulative Voting. Except as otherwise provided by law, in
all elections of Directors, each shareholder shall have the right to vote
the number of shares owned by him for as many persons as there are Directors
to be elected, or to cumulate such shares and give one candidate as many
votes as the number of Directors to be elected multiplied by the number of
his shares shall equal, or to distribute them on the same principle among as
many candidates as he shall think fit. This right of cumulative voting shall
not be exercised unless some shareholder or proxy holder announces in open
meeting, before the voting for Directors starts, his intention to vote
cumulatively; and if such announcement is made, the chair shall declare that
all shares entitled to vote
11
<PAGE>
have the right to vote cumulatively and shall announce the number of shares
present in person and by proxy, and shall thereupon grant a recess of not
less than one hour or of such other period as is unanimously then agreed
upon by the shares represented in person or by proxy at the meeting.
Section 1.7. Waiver of Notice. Any shareholder may in writing waive
notice of any regular or special meeting at any time before or after the
holding thereof.
ARTICLE II
DIRECTORS
Section 2.1. Authority of Directors. The Board of Directors (referred
to in these bylaws as the "Directors") shall have power to manage and
administer the business and affairs of the Bank. Except as expressly limited
by law, all corporate powers of the Bank shall be vested in and may be
exercised by the Directors, but the Directors may delegate powers as
provided in these bylaws.
Section 2.2. Number. The Board of Directors shall consist of not less
than five nor more than twenty-five shareholders, the exact number within
such minimum and maximum limits to be fixed and determined from time to time
by resolution of a majority of the Directors or by resolution of the
shareholders at any meeting thereof, provided, however, that a majority of
the Directors may not increase the number of Directors to a number which (a)
exceeds by more than two the number of Directors last elected by the
shareholders where such number was fifteen or less, and (b) to a number which
exceeds by more than four the number of Directors last elected by
shareholders where such number was sixteen or more, but in no event shall
the number of Directors exceed twenty-five.
Section 2.3. Regular Meetings. Regular meetings of the Board of
Directors shall be held on the third Friday of January, April, July and
October of each year at the principal office of the Bank in Winston-Salem,
North Carolina, unless the Chief Executive Officer or the Directors by a
majority vote shall fix some other time or place for the holding of such
meetings. Notice of these regular meetings shall be given in writing or by
telephone or telegraph at least five days before the meeting.
Section 2.4. Organization Meeting. If possible, Directors-elect shall
meet on the same days of the annual meeting of shareholders at which they are
elected for the purpose of organizing the new Board and for the purpose of
electing officers of the Bank for the succeeding year, but in any event, the
new Board shall be organized and officers elected no later than the next
regular meeting of Directors.
Section 2.5. Special Meetings. Special meetings of the Directors may
be called by the Chief Executive Officer, or at the request of three or more
Directors, upon not less than two days' notice. Each Director shall be given
notice stating the time, place and purpose of a special meeting. Notice may
be given in writing or in person or by telephone or telegraph.
Section 2.6. Quorum. At any meeting of the Directors, a majority of
the Directors shall constitute a quorum, provided not less than a majority
of the Directors present are not officers of the Bank. Less than a quorum
may adjourn any meeting from time to time, and the meeting may be held as
adjourned without further notice. In the event of the death or disability
of Directors by reason of war or other catastrophe, reducing the total
Directors to less than that required for a quorum, a majority of the
remaining Directors shall constitute a quorum.
Section 2.7. Waiver of Notice. Any Director may in writing waive
notice of any regular or special meeting at any time before or after the
holding thereof.
12
<PAGE>
Section 2.8. Vacancies. When any vacancy occurs among the Directors,
the remaining Directors may appoint a Director to fill such vacancy at any
regular meeting of the Directors or at any special meeting called for that
purpose. Any Directorships not filled by the shareholders shall be treated
as vacancies to be filled by and in the discretion of the Directors.
Section 2.9. Term. A Director elected at the annual meeting of
shareholders shall hold office until the next annual meeting of shareholders
or until his successor has been elected and qualified. A Director elected
to fill a vacancy shall hold office until the next annual meeting of
shareholders or until his successor is elected and qualified, provided,
however, that, unless otherwise provided by law, any Director may be removed
from office by a majority vote of the stock outstanding entitled to vote at
any special meeting of shareholders called for that purpose.
Section 2.10. Qualification of Directors. No person shall be elected
a Director who is not the owner in his or her own right of shares of stock
of First Wachovia Corporation having a par value of not less than One
Thousand Dollars ($1,000), nor shall any person be elected or continue to
serve as a Director past the annual meeting if such person, as of the date
of the annual meeting, reached the age of seventy (70) years. No person who
has retired from active participation in his principal business or from the
active practice of his principal profession shall be elected a Director,
provided, however, that a person who has served as Chairman, Vice Chairman,
President, or Chief Executive Officer of the Bank or The Wachovia
Corporation may complete an unexpired term and may be re-elected a Director
after retirement from active service with the Bank or The Wachovia
Corporation.
Section 2.11. Directors Emeriti. A Director, upon retiring from the
Board of Directors, may be elected a Director Emeritus by the Directors. A
Director Emeritus shall not have the right to vote and shall not be charged
with the responsibilities nor be the subject to the liability of Directors.
He may attend meetings of the Board only upon invitation of the Directors.
Section 2.12. Compensation. The Directors shall have authority to vote
themselves reasonable compensation for their services as Directors; and the
Directors may provide for their own indemnification and reimbursement of
others by the Bank for liability and expenses actually incurred in
connection with any action, suit or proceeding, civil or criminal, to which
they shall be made a party by reason of having acted for the Bank, subject
to the limitations set forth in Article Ten of the Articles of Association,
and the Directors may authorize the purchase of insurance to provide
therefor.
Section 2.13. Declaration of Dividends. The Directors may, in their
discretion, from time to time declare dividends as permitted by law. Such
dividends may be payable in money, stock of the Bank or in other assets of
the Bank. The Directors may fix a date not exceeding thirty days preceding
the date fixed for the payment of any dividend as the record date for the
determination of shareholders entitled to receive payment of any dividend,
provided the record date shall be not less than seven days after the date on
which the dividend is declared; and only shareholders of record on the date
so fixed shall be entitled to receive such dividend notwithstanding any
transfer of shares on the books of the Bank after any record date so fixed.
ARTICLE III
COMMITTEES
(Exclusive of Trust Department)
Section 3.1. Power of Directors to Appoint Committees. The Directors
having the power to manage and administer the business and affairs of the
Bank may delegate these powers to committees which may, but need not
necessarily, include Directors. By the appointment of such committees, the
Directors do not thereby relieve themselves of their responsibility of
directing the business
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and affairs of the Bank. The following committees, not to include any
committees of the Trust Department, shall be annually appointed by the
Directors at their organizational meeting unless they shall specifically
determine not to appoint such committees. The committees which relate
directly to the business and affairs of the Trust Department shall be
appointed in accordance with Article V of these bylaws.
Section 3.2. Executive Committee. The Executive Committee shall
consist entirely of Directors, the number of which shall be fixed by the
Directors.
The Executive Committee may exercise all of the powers of Directors
during intervals between meetings thereof, including the power to authorize
the execution of contracts, deeds, leases, and other agreements respecting
real or personal property. It shall fix the compensation of all officers or
it may delegate this power to other committees or to the Chief Executive
Officer and may authorize such committees or the Chief Executive Officer to
further delegate this power. It may fill vacancies occurring in any
committee appointed by the Directors between regular meetings of the
Directors. It may fill vacancies occurring in any offices between meetings
of Directors and, when deemed necessary, may create new offices and elect
persons to fill such offices. It shall have general supervision over all
expenditures of the Bank and shall consider and act upon any matter
submitted to it by the Directors or by the Chief Executive Officer and shall
advise the Directors in regard to the policies of the Bank and the conduct of
its affairs. In the event of the death, prolonged absence, or the inability
of the Chief Executive Officer to act, the Executive Committee shall appoint
an Acting Chief Executive Officer who shall assume the duties and have the
powers of the Chief Executive Officer until the Directors shall elect a new
Chief Executive Officer. The Executive Committee shall elect its own Chairman
from among its own members and shall elect its own Secretary who need not be
from among its own members. The Executive Committee shall meet upon the call
of the Chairman of the Executive Committee, the Chief Executive Officer, or
upon the call of any two of its members.
Section 3.3. Bank Loan and Investment Committee. The Bank Loan and
Investment Committee shall include at least three members who are Directors,
two of whom are not officers, and such number of additional members as the
Directors may from time to time determine. The Chief Financial Officer and
the Chief Loan Administration Officer shall each be a member of the Bank Loan
and Investment Committee.
The Bank Loan and Investment Committee shall have general authority
with respect to all loans and investments of the Bank other than trust
investments. It shall have the authority to appoint other committees which
need not necessarily include members of the Bank Loan and Investment
Committee, including the Bank Investment Committee, committees pertaining to
the operation of the Corporate, Retail, Sales Finance, Mortgage and any
other loan functions of the Bank, and loan committees for various branches
of the Bank. The Bank Loan and Investment Committee shall have general
supervision and control of all such committees which it appoints.
Section 3.4. Audit Committee. The Directors shall annually appoint
Audit Committee which shall be composed of not less than three nor more than
five Directors who are not active officers or employees of the Bank. A
Chairman of the Audit Committee shall be designated by the Directors.
The Audit Committee shall assure that there exist viable auditing
processes, both internal and independent, for the Bank and its subsidiary or
affiliated companies. The Audit Committee shall cause suitable audits of the
Trust Division to be made as set forth in Section 5.6 of Article V hereof.
In discharging its duties, the Audit Committee shall: (a) recommend to the
Board of Directors the appointment of independent auditors; and (b) maintain
open lines of communication with internal auditors, external auditors, and
regulatory examiners, for the purpose of satis-
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fying the Audit Committee that audit scope and programs are not restricted
short of need, that management takes appropriate and timely action on
recommendations made by the auditors and/or examiners, and that Bank
personnel cooperate with auditors and examiners.
The Audit Committee shall meet on call of the Chairman of the Audit
Committee as the nature of business warrants and shall review and consider
reports of examination of the Comptroller of the Currency, management
letters or other comments of the external auditors, reports of the internal
auditor, and any other audit-related business it considers appropriate. The
Chairman of the Audit Committee shall report to the Board of Directors on any
recommendations made by the Audit Committee and on action taken by
management on such recommendations.
Section 3.5. Other Committees. The Directors may appoint such other
committees from time to time as they may deem proper for the management of
the business and affairs of the Bank, and the Directors may delegate to the
Executive Committee, or to the Chief Executive Officer, the appointment of
other committees which they may deem necessary for the direction of the
business and affairs of the Bank.
ARTICLE IV
OFFICERS
Section 4.1. Officers to be Elected by Directors. The Board of Directors
shall annually elect the following officers: a Chairman of the Board of
Directors (Chairman), a President, an executive officer whose principal duty
shall be to supervise the affairs of the Trust Department and be primarily
responsible for the operation thereof, a Secretary, a Treasurer, a
Comptroller, a General Auditor, and a General Counsel.
The Directors may annually elect one or more Vice Chairmen of the Board of
Directors, one or more Vice Presidents, one or more Assistant Secretaries,
one or more Assistant Treasurers, one or more Trust Officers, one or more
Deputy Auditors, one or more Assistant Auditors, and such other officers as
the Directors may think necessary or desirable.
The Chairman, the President and the Vice Chairmen of the Board of Directors
shall be Directors. Other officers may, but need not be Directors. Any two
offices not inconsistent with each other may be held by the same person.
Section 4.2. Term. Unless otherwise specified, each officer shall be
elected for a term of one year but shall continue to hold office thereafter
until his successor is elected or until he resigns, retires, or is removed
from office.
Section 4.3. Salaries. The salaries and other compensation of officers
shall be fixed by the Executive Committee or by such person or persons to
whom the power to fix compensation has been delegated.
Section 4.4. Chief Executive Officer. The Chief Executive Officer of the
Bank shall be elected annually by the Directors and may hold the title of
either Chairman or President, or may hold the titles of both Chairman and
President. The Chief Executive Officer shall have overall resonsibility for
administering the pursuit of the basic mission and objectives of the Bank
and shall exercise general supervision and authority over the affairs of the
Bank and of all its subsidiary banks and companies. He shall exercise all of
the powers customarily exercised by a Chief Executive Officer of a national
banking association by whatever name called unless expressly limited by the
Directors. All officers of the Bank shall report to him to the extent he may
require.
In the interim between meetings of the Directors or meetings of the
Executive Committee, the Chief Executive Officer may make appointments
pro-tem to any office below the level of Executive Vice President, either
for the purpose of filling a vacancy or increasing the number of officers,
such appointees pro-tem to hold office until the next succeeding regular or
special meeting of the Directors, who may in their discretion approve,
confirm or revoke any such appointments. The
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salaries of all agents and employees of the Bank other than officers shall be
fixed by the Chief Executive Officer or by a committee appointed by him. The
compensation of all committee members shall also be fixed by the Chief
Executive Officer. He shall have the power to execute in the name and on
behalf of the Bank, or to delegate such power to others, all contracts or
instruments of every character relating to real or personal property without
express authority of the Directors unless such authority is expressly limited
by the Directors.
It shall be the duty of the Chief Executive Officer or his designee to
make a report of the Bank's performance and condition to the shareholders at
their annual meeting and to the Directors at their regular meetings
embracing therein such recommendations as to the policy and conduct of the
business of the Bank as he may deem advisable. He shall be ex officio a
member of all committees and shall preside at meetings of shareholders.
Section 4.5. Chairman of the Board of Directors. The Chairman of the Board
of Directors shall preside at all meetings of the Board of Directors. If not
elected Chief Executive Officer, the Chairman shall have such other authority
and shall perform such other duties as may from time to time be conferred
upon him by the Directors or by the Chief Executive Officer, and in the
event of the disability or death of the Chief Executive Officer or
President, he shall perform the duties of the Chief Executive Officer or
President unless and until the Executive Committee shall appoint an acting
Chief Executive Officer or President or until a new Chief Executive Officer
or President is elected by the Directors.
Section 4.6. President. If not elected Chief Executive Officer, the
President shall have such authority and shall perform such duties as may from
time to time be conferred upon him by the Directors or by the Chief Executive
Officer, and in the event of disability of the Chief Executive Officer or
Chairman, he shall perform the duties of the Chief Executive Officer or
Chairman unless and until the Executive Committee shall appoint an acting
Chief Executive Officer or Chairman or until a new Chief Executive Officer
or Chairman is elected by the Directors.
Section 4.7. Vice Chairmen of the Board of Directors. Vice Chairmen of the
Board of Directors shall have such authority and shall perform such duties as
may from time to time be conferred upon them by the Directors or by the Chief
Executive Officer.
Section 4.8. Chief Financial Officer. The Chief Financial Officer shall
have overall responsibility for maintaining the financial condition of the
Bank on a sound basis and shall exercise general supervision over the
financial affairs of the Bank as prescribed by the Directors or by the Chief
Executive Officer. He shall serve as a member of the Bank Loan and Investment
Committee and he shall have such other responsibilities and duties as shall
be assigned to him by the Directors or by the Chief Executive Officer.
Section 4.9. Chief Loan Administration Officer. The Chief Loan
Administration Officer shall have overall responsibility for maintaining the
loan account of the Bank on a sound basis and shall exercise general
supervision over the lending activities of the Bank as prescribed by the
Directors or by the Chief Executive Officer. He shall serve as a member of
the Bank Loan and Investment Committee and he shall have such other
responsibilities and duties as shall be assigned to him by the Directors or
by the Chief Executive Officer.
Section 4.10. Vice Presidents. Vice Presidents shall be designated as
Senior Executive Vice Presidents, Executive Vice Presidents, Regional Vice
Presidents, Group Vice Presidents, Senior Vice Presidents, First Vice
Presidents, Vice Presidents, and Assistant Vice Presidents. The Board of
Directors shall annually elect such number of each designation as it may deem
proper. Each category of Vice Presidents shall have such responsibilities
and duties as shall be specifically assigned to them by the Directors or, in
the absence of such specific assignment of responsbilities and duties by the
Directors, they shall have such responsibilities and duties as shall be
assigned to them by the Chief Executive Officer.
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Section 4.11. Secretary. The Secretary shall act as secretary at all
meetings or the shareholders and at all meetings of the Directors. He shall
issue notices for such meetings in accordance with the requirements of the
bylaws. He shall have custody of the corporate seal and, upon request of the
Chief Executive Officer, shall attest any instrument relating to real or
personal property and perform such other duties as from time to time shall
be assigned to him by the Directors or by the Chief Executive Officer.
Section 4.12. Assistant Secretaries. Each Assistant Secretary shall perform
such duties as shall be assigned to him by the Directors or by the Chief
Executive Officer and, in the absence or disability of the Secretary, one or
more of the Assistant Secretaries designated by the Chief Executive Officer
shall have all of the powers and perform all of the duties of the Secretary.
Section 4.13. Treasurer. The Treasurer shall have such responsibilities and
duties as shall be assigned to him by the Directors or by the Chief Executive
Officer.
Section 4.14. Assitant Treasurers. An Assistant Treasurer shall have such
responsibilities and duties as shall be assigned to him by the Directors or
by the Chief Executive Officer.
Section 4.15. Comptroller. The Comptroller shall be the Chief Accounting
Officer of the Bank and shall exercise general supervision and control over
the accounting and financial records and reports of the Bank. He shall have
such other responsibilities and duties as shall be assigned to him by the
Directors or by the Chief Executive Officer.
Section 4.16. General Auditor. The General Auditor shall have access to all
books and records of the Bank and shall be responsible for auditing all
financial records of the Bank. With respect to the scope, manner, extent and
result of his audit, he shall be responsible only to the Directors, but in
other respects, he shall be under the general supervision and direction of
the Chief Executive Officer.
Section 4.17. Deputy Auditors and Assistant Auditors. Each Deputy Auditor
and Assistant Auditor shall have such responsibilities and duties as shall be
assigned to him by the Directors or by the General Auditor.
Section 4.18. General Counsel. The General Counsel shall exercise general
supervision over the legal affairs and risks of the Bank. He shall have such
other responsibilities and duties as shall be assigned to him by the
Directors or by the Chief Executive Officer.
ARTICLE V
TRUST DEPARTMENT
Section 5.1. Separate Department. There shall be a separate and independent
department of the Bank, designated the Fiduciary Administration Division but
known generally and referred to herein as the Trust Department, which shall
perform the fiduciary responsibilities of the Bank.
Section 5.2. Management of Trust Department. An executive officer shall be
elected annually who shall supervise the affairs of the Trust Department and
be primarily responsible for the operation thereof, but who shall be subject
to the superior authority of the Board of Directors and the Chief Executive
Officer.
Section 5.3. Other Officers of the Trust Department. Other officers of the
Trust Department shall consist of Vice Presidents, Trust Officers and such
other officers as the Directors or the Chief Executive Officer may deem
necessary or advisable for the proper management of the affairs of the Trust
Department or any branch or division of the Trust Department, and such
officers shall have such duties as shall be assigned to them by the
Directors or by the Chief Executive Officer or by the exeuctive officer in
charge of the Trust Department. They shall report to the executive officer in
charge of the Trust Department but shall be under the general supervision of
the Chief Executive Officer.
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Section 5.4 Trust Committee. There shall be a Trust Committee annually
appointed by the directors at their organizational meeting. The Trust
Committee shall consist of at least two Directors who are not officers, the
executive officer in charge of the Trust Department, and such additional
members as the Directors may elect. The Chairman of the Trust Committee
shall be designated by the Board of Directors and the Trust Committee may
elect its own Secretary who need not be from among its own members.
The Trust Committee shall have the responsibility to determine the general
policies for the operation of the Trust Department, review and evaluate
marketing plans, revenue and profit goals, fee schedules, and litigation or
other legal problems involving the Trust Department.
The Trust Committee shall review and evaluate on an overall basis the
investment policies, philosophy and performance of all trust investments but
shall not participate in specific investment decisions.
The Trust Committee may delegate authority to such individuals and may
appoint such committee as it from time to time deems necessary and proper.
The Trust Committee shall hold regular meetings at least quarterly and at
such other times as it may be called to meet by the Board of Directors, the
Chief Executive Officer, the Chairman of the Trust Committee, the executive
officer in charge of the Trust Department, or by any two of its members.
Section 5.5 Trust Investment Committee. There shall be a Trust Investment
Committee annually appointed by the Directors at their organizational
meeting. The Trust Investment Committee shall include the executive officer
in charge of the Trust Department and such additional members as the
Directors may elect. The Chairman of the Trust Investment Committee shall be
designated by the Board of Directors and the Trust Investment Committee may
elect its own Secretary who need not be from among its own members.
The Trust Investment Committee shall have general authority with respect to
the investment and disposition of all property held by the Bank in a
fiduciary capacity. The Trust Investment Committee shall establish and
supervise the investment policies, philosophy, performance and strategy for
all trust investments on an overall basis but need not concern itself with
specific investment decisions for individual accounts. The Trust Investment
Committee shall authorize the making of such contracts or agreements with
investment counsel and secure such other investment advice and materials as
it may deem necessary and proper.
The Trust Investment Committee may delegate its authority to such
individuals and may appoint such other committees as it deems necessary and
proper to deal with any particular activity of the Trust Investment
Committee. Such individuals and such other committees shall report
periodically and be responsible to the Trust Investment Committee.
The Trust Investment Committee shall hold regular meetings at least once a
month and at such other times as it may be called to meet by the Board of
Directors, the Chief Executive Officer, the Chairman of the Trust Investment
Committee, the executive officer in charge of the Trust Department or by any
two of its members.
Section 5.6 Audit of Trust Department. A suitable audit shall be made at
least once each calendar year and within fifteen months of the last such
audit, by auditors responsible only to the Board of Directors, in order to
ascertain that the Trust Department has been administered in accordance with
the applicable law, rules and regulations, and sound fiduciary principles.
Such audit shall be separate and apart from any examination conducted by any
regulatory agency.
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Section 5.7. Trust Department Records. There shall be maintained by the
Trust Department separate and distinct from the other records of the Bank,
all records necessary and sufficient to assure that the fiduciary
responsibilities of the Bank have been properly undertaken and discharged.
ARTICLE VI
BOARDS OF MANAGERS
Section 6.1. Authority. The regional Boards of Managers shall have general
supervision over all the business and affairs of their respective regions
subject to the superior authority of the Directors, the Executive Committee
and the Chief Executive Officer, and may establish rules and regulations for
the conduct of the business of their respective regions not inconsistent
with these bylaws. The regional Boards of Managers may, with the approval of
the Chief Executive Officer, elect persons to fill vacancies in its (their)
membership. Members so elected shall serve until the next regular meeting of
the Directors. The regional Boards of Managers shall in turn have authority
to appoint Advisory Boards for such locations of the Bank within their
respective regions as they may deem advisable.
Section 6.2. Meetings. The regular meetings of the regional Boards of
Managers shall be held each quarter during the months of Junuary, April, July
and October before the regular meetings to be held in those months by the
Directors. The Chairman of each regional Board of Managers, the officer in
charge of the region, or any two members of a Board of Managers may call
meetings at such other times as they may deem necessary. Four members of a
regional Board of Managers, at least two of whom are not officers of the
Bank, shall constitute a quorum. Each regional Board of Managers shall keep
minutes and shall appoint a person to act as Secretary of each Board.
Section 6.3. Organization. The regional Boards of Managers shall, before
the April meeting of the Directors, select for recommendation by the proper
appointing authority members of its own Board, a Chairman of its Board,
officers of its region, members of an Examining Committee, and members of
such other committees as may from time to time be established by the
appointing authority. All such recommendations shall be transmitted to the
Secretary of the Bank before the meeting of the Directors in April.
ARTICLE VII
STOCK AND STOCK CERTIFICATES
Section 7.1. Certificates. The shares of stock of the Bank shall be
represented by certificates signed by the Chief Executive Officer or a Vice
President and the Secretary or an Assistant Secretary, manually or by
facsimile, and shall bear the seal of the Bank or a printed or engraved
facsimile of the seal, shall be in such form as the Directors may prescribe,
and shall be issued for one or more full shares only.
Section 7.2. Transfer. Shares of stock shall be transferable only on the
books of the Bank by the holder or by an attorney or legal representative
thereof duly authorized by a power of attorney filed with the Bank and upon
surrender of the stock certificate or certificates for such shares properly
endorsed.
Section 7.3. Address of Shareholders. Every shareholder shall keep the Bank
advised of his mailing address. The Bank may rely upon its shareholder
records as to the mailing address of any shareholder unless and until
otherwise advised in writing.
Section 7.4. Lost Certificates. The holder of any shares of stock of this
Bank, the certificate or certificates for which shall have been lost or
destroyed, shall immediately notify the Bank of such fact. A new certificate
or certificates may be issued upon satisfactory proof of the loss or
destruction of the old certificate, and the Bank may require a bond which
shall be in such sum, contain such terms and provisions, and have such surety
or sureties as the Bank may require.
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Section 8.1. Form. The seal of the Bank shall consist of the words
"Wachovia Bank and Trust Company, N.A., Winston-Salem, N.C.'' in concentric
circles with the word "Seal'' appearing in the inner circle, and shall be in
the form impressed hereon.
Section 8.2. Use of Seal. The seal may be affixed to any document by the
Secretary, any Assiatant Secretary, or other person specifically authorized
by the Directors, the Executive Committee, or the Chief Executive Officer.
ARTICLE IX
FISCAL YEAR
Section 9.1. Fiscal Year. The fiscal year of the Bank shall be the calendar
year.
ARTICLE X
BYLAWS
Section 10.1. Amendments. The bylaws may be amended, altered or repealed
either by the shareholders at any regular meeting of the shareholders or at
any special meeting called for that purpose or by an affirmative vote of a
majority of the Directors then holding office at any regular or special
meeting, and the authority of the Directors shall include the authority to
amend, alter or repeal any bylaw adopted by the shareholders unless the
shareholders with respect to any specific bylaw shall limit the power of the
Directors to amend or repeal any such specific bylaw.
Section 10.2. Inspection. A copy of the bylaws with all amendments thereto
shall be kept in the custody of the Secretary at the principal office of the
Bank and shall be open for inspection to all shareholders during normal
banking hours.
20
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RESOLUTION TO AMEND THE BYLAWS
OF THE WACHOVIA CORPORATION
WHEREAS, the volume and scope of lending activity has created a need for
revision of the Company's Loan Committee structure and process to afford a
more efficient, uniform, and effective review and focused appraisal of loans
and investments; and
WHEREAS, the Company's revision of the Loan and Investment Committee
structure and process and the establishment of a Board Credit Committee will
provide a more effective review and monitoring process of loans originating
in the Company and increase the direct involvement of non-management
Directors of the Company in the credit review process;
NOW, THEREFORE, BE IT RESOLVED, that Article III, Section 3.4 of the
Bylaws is hereby amended by striking and deleting said Section in its
entirety and substituting in lieu thereof the following Article III, Section
3.4:
"Section 3.4. Board Credit Committee. The Board Credit Committee shall
consist entirely of non-management Directors, the number of which shall
be determined by the Board. The Board Credit Commitee shall have
general authority for all loans, investments and other credit
exposures, except Trust investments. The Board Credit Committee may
appoint a Management Credit Commitee, and such other credit committees
as it deems appropriate, and delegate to them such responsibility and
authority as is deemed appropriate for the proper conduct and
supervision of loan and investment activities. However, the Board
Credit Committee shall maintain supervision and oversight of loan and
investment activities through periodic reviews of major credit
policies, practices, processes, exposures, and problems as it deems
necessary to ensure the overall soundness of loans and investments,
the effectiveness of lending activities, and the adequacy of loss
reserves.''
Page 45
<PAGE>
RESOLUTION TO AMEND THE BYLAWS OF
WACHOVIA BANK AND TRUST COMPANY, N.A.
WHEREAS, the volume and scope of lending activity has created a need for
revision of the Company's Loan Committee stucture and process to afford a
more efficient, uniform, and effective review and focused appraisal of loans
and investments; and
WHEREAS, the Company's revision of the Loan and Investment Committee
structure and process and the establishment of a Board Credit Committee will
provide a more effective review and monitoring process of loans originating
in the Company and increase the direct involvement of non-management
Directors of the Company in the credit review process;
NOW, THEREFORE, BE IT RESOLVED, that Article III, Section 3.3 of the
Bylaws is hereby amended by striking and deleting said Section in its
entirety and substructuring in lieu thereof the following Article III,
Section 3.3:
"Section 3.3 Board Credit Committee. The Board Credit Committee shall
consist entirely of non-management Directors, the number of which shall
be determined by the Board. The Board Credit Committee shall have
general authority for all loans, investments and other credit exposures,
except Trust investments. The Board Creidt Committee may appoint a
Management Credit Committee, and such other credit committees as it
deems appropriate, and delegate to them such responsibility and
authority as is deemed appropriate for the proper conduct and
supervision of loan and investment activities. However, the Board Credit
Committee shall maintain supervision and oversight of loan and
investment activities through periodic reviews of major credit
policies, practices, processes, exposures, and problems as it deems
necessary to ensure the overall soundness of loans and investments, the
effectiveness of lending activities, and the adequacy of loss
reserves.''
Page 46
<PAGE>
RESOLUTION TO AMEND THE BYLAWS OF
WACHOVIA BANK AND TRUST COMPANY, N.A.
WHEREAS, ultimate responsibility for the proper exercise of its fiduciary
powers lies with the Bank's Board of Directors; and
WHEREAS, the Board of Directors may assign the administration of such of
the Bank's fiduciary powers as it may consider proper to such Directors,
officers, or committees as it may designate; and
WHEREAS, Directors review and evaluate the actions of individuals or
committees to assure that the Bank's fiduciary duties and responsibilites are
administered efficiently and in full compliance with all applicable laws,
regulations and sound fiduciary principles; and
WHEREAS, the organizational structure of the Trust Department should be
set forth in the Bylaws of the Bank:
NOW, THEREFORE, BE IT RESOLVED, that Article V, Section 5.4 of the Bylaws
is hereby amended by striking and deleting said Section in its entirety and
substituting in lieu thereof the following Article V, Section 5.4:
Section 5.4. Board Trust Committee. There shall be a Board Trust
Committee annually appointed by the Directors at their organizational
meeting. The Board Trust Committee shall consist entirely of
non-management Directors, the number of which shall be determined by
the Board. The Chairman of the Board Trust Committee shall be
designated by the Board of Directors and the Board Trust Committee may
elect its own secretary who need not be from among its own members.
The Board Trust Committee shall have the responsibility and authority
for supervision and oversight of the general policies and operations of
the trust function and to review and evaluate its plans, strategies,
goals, fee schedules, legal matters and performance.
The Board Trust Committee shall appoint a Management Trust Committee,
and such other trust committees as it from time to time deems necessary
and proper, and delegate to them such duties and authority as it deems
appropriate for the proper administration of the Bank's fiduciary
responsibilities.
The Board Trust Committee shall hold regular meetings at least quarterly
and at such other times as it may be called to meet by the Board of
Directors, the Chief Executive Officer, the Chairman of the Trust
Committee, the executive officer in charge of the Trust Department, or
by a majority of its members.
RESOLVED FURTHER, that Article V, Section 5.5 of the Bylaws is hereby
amended by striking and deleting said Section in its entirety and the
remaining subsequent Sections of Article V are hereby renumbered
accordingly.
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<PAGE>
RESOLUTION AMENDING BYLAWS - CORPORATION
"WHEREAS, the bylaws presently limit the number of Directors who may be
members of the Audit Committee to five (5); and
"WHEREAS, it is deemed desirable not to so limit the number of Directors
who may be members of the Audit Committee.
"NOW, THEREFORE, BE IT RESOLVED, that the bylaws of the Company are
hereby amended as follows:
"The entire first paragraph of Section 3.3 is deleted and the following
substituted therefor:
"Section 3.3. Audit Committee. The Directors shall annually
appoint an Audit Committee, which shall consist entirely of
Directors who are not active officers or employees of the Company,
the number of which shall be fixed by the Directors. A chairman of
the Audit Committee shall be designated by the Directors."
RESOLUTION AMENDING BYLAWS - BANK
"WHEREAS, the bylaws presently limit the number of Directors who may be
members of the Audit Committee to five (5); and
"WHEREAS, it is deemed desirable not to so limit the number of Directors
who may be members of the Audit Committee.
"NOW, THEREFORE, BE IT RESOLVED, that the bylaws of the Bank are hereby
amended as follows:
"The entire first paragraph of Section 3.4 is deleted and the following
substituted therefor:
"Section 3.4. Audit Committee. The Directors shall annually
appoint an Audit Committee, which shall consist entirely of
Directors who are not active officers or employees of the Bank, the
number of which shall be fixed by the Directors. A chairman of
the Audit Committee shall be designated by the Directors."
Page 7
<PAGE>
BOARD OF DIRECTORS MEETING
APRIL 19, 1991
RESOLUTIONS RECOMMENDING AMENDING ARTICLES OF ASSOCIATION-
CHANGE OF BANK NAME TO WACHOVIA BANK OF NORTH CAROLINA
NATIONAL ASSOCIATION
RESOLVED, that the Board of Directors of Wachovia Bank and Trust Company,
N.A. (the "Bank") does hereby adopt the following resolutions:
"RESOLVED, that the adoption of the following resolution is hereby
recommended to the sole shareholder of the Bank:
RESOLVED, that the Articles of Association shall be amended by
deleting ARTICLE FIRST thereof in its entirety and substituting
therefor the following new ARTICLE FIRST:
' FIRST. The title of this Association shall be "WACHOVIA BANK
OF NORTH CAROLINA, NATIONAL ASSOCIATION." '
RESOLVED FURTHER, that the change of the Bank's name, and amendment of the
Articles of Association shall be effective on or after April 26, 1991, or as
soon thereafter as the proper officers of the Bank, acting for and on behalf
of the Bank, shall have filed the proper documents with the Comptroller of
the Currency and established an appropriate and effective implementation
date for the name change and amendment; and
RESOLVED FURTHER, that effective upon the change of the Bank's name, the
seal of the Bank shall be revised to reflect the changed name of the Bank,
which seal shall consist of the new name of the Bank in concentric circles
with the word "Seal" appearing in the inner circle; and
RESOLVED FURTHER, that effective upon the change of the Bank's name, the
form of the Common Stock Certificate of the Bank shall be revised to reflect
the changed name of the Bank, and the form and content of said Common Stock
Certificate shall otherwise remain unchanged; and
RESOLVED FURTHER, that effective upon the change of the Bank's name, the
Bylaws of the Bank shall be amended by deleting the former name of the Bank
in all instances in which it appears in said Bylaws, and substituting
therefor the new name of the Bank; and
RESOLVED FURTHER, that the proper officers of the Bank, acting for and on
behalf of the Bank, shall be and hereby are authorized and directed to take
any and all
Page 30
<PAGE>
actions as may be deemed necessary or advisable to carry out the purpose
resolutions, including but not limited to the following: filing the proper
documents with the Comptroller of the Currency, filing proper documents with
other governmental, administrative and regulatory bodies and agencies;
amending executory contracts to which the Bank is party or by which it is
bound, in order to reflect the changed name of the Bank (which amendments
shall not affect the validity or enforceability of such contracts); and
amending or giving necessary notices pursuant to any and all other documents,
permits, licenses, agreements or other instruments of any type whatsoever
affecting the Bank in order to reflect the changed name of the Bank (which
amendments and notices shall not affect the validity or enforceability of the
instruments with respect to which they are made or given).''
Page 31
<PAGE>
EXHIBIT T-3
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, as amended, in conjunction with the proposed
issuance of debt securities by CCB Corporation, Wachovia Bank of North
Carolina, N.A., hereby consents that reports of examinations by
federal, State, Territorial or District authorities may be furnished
by such authorities to the Securities and Exchange Commission upon
request thereof.
Wachovia Bank of North Carolina, N.A.
By: /s/ Sandra M. Turner
Sandra M. Turner
Vice President
<PAGE>
[LETTERHEAD OF BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM]
- --------------------------------------------------------------------------------
(LOGO OF BOARD OF Please refer to page i, 1
GOVERNORS OF THE Table of Contents, for
FEDERAL RESERVE the required disclosure
SYSTEM APPEARS HERE) of estimated burden.
- --------------------------------------------------------------------------------
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices--FFIEC 031
Report at the close of business June 30, 1993
(930630)
- -----------
(RCRI 9999)
This report is required by law: 12 U.S.C. (S)324 (State member banks); 12 U.S.C.
(S)1817 (State nonmember banks); and 12 U.S.C. (S)161 (National Banks).
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
- --------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National Banks.
I, James A. Tewes, Senior Vice-President
---------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and belief.
/s/ James A. Tewes
- ----------------------------------------------
Signature of Officer Authorized to Sign Report
7/29/93
- ----------------------------------------------
Date of Signature
The reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in some
cases differ from generally accepted accounting principals.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
- ----------------------------------------------
Director (Trustee)
- ----------------------------------------------
Director (Trustee)
- ----------------------------------------------
Director (Trustee)
- --------------------------------------------------------------------------------
For Banks Submitting Hard Copy Report Forms:
State Member Banks: Return the original and one copy to the appropriate Federal
Reserve District Bank.
State Nonmember Banks: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2139 Espey Court, Crofton, MD 21114.
National Banks: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2139
Espey Court, Crofton, MD 21114.
- --------------------------------------------------------------------------------
FDIC Certificate Number 00817
-----
CALL NO. 184 31 06-30-93
CERT: 00817 09039 STBK 37-2230
WACHOVIA BANK OF NORTH CAROLINA, NAT
P.O. BOX 3099
WINSTON-SALEM, NC 27102
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE>
2
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices
- -------------------------------------------------------------------------------
Table of Contents
<TABLE>
<S> <C>
Signature Page Cover
Report of Income
Schedule RI--Income Statement....................................RI-1,2,3
Schedule RI-A--Changes in Equity Capital.............................RI-3
Schedule RI-B--Charge-offs and Recoveries and Changes in
Allowance for Loan and Lease Losses..............................RI-4,5
Schedule RI-C--Applicable Income Taxes by Taxing Authority...........RI-5
Schedule RI-D--Income from International Operations..................RI-6
Schedule RI-E--Explanations........................................RI-7,8
Report of Condition
Schedule RC--Balance Sheet.........................................RC-1,2
Schedule RC-A--Cash and Balances Due From Depository
Institutions.......................................................RC-3
Schedule RC-B--Securities..........................................RC-4,5
Schedule RC-C--Loans and Lease Financing
Receivables:
Part I. Loans and Leases.......................................RC-6,7
Part II. Loans to Small Businesses and Small Farms
(included in the forms for June 30 only)..................RC-7a,7b
Schedule RC-D--Assets Held in Trading Accounts in Domestic
Offices Only (to be completed only by banks with $1
billion or more in total assets)...................................RC-8
Schedule RC-E--Deposit Liabilities................................RC-9,10
Schedule RC-F--Other Assets.........................................RC-11
Schedule RC-G--Other Liabilities....................................RC-11
Schedule RC-H--Selected Balance Sheet Items for Domestic
Offices...........................................................RC-12
Schedule RC-I--Selected Assets and Liabilities of IBFs..............RC-12
Schedule RC-K--Quarterly Average....................................RC-13
Schedule RC-L--Off-Balance Sheet Items...........................RC-14,15
Schedule RC-M--Memoranda.........................................RC-16,17
Schedule RC-N--Past Due and Nonaccrual Loans,
Leases, and Other Assets.......................................RC-18,19
Schedule RC-O--Other Data for Deposit Insurance
Assessments....................................................RC-19,20
Schedule RC-R--Risk-Based Capital................................RC-21,22
Optional Narrative Statement Concerning the
Amounts Reported in the Reports of Condition
and Income........................................................RC-23
Special Report (to be completed by all banks)
Schedule RC-J--Repricing Opportunities (sent only to
and to be completed only by savings banks)
</TABLE>
Disclosure of Estimated Burden
The estimated average burden associated with this information collection is 29.2
hours per respondent and is estimated to vary from 14.6 to 150 hours per
response, depending on individual circumstances. Burden estimates include the
time for reviewing instructions, gathering and maintaining data in the required
form, and completing the information collection, but exclude the time for
compiling and maintaining business records in the normal course of a
respondent's activities. Comments concerning the accuracy of this burden
estimate and suggestions for reducing this burden should be directed to the
Office of Information and Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 20503, and to one of the following:
Secretary
Board of Governors of the Federal Reserve System
Washington, D.C. 20551
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
For information or assistance, national and state nonmember banks should contact
the FDIC's Call Reports Analysis Unit, 550 17th Street, NW, Washington, D.C.
20429, toll free on (800) 688-FDIC (3342), Monday through Friday between 8:00
a.m. and 5:00 p.m., Eastern time. State member banks should contact their
Federal Reserve District bank.
<PAGE>
Legal Title of Bank: Wachovia Bank of North Carolina, N.A. Call Date: 6/30/93
Address: P.O. Box 3099 ST-BK: 37-2230
City, State Zip: Winston-Salem, NC 27102-3099 FFIEC 031
FDIC Certificate No: 00817 Page RI-1
Consolidated Report of Income
for the period January 1, 1993 - June 30, 1993
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
Schedule RI--Income Statement
<TABLE>
<CAPTION> --------
1480
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. Interest income: //////////////////
a. Interest and fee income on loans: //////////////////
(1) In domestic offices: //////////////////
(a) Loans secured by real estate.................................................. 4011 134,898 1.a.(1)(a)
(b) Loans to depository institutions.............................................. 4019 4,311 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to //////////////////
farmers....................................................................... 4024 2,381 1.a.(1)(c)
(d) Commercial and industrial loans............................................... 4012 77,694 1.a.(1)(d)
(e) Acceptences of other banks.................................................... 4026 0 1.a.(1)(e)
(f) Loans to individuals for household, family, and other personal expenditures: //////////////////
(1) Credit cards and related plans............................................ 4054 9,633 1.a.(1)(f)(1)
(2) Other..................................................................... 4055 73,001 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions........................ 4056 25 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and //////////////////
political subdivisions in the U.S.: //////////////////
(1) Taxable obligations....................................................... 4503 2,009 1.a.(1)(h)(1)
(2) Tax-exempt obligations.................................................... 4504 7,091 1.a.(1)(h)(2)
(i) All other loans in domestic offices........................................... 4058 46,324 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs..................... 4059 0 1.a.(2)
b. Income from lease financing receivables: //////////////////
(1) Taxable leases.................................................................... 4505 2,199 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 0 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs..................... 4106 1,532 1.c.(2)
d. Interest and dividend income on securities: //////////////////
(1) U.S. Treasury securities and U.S. Government agency and corporation //////////////////
obligations....................................................................... 4027 100,056 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.: //////////////////
(a) Taxable securities............................................................ 4506 314 1.d.(2)(a)
(b) Tax-exempt securities......................................................... 4507 16,984 1.d.(2)(b)
(3) Other domestic debt securities.................................................... 3657 2,824 1.d.(3)
(4) Foreign debt securities........................................................... 3658 0 1.d.(4)
(5) Equity securities (including investments in mutual funds)......................... 3659 175 1.d.(5)
e. Interest income from assets held in trading accounts.................................. 4069 11,671 1.e.
--------------------
</TABLE>
- --------------
(1) Includes interest income on time certificates of deposit not held in trading
accounts.
3
<PAGE>
Legal Title of Bank: Wachovia Bank of North Carolina, N.A. Call Date: 6/30/93
Address: P.O. Box 3099 ST-BK: 37-2230
City, State Zip: Winston-Salem, NC 27102-3099 FFIEC 031
FDIC Certificate No: 00817 Page RI-2
Schedule RI--Continued
<TABLE>
<CAPTION>
------------------
Dollar Amounts in Thousands Year-to-date
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Interest income (continued) RIAD Bil Mil Thou
f. Interest income on federal funds sold and securities purchased //////////////////////
under agreements to resell in domestic offices of the bank and of //////////////////////
its Edge and Agreement subsidiaries, and in IBFs........................ 4020 10,605 1.f.
g. Total interest income (sum of items 1.a through 1.f).................... 4107 503,727 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 11,356 2.a.(1)(a)
(b) Nontransaction accounts: //////////////////////
(1) Money market deposit accounts (MMDAs)....................... 4509 21,863 2.a.(1)(b)(1)
(2) Other savings deposits...................................... 4511 13,158 2.a.(1)(b)(2)
(3) Time certificates of deposit of $100,000 or more............ 4174 22,592 2.a.(1)(b)(3)
(4) All other time deposits..................................... 4512 56,073 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement //////////////////////
subsidiaries, and IBFs.............................................. 4172 3,983 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 Agreement subsidiaries, and in IBFs............................ 4180 45,259 2.b.
c. Interest on demand notes issued to the U.S. Treasury and on other //////////////////////
borrowed money.......................................................... 4185 32,551 2.c.
d. Interest on mortgage indebtedness and obligations under capitalized //////////////////////
leases.................................................................. 4072 83 2.d.
e. Interest on subordinated notes and debentures........................... 4200 4,562 2.e.
f. Total interest expense (sum of items 2.a through 2.e)................... 4073 211,480 2.f.
---------------------
3. Net interest income (item 1.g minus 2.f)................................... ////////////////////// RIAD 4074 292,247 3.
---------------------
4. Provisions: //////////////////////
---------------------
a. Provision for loan and lease losses..................................... ////////////////////// RIAD 4230 5,945
4.a.
b. Provision for allocated transfer risk................................... ////////////////////// RIAD 4243 0
4.b.
---------------------
5. Noninterest income: //////////////////////
a. Income from fiduciary activities........................................ 4070 37,962 5.a.
b. Service charges on deposit accounts in domestic offices................. 4080 49,097 5.b.
c. Trading gains (losses) and fees from foreign exchange transactions...... 4075 3,464 5.c.
d. Other foreign transaction gains (losses)................................ 4076 0 5.d.
e. Gains (losses) and fees from assets held in trading accounts............ 4077 5,932 5.e.
f. Other noninterest income: //////////////////////
(1) Other fee income.................................................... 5407 15,402 5.f.(1)
(2) All other noninterest income*....................................... 5408 31,980 5.f.(2)
----------------------
g. Total noninterest income (sum of itmes 5.a through 5.f)................. ////////////////////// RIAD 4079 143,837
5.g.
6. Gains (losses) on securities not held in trading accounts.................. ////////////////////// RIAD 4091 286 6.
----------------------
7. Noninterest expense: //////////////////////
a. Salaries and employee benefits.......................................... 4135 95,565 7.a.
b. Expenses of premises and fixed assets (net of rental income) //////////////////////
(excluding salaries and employee benefits and mortgage interest)........ 4217 26,680 7.b.
c. Other noninterest expense*.............................................. 4092 128,628 7.c.
----------------------
d. Total noninterest expense (sum of items 7.a through 7.c)................ ////////////////////// RIAD 4093 250,873
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)......... ////////////////////// RIAD 4301 179,552 8.
9. Applicable income taxes (on item 8)........................................ ////////////////////// RIAD 4302 49,565 9.
----------------------
10. Income (loss) before extraordinary items and other adjustments //////////////////////
----------------------
(item 8 minus 9)........................................................... ////////////////////// RIAD 4300 129,987 10.
---------------------------------------------
</TABLE>
- --------------
*Describe on Schedule RI-E--Explanations.
4
<PAGE>
Legal Title of Bank: Wachovia Bank of North Caroline, N.A. Call Date: 6/30/93
Address: P.O. Box 3099 ST-BK: 37-2230
City, State Zip: Winston-Salem, NC 27102-3099 FFIEC 031
FDIC Certificate No.: 00817 Page RI-3
-----
Schedule RI--Continued
<TABLE>
<CAPTION>
--------------------
Year-to-date
--------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
11. Extraordinary items and other adjustments: /////////////////
a. Extraordinary items and other adjustments, gross of income taxes* . 4310 0 11.a.
b. Applicable income taxes (on item 11.a)* ........................... 4315 0 11.b.
c. Extraordinary items and other adjustments, net of income taxes ///////////////// --------------------------
(item 11.a minus 11.b) ............................................ ///////////////// RIAD 4320 0 11.c.
12. Net income (loss) (sum of items 10 and 11.c) ......................... ///////////////// RIAD 4340 129,987 12.
---------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Memoranda Year-to-date
---------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
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 173 M.1.
2. Not applicable ................................................................................ ///////////////////
3. Estimated foreign tax credit included in applicable income taxes, items 9 and 11.b above ....... 4309 126 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 37,581 M.4.
5. Number of full-time equivalent employees on payroll at end of current period (round to //// Number
nearest whole number) ......................................................................... 4150 5,235 M.5.
---------------------
</TABLE>
Schedule RI-A--Changes in Equity Capital
<TABLE>
<CAPTION>
Indicate decreases and losses in parentheses.
----------
1483
---------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Total equity capital originally reported in the December 31, 1992, Reports of Condition ///////////////////
and Income ..................................................................................... 3215 1,306,849 1.
2. Equity capital adjustments from amended Reports of Income, net* ................................ 3216 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) ........................... 3217 1,306,849 3.
4. Net income (loss) (must equal Schedule RI, item 12) ............................................ 4340 129,987 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net ............................. 4346 720 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 60,685 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 items 5, 7, or 8 above) ....... 4415 2,860 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal Schedule RC, ///////////////////
item 28) ....................................................................................... 3210 1,379,731 14.
--------------------
</TABLE>
- -----------
*Describe on Schedule RI-E--Explanations.
5
<PAGE>
Legal Title of Bank: Wachovia Bank of North Carolina, N.A. Call Date: 6/30/93
Address: P.O. Box 3099 ST-BK: 37-2230
City, State Zip: Winston-Salem, NC 27102-3099 FFIEC 031
FDIC Certificate No.: 00817 Page RI-4
Schedule RI-B--Charge-offs and Recoveries and Changes
in Allowance for Loan Lease Losses
Part I. Charge-offs and Recoveries on Loans and Leases
Part I excludes charge-offs and recoveries through
the allocated transfer risk reserve.
<TABLE>
<CAPTION>
--------
1486
--------------------------------------------
(Column A) (Column B)
Charge-offs Recoveries
--------------------------------------------
calendar year-to-date
--------------------------------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate: //////////////////// /////////////////////
a. To U.S. addressees (domicile)........................................ 4651 2,236 4661 507 1.a.
b. To non-U.S. addresees (domicile)..................................... 4652 0 4662 0 1.b.
2. Loans to depository institutions and acceptances of other banks: //////////////////// /////////////////////
a. To U.S. banks and other U.S. depository institutions................. 4653 0 4663 0 2.a.
b. To foreign banks..................................................... 4654 0 4664 15 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 1,491 4617 1,882 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 619 4666 212 5.a.
b. Other (includes single payment, installment, and all student loans).. 4657 1,739 4667 505 5.b.
6. Loans to foreign governments and official institutions.................. 4643 0 4627 0 6.
7. All other loans......................................................... 4644 0 4628 0 7.
8. Leases financing receivables: //////////////////// /////////////////////
a. Of U.S. addressees (domicile)........................................ 4658 105 4668 54 8.a.
b. Of non-U.S. addressees (domicle)......................................4659 0 4669 0 8.b.
9. Total (sum of items 1 through 8)........................................ 4635 6,190 4605 3,175 9.
--------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------
Cumulative Cumulative
Charge-offs Recoveries
Jan. 1, 1986 Jan. 1, 1986
Memoranda through through
Dollar Amounts in Thousands Dec. 31, 1989 Report Date
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
To be completed by national banks only. RIAD Bil Mil Thou RIAD Bil Mil Thou
--------------------- ----------------------
1. Charge-offs and recoveries of Special-Category Loans, as defined for //////////////////// //////////////////////
this Call Report by the Comptroller of the Currency.................... //////////////////// 4784 2,481 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. ---------------------------------------------
2. Loans to finance commercial real estate, construction, and land RIAD Bil Mil Thou RIAD Bil Mil Thou
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 1, item 1, above): //////////////////// /////////////////////
a. Construction and land development.................................... 3582 0 3583 54 M.3.a.
b. Secured by farmland.................................................. 3584 16 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 19 5412 6 M.3.c.(1)
(2) All other loans secured by 1-4 family residential properties..... 5413 158 5414 21 M.3.c.(2)
d. Secured by mutlifamily (5 or more) residential properties............ 3588 32 3589 0 M.3.d.
e. Secured by nonfarm nonresidential properties......................... 3590 2,011 3591 426 M.3.e.
---------------------------------------------
</TABLE>
6
<PAGE>
Schedule RI-B--Continued
Part II. Changes in Allowance for Loan and Lease Losses and in Allocated
Transfer Risk Reserve
<TABLE>
<CAPTION>
-------------------------------------
(Column A) (Column B)
Allowance for Allocated
Loan and Lease Transfer Risk
Losses Reserve
-------------------------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Balance originally reported in the December 31, 1992, Reports of ///////////////// /////////////////
Condition and Income........................................................ 3124 114,078 3131 0 1.
2. Recoveries (column A must equal part I, item 9, column B above)............. 4605 3,175 3132 0 2.
3. LESS: Charge-offs (column A must equal part I, item 9, column A above)...... 4635 6,190 3133 0 3.
4. Provision (column A must equal Schedule RI, item 4.a; column B must equal ///////////////// /////////////////
Schedule RI, item 4.b)...................................................... 4230 5,945 4243 0 4.
5. Adjustments* (see instructions for this schedule)........................... 4815 0 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 117,008 3128 0 6.
-------------------------------------
</TABLE>
__________
*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.
<TABLE>
<CAPTION>
----
1489
---------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Federal..................................................................... 4780 N/A 1.
2. State and local............................................................. 4790 N/A 2.
3. Foreign..................................................................... 4795 N/A 3.
4. Total (sum of items 1 through 3) (must equal sum of Schedule RI, items 9 and /////////////////////
11.b)....................................................................... 4770 N/A 4.
5. Deferred portion of item 4................................ RIAD 4772 N/A ///////////////////// 5.
---------------------
</TABLE>
7
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RI-6
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
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
<TABLE>
<CAPTION>
--------
1492
------------
Year-to-date
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and Agreement //////////////////
subsidiaries, and IBFs: //////////////////
a. Interest income booked................................................ 4837 N/A 1.a.
b. Interest expense booked............................................... 4838 N/A 1.b.
c. Net interest income booked at foreign offices, Edge and Agreement //////////////////
subsidiaries, and IBFs (item 1.a minus 1.b)............................ 4839 N/A 1.c.
2. Adjustments for booking location of international operations: //////////////////
a. Net interest income attributable to international operations booked at //////////////////
domestic offices........................................................ 4840 N/A 2.a.
b. Net interest income attributable to domestic business booked at foreign //////////////////
offices................................................................. 4841 N/A 2.b.
c. Net booking location adjustment (item 2.a minus 2.b).................... 4842 N/A 2.c.
3. Noninterest income and expense attributable to international operations: //////////////////
a. Noninterest income attributable to international operations............. 4097 N/A 3.a.
b. Provision for loan and lease losses attributable to international //////////////////
operations.............................................................. 4235 N/A 3.b.
c. Other noninterest expense attributable to international operations...... 4239 N/A 3.c.
d. Net noninterest income (expense) attributable to international operations //////////////////
(item 3.a minus 3.b and 3.c)............................................. 4843 N/A 3.d.
4. Estimated pretax income attributable to international operations before //////////////////
capital allocation adjustment (sum of items 1.c, 2.c, and 3.d).............. 4844 N/A 4.
5. Adjustment to pretax income for internal allocations to international //////////////////
operations to reflect the effects of equity capital on overall bank funding //////////////////
costs....................................................................... 4845 N/A 5.
6. Estimated pretax income attributable to international operations after //////////////////
capital allocation adjustment (sum of items 4 and 5)........................ 4846 N/A 6.
7. Income taxes attributable to income from international operations as //////////////////
estimated in item 6......................................................... 4797 N/A 7.
8. Estimated net income attributable to international operations (item 6 minus //////////////////
7).......................................................................... 4341 N/A 8.
-------------------
</TABLE>
<TABLE>
<CAPTION>
Memoranda
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Intracompany interest income included in item 1.a above..................... 4847 N/A M.1.
2. Intracompany interest expense included in item 1.b above.................... 4848 N/A M.2.
------------------
</TABLE>
Part II. Supplementary Details on Income from International Operations Required
by the Departments of Commerce and Treasury for Purposes of the U.S.
International Accounts and the U.S. National Income and Product Accounts
<TABLE>
<CAPTION>
--------------
Year-to-date
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income booked at IBFs............................................... 4849 N/A 1.
2. Interest expense booked at IBFs.............................................. 4850 N/A 2.
3. Noninterest income attributable to international operations booked at /////////////////
domestic offices (excluding IBFs): /////////////////
a. Gains (losses) and extraordinary items.................................... 5491 N/A 3.a.
b. Fees and other noninterest income......................................... 5492 N/A 3.b.
4. Provision for loan and lease losses attributable to international operations /////////////////
booked at domestic offices (excluding IBFs).................................. 4852 N/A 4.
5. Other noninterest expense attributable to international operations booked at /////////////////
domestic offices (excluding IBFs)............................................ 4853 N/A 5.
------------------
</TABLE>
8
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RI-7
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RI-E-Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedules RI-A and RI-B, all extraordinary items and
other adjustments in Schedule RI, and all significant items of other noninterest
income and other noninterest expense in Schedule RI. (See instructions for
details.)
<TABLE>
<CAPTION>
------
1495
------------
Year-to-date
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- --------------------------------------------------------------------
<S> <C> <C> <C>
1. All other noninterest income (from Schedule /////////////////
RI, item 5.f.(2)) /////////////////
Report amounts that exceed 10% of Schedule /////////////////
RI, item 5.f.(2): /////////////////
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 other /////////////////
amounts that exceed 10% of Schedule RI, /////////////////
item 5.f.(2): /////////////////
d. TEXT 4461 Service Fees charged to affiliates 4461 28,631 1.d.
--------------------------------------------
e. TEXT 4462 4462 1.e.
--------------------------------------------
f. TEXT 4463 4463 1.f.
--------------------------------------------
2. Other noninterest expense (from Schedule RI, /////////////////
item 7.c): /////////////////
a. Amortization expense of intangible assets....4531 64 2.a.
Report amounts that exceed 10% of Schedule /////////////////
RI, item 7.c: /////////////////
b. Net losses on other real estate owned........5418 0 2.b.
c. Net losses on sales of loans.................5419 0 2.c.
d. Net losses on sales of premises /////////////////
and fixed assets................................5420 0 2.d.
Itemize and describe the three largest other /////////////////
amounts that exceed 10% of Schedule RI, /////////////////
item 7.c: /////////////////
e. TEXT 4464 Service Fees Paid to Affiliates 4464 78,130 2.e.
--------------------------------------------
f. TEXT 4467 FDIC Insurance and OCC /////////////////
Examination Fees 4467 13,338 2.f.
--------------------------------------------
g. TEXT 4468 4468 2.g.
--------------------------------------------
3. Extraordinary items and other adjustments (from /////////////////
Schedule RI, item 11.a) and applicable income /////////////////
tax effect (from Schedule RI, item 11.b) /////////////////
(itemize and describe all extraordinary items /////////////////
and other adjustments): /////////////////
a. (1) TEXT 4469 4469 3.a.(1)
----------------------------------------
(2) Applicable income tax effect RIAD 4486 3.a.(2)
-----------
b. (1) TEXT 4487 4487 3.b.(1)
----------------------------------------
(2) Applicable income tax effect RIAD 4488 3.b.(2)
-----------
c. (1) TEXT 4489 4489 3.c.(1)
----------------------------------------
(2) Applicable income tax effect RIAD 4491 3.c.(2)
---------
4. Equity capital adjustments from amended Reports /////////////////
of Income (from Schedule RI-A, item 2) /////////////////
(itemize and describe all adjustments): /////////////////
a. TEXT 4492 4492 4.a.
---------------------------------------------
b. TEXT 4493 4493 4.b.
---------------------------------------------
5. Cumulative effect of changes in accounting /////////////////
principles from prior years (from Schedule /////////////////
RI-A, item 9) (itemize and describe all changes /////////////////
in accounting principles): /////////////////
a. TEXT 4494 4494 5.a.
---------------------------------------------
b. TEXT 4495 4495 5.b.
---------------------------------------------
6. Corrections of material accounting errors from /////////////////
prior years (from Schedule RI-A, item 10) /////////////////
(itemize and describe all corrections): /////////////////
a. TEXT 4496 4496 6.a.
---------------------------------------------
b. TEXT 4497 4497 6.b.
----------------------------------------------------------------------
</TABLE>
9
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RI-8
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
---------
Schedule RI-E--Continued
<TABLE>
<CAPTION>
Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
7. Other transactions with parent holding company /////////////////////
(from Schedule RI-A,item 13) (itemize and describe /////////////////////
all such transactions): /////////////////////
a. TEXT 4498 Capital Contribution from parent company 4498 2,860 7.a.
-------------------------------------------------------------------
b. TEXT 4499 4499 7.b.
-------------------------------------------------------------------
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, /////////////////////
part II, item 5) (itemize and describe all adjustments): /////////////////////
a. TEXT 4521 4521 8.a.
--------------------------------------------------------------------
b. TEXT 4522 4522 8.b.
-----------------------------------------------------------------------------------------------------------------------
9. Other explanations (the space below is provided for the bank to briefly
describe, at its option, any other significant items affecting the Report of
Income): 1489 1499 -
--------------------
No comment (RIAD 4769)
--
Other explanations (please type or print clearly):
(TEXT 4769)
</TABLE>
10
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-1
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for June 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
<TABLE>
<CAPTION>
C400
----
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------------
- --
<S> <C> <C> <C>
ASSETS /////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): /////////////////
a. Noninterest-bearing balances /////////////////
and currency and coin(1).................................................. 0081 1,226,903
1.a.
b. Interest-bearing balances(2).............................................. 0071 95,000
1.b.
2. Securities (from Schedule RC-B).............................................. 0390 3,996,501 2.
3. Federal funds sold and securities /////////////////
purchased under agreements to resell in /////////////////
domestic offices of the bank and of its /////////////////
Edge and Agreement subsidiaries, and in /////////////////
IBFs: /////////////////
a. Federal funds sold........................................................ 0276 1,000,825
3.a.
b. Securities purchased under agreements to resell........................... 0277 0
3.b.
4. Loans and lease financing receivables: /////////////////
a. Loans and leases, net of unearned income ----------------------
(from Schedule RC-C) RCFD 2122 10,741,823 /////////////////
4.a.
b. LESS: Allowance for loan and lease losses.............................. RCFD 3123 117,008 /////////////////
4.b.
c. LESS: Allocated transfer risk reserve.................................. RCFD 3128 0 /////////////////
4.c.
---------------------- /////////////////
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)...................................... 2125 10,624,815
4.d.
5. Assets held in trading accounts.............................................. 2146 783,177 5.
6. Premises and fixed assets (including capitalized leases)..................... 2145 183,037 6.
7. Other real estate owned (from Schedule RC-M)................................. 2150 7,820 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 0 8.
9. Customers' liability to this bank on acceptance outstanding.................. 2155 222,700 9.
10. Intangible assets (from Schedule RC-M)...................................... 2143 1.622 10.
11. Other assets (from Schedule RC-F)........................................... 2160 482,951 11.
12. Total assets (sum of items 1 through 11).................................... 2170 18,625,351 12.
</TABLE>
- ----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
11
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-2
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC -- Continued
<TABLE>
<CAPTION>
-----------------------------
Dollar Amounts in Thousands ////////////// Bil Mil Thou
- ------------------------------------------------------------------------------------------ -----------------------------
<S> <C> <C> <C>
LIABILITIES ////////////////////////////
13. Deposits ////////////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I).. RCON 2200 10,694,289 13.a
----------------------------
(1) Noninterest-bearing(1)............................ RCON 6631 2,928,220 ////////////////////////////
13.a.(1)
(2) Interest-bearing................................... RCON 6636 7,766,069 ////////////////////////////
13.a.(2)
----------------------------
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, ////////////////////////////
part II)........................................................................... RCFN 2200 223,036 13.b
----------------------------
(1) Noninterest-bearing................................ RCFN 6631 5,404 ////////////////////////////
13.b.(1)
(2) Interest-bearing................................... RCFN 6636 217,632 ////////////////////////////
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 3,157,639 14.a.
b. Securities sold under agreements to repurchase.................................... RCFD 0279 774,304 14.b.
15. Demand notes issued to the U.S. Treasury.............................................. RCON 2840 110,000 15.
16. Other borrowed money.................................................................. RCFD 2850 1,828,361 16.
17. Mortgage indebtedness and obligations under capitalized leases........................ RCFD 2910 1,450 17.
18. Bank's liability on acceptances executed and outstanding.............................. RCFD 2920 222,700 18.
19. Subordinated notes and debentures..................................................... RCFD 3200 125,000 19.
20. Other liabilities (from Schedule RC-G)................................................ RCFD 2930 108,841 20.
21. Total liabilities (sum of items 13 through 20)........................................ RCFD 2948 17,245,620 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 51,360 24.
25. Surplus (exclude all surplus related to preferred stock).............................. RCFD 3839 98,585 25.
26. a. Undivided profits and capital reserves............................................. RCFD 3632 1,229,786 26.a.
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 1,379,731 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, ////////////////////////////
22, and 28)........................................................................... RCFD 3300 18,625,351 29.
-----------------------------
</TABLE>
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 Number
the bank by independent external auditors as of any --------------
date during 1992....................................... RCFD 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.
12
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-3
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-A--Cash and Balances Due From Depository Institutions
Exclude assets held in trading accounts.
<TABLE>
<CAPTION>
C4051
---------------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
--------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and currency and /////////////////// //////////////////////
coin..................................................................... 0022 1,156,880 ////////////////////// 1.
a. Cash items in process of collection and unposted debits............... ////////////////// 0020 1,015,623 1.a.
b. Currency and coin..................................................... ////////////////// 0080 141,257 1.b.
2. Balances due from depository institutions in the U.S..................... ////////////////// 0082 20,935 2.
a. U.S. branches and agencies of foreign banks (including their
IBFs)................................................................. 0083 0 ////////////////////// 2.a.
b. Other commercial banks in the U.S. and other depository institutions ////////////////// //////////////////////
in the U.S. (including their IBFs).................................... 0085 20,935 ////////////////////// 2.b.
3. Balances due from banks in foreign countries and foreign central banks... /////////////////// 0070 8,724 3.
a. Foreign branches of other U.S. banks.................................. 0073 10,000 ////////////////////// 3.a.
b. Other banks in foreign countries and foreign central banks............ 0074 93,724 ////////////////////// 3.b.
4. Balances due from Federal Reserve Banks.................................. 0090 40,364 0090 40,362 4.
5. Total (sum of items 1 through 4) (total of column A must equal Schedule /////////////////// //////////////////////
RC, item 1).............................................................. 0010 1,321,903 0010 1,226,901 5.
</TABLE>
<TABLE>
<CAPTION>
Memorandum Dollar Amounts in Thousands RCON Bil Mil Thou
---------------------------------------------------------------------------------------------------------------------------
<C> <C> <C>
1. Noninterest-bearing balances due from commercial banks in the U.S. //////////////////////
(included in item 2, column B above)..................................... 0050 20,935 M.1
</TABLE>
13
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-4
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-B--Securities
Exclude assets held in trading accounts.
<TABLE>
<CAPTION>
Consolidated Bank
--------------------------------------
(Column A) (Column B)
Book Value Market Value(1)
----------------- -----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Tho
- ------------------------------------------------------------------------------- ----------------- -----------------
<S> <C> <C> <C> <C>
1. U.S. Treasury securities.................................................... 0400 2,929,728 0401 3,067,974
2. U.S. Government agency and corporation obligations: ///////////////// ////////////////
a. All holdings of U.S. Government-issued or -guaranteed certificates of ///////////////// ////////////////
participation in pools of residential mortgages: ///////////////// ////////////////
(1) Issued by FNMA and FHLMC............................................. 3760 4,289 3761 5,020
(2) Guaranteed by GNMA (exclude FNMA and FHLMC issues)................... 3762 267,786 3763 289,743
b. All other................................................................ 0604 229,060 0605 230,314
(1) Collateralized mortgage obligations issued by FNMA and FHLMC (include ///////////////// ////////////////
REMICs).............................................................. ///////////////// ////////////////
(2) All other U.S. Government-sponsored agency obligations(2)............ ///////////////// ////////////////
(3) All other U.S. Government agency obligations(3)...................... ///////////////// ////////////////
3. Securities issued by states and political subdivisions in the U.S. ......... 0402 354,602 0403 402,204
a. General obligations...................................................... ///////////////// ////////////////
b. Revenue obligations...................................................... ///////////////// ////////////////
c. Industrial development and similar obligations........................... ///////////////// ////////////////
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
b. All other domestic debt securities: ///////////////// ////////////////
(1) Privately-issued collateralized mortgage obligations (include ///////////////// ////////////////
REMICs).............................................................. 5361 0 5362 0
(2) All other............................................................ 5363 206,344 5364 206,344
5. Foreign debt securities..................................................... 3635 0 3636 0
6. Equity securities: ///////////////// ////////////////
a. Marketable equity securities: ///////////////// ////////////////
(1) Investments in mutual funds.......................................... 3637 0 3638 0
(2) Other marketable equity securities................................... 3639 194 3640 2,956
(3) LESS: Net unrealized loss on marketable equity securities............ 3641 0 ////////////////
b. Other equity securities (includes Federal Reserve stock)................. 3642 4,498 3643 4,498
7. Total (sum of items 1 through 6) (total of column A must equal Schedule RC, ///////////////// ////////////////
item 2)..................................................................... 0390 3,996,501 0391 4,209,053
</TABLE>
<TABLE>
<CAPTION>
C410
----
Domestic Offices
------------------
(Column C)
Book value
-----------------
RCON Bil Mil Thou
-----------------
<S> <C> <C> <C>
1. U.S. Treasury securities.................................................... 0400 2,929,728 1.
2. U.S. Government agency and corporation obligations: /////////////////
a. All holdings of U.S. Government-issued or -guaranteed certificates of /////////////////
participation in pools of residential mortgages: /////////////////
(1) Issued by FNMA and FHLMC............................................. 3760 4,289 2.a.(1)
(2) Guaranteed by GNMA (exclude FNMA and FHLMC issues)................... 3762 267,786 2.a.(2)
b. All other................................................................ ///////////////// 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 229,060 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. ......... ///////////////// 3.
a. General obligations...................................................... 3767 336,809 3.a.
b. Revenue obligations...................................................... 3768 17,793 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 4.a.
b. All other domestic debt securities: /////////////////
(1) Privately-issued collateralized mortgage obligations (include /////////////////
REMICs).............................................................. 5361 0 4.b.(1)
(2) All other............................................................ 5363 206,344 4.b.(2)
5. Foreign debt securities..................................................... 3635 0 5.
6. Equity securities: /////////////////
a. Marketable equity securities: /////////////////
(1) Investments in mutual funds.......................................... 3637 0 6.a.(1)
(2) Other marketable equity securities................................... 3639 194 6.a.(2)
(3) LESS: Net unrealized loss on marketable equity securities............ 3641 0 6.a.(3)
b. Other equity securities (includes Federal Reserve stock)................. 3642 4,498 6.b.
7. Total (sum of items 1 through 6) (total of column A must equal Schedule RC, /////////////////
item 2)..................................................................... 0390 3,996,501 7.
</TABLE>
- --------------------------
(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.
14
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-5
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-B--Continued
<TABLE>
<CAPTION>
-------------------
Consolidated Bank
-------------------
Book Value
-------------------
Memoranda Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------- -------------------
<S> <C> <C> <C>
1. Pledged securities............................................................................. 0416 1,613,844 M.1.
2. Maturity and repricing data for debt securities(1),(2) (excluding those in nonaccrual status): /////////////////
a. Fixed rate debt securities with a remaining maturity of: /////////////////
(1) Three months or less.................................................................... 0343 22,792 M.2.a.(1)
(2) Over three months through 12 months..................................................... 0344 322,911 M.2.a.(2)
(3) Over one year through five years........................................................ 0345 2,672,635 M.2.a.(3)
(4) Over five years......................................................................... 0346 680,901 M.2.a.(4)
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1) through 2.a.(4))...... 0347 3,699,239 M.2.a.(5)
b. Floating rate debt securities with a repricing frequency of: /////////////////
(1) Quarterly or more frequently............................................................ 4544 258,615 M.2.b.(1)
(2) Annually or more frequently, but less frequently than quarterly......................... 4545 33,955 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 292,570 M.2.b.(5)
c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal total /////////////////
debt securities from Schedule RC-B, sum of items 1 through 5, column A, minus /////////////////
nonaccrual debt securities included in Schedule RC-N, item 9, column C)..................... 0393 3,991,809 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 1,980 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 0 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 40,100 M.6.
------------------
</TABLE>
- -------------
(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.
15
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-6
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-C--Loans and Lease Financing Receivables
Part I. Loans and Leases
Do not deduct the allowance for loan and lease losses from
amounts reported in this schedule. Report total loans and
leases, net of unearned income. Exclude assets held in
trading accounts.
<TABLE>
<CAPTION>
------
C415
------------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
-------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate............................................. 1410 3,478,890 ////////////////// 1.
a. Construction and land development..................................... ////////////////// 1415 178,253 1.a.
b. Secured by farmland (including farm residential and other ////////////////// //////////////////
improvements)......................................................... ////////////////// 1420 62,792 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 312,839 1.c.(1)
(2) All other loans secured by 1-4 family residential properties: ////////////////// //////////////////
(a) Secured by first liens........................................ ////////////////// 5367 1,381,761
1.c.(2)(a)
(b) Secured by junior liens....................................... ////////////////// 5368 32,379
1.c.(2)(b)
d. Secured by multifamily (5 or more) residential properties............ ////////////////// 1460 186,346 1.d.
e. Secured by nonfarm nonresidential properties.......................... ////////////////// 1480 1,324,520 1.e.
2. Loans to depository institutions: ////////////////// //////////////////
a. To commercial banks in the U.S. ...................................... ////////////////// 1505 219,596 2.a.
(1) To U.S. branches and agencies of foreign banks.................... 1506 0 ////////////////// 2.a.(1)
(2) To other commercial banks in the U.S. ............................ 1507 228,542 ////////////////// 2.a.(2)
b. To other depository institutions in the U.S. ......................... 1517 2,450 1517 2,450 2.b.
c. To banks in foreign countries......................................... ////////////////// 1510 428 2.c.
(1) To foreign branches of other U.S. banks........................... 1513 428 ////////////////// 2.c.(1)
(2) To other banks in foreign countries............................... 1516 0 ////////////////// 2.c.(2)
3. Loans to finance agricultural production and other loans to farmers...... 1590 92,755 1590 92,755 3.
4. Commercial and industrial loans: ////////////////// //////////////////
a. To U.S. addressees (domicile)......................................... 1763 3,077,624 1763 3,077,624 4.a.
b. To non-U.S. addressees (domicile)..................................... 1764 49,486 1764 49,486 4.b.
5. Acceptances of other banks: ////////////////// //////////////////
a. Of U.S. banks......................................................... 1756 0 1756 0 5.a.
b. Of foreign banks...................................................... 1757 0 1757 0 5.b.
6. Loans to individuals for household, family, and other personal ////////////////// //////////////////
expenditures (i.e., consumer loans) (includes purchased paper)........... ////////////////// 1975 1,961,620 6.
a. Credit cards and related plans (includes check credit and other ////////////////// //////////////////
revolving credit plans)............................................... 2008 197,473 ////////////////// 6.a.
b. Other (includes single payment, installment, and all student loans)... 2011 1,764,147 ////////////////// 6.b.
7. Loans to foreign governments and official institutions (including ////////////////// //////////////////
foreign central banks)................................................... 2081 0 2081 0 7.
8. Obligations (other than securities and leases) of states and political ////////////////// //////////////////
subdivisions in the U.S. (includes nonrated industrial development ////////////////// //////////////////
obligations): ////////////////// //////////////////
a. Taxable obligations................................................... 2033 40,938 2033 40,938 8.a.
b. Tax-exempt obligations................................................ 2079 217,953 2079 217,953 8.b.
9. Other loans.............................................................. 1563 1,536,249 ////////////////// 9.
a. Loans for purchasing or carrying securities (secured and unsecured).... ////////////////// 1545 2,705 9.a.
b. All other loans (exclude consumer loans).............................. ////////////////// 1564 1,533,544 9.b.
10. Lease financing receivables (net of unearned income)..................... ////////////////// 2165 54,888 10.
a. Of U.S. addressees (domicile)......................................... 2182 54,888 ////////////////// 10.a.
b. Of non-U.S. addressees (domicile)..................................... 2183 0 ////////////////// 10.b.
11. LESS: Any unearned income on loans reflected in items 1-9 above.......... 2123 0 ////////////////// 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 10,741,823 2122 10,732,877 12.
---------------------------------------
</TABLE>
16
<PAGE>
Legal Title of Bank: Wachovia Bank of Call Date: 6/30/93 ST-BK: 37-2230
North Carolina, N.A. FFIEC 031
Address: P.O. Box 3099 Page RC-7
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
---------
Schedule RC-C--Continued
Part I. Continued
<TABLE>
<CAPTION>
------------------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
-----------------------------------------------
Memoranda
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------ -----------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Commercial paper included in Schedule RC-C, part I, above................... 1496 75,000 1496 75,000
M.1.
2. Loans and Leases restructured and in compliance with modified terms ////////////////// //////////////////
(included) in Schedule RC-C, part I, above): ////////////////// //////////////////
a. Loans secured by real estate: ////////////////// //////////////////
(1) To U.S. addresses (domicile)......................................... 1687 105 M.2.a.(1)
(2) To non-U.S. addresses (domicile)..................................... 1689 0 M.2.a.(2)
b. Loans to finance agricultural production and other Loans to farmers...... 1613 0 M.2.b
c. Commercial and industrial loans: ////////////////// //////////////////
(1) To U.S. addresses (domicile)......................................... 1758 0 M.2.c.(1)
(2) To non-U.S. addresses (domicile)..................................... 1759 0 M.2.c.(2)
d. All other loans (exclude loans to individuals for household, family, and //////////////////
other personal expenditures)............................................. 1615 0 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 105 M.2.f.
3. Maurity 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 1,675,408 M.3.a.(1)
(2) Over three months through 12 months................................... 0349 483,642 M.3.a.(2)
(3) Over one year through five years...................................... 0356 2,100,183 M.3.a.(3)
(4) Over five years....................................................... 0357 1,522,720 M.3.a.(4)
(5) Total fixed rate loans and leases (sum of Memorandum items 3.a.(1) //////////////////
through 3.a.(4))...................................................... 0358 5,781,953 M.3.a.(5)
b. Floating rate loans with a repricing frequency of: //////////////////
(1) Quarterly or more frequently.......................................... 4554 4,647,039 M.3.b.(1)
(2) Annually or more frequently, but less frquently than quarterly........ 4555 95,026 M.3.b.(2)
(3) Every five years or more frequently, but less frequently than //////////////////
annually.............................................................. 4561 72,446 M.3.b.(3)
(4) Less frequently than every five years................................. 4564 62,122 M.3.b.(4)
(5) Total floating rate loans (sum of Memorandum items 3.b.(1) //////////////////
through 3.b.(4))...................................................... 4567 4,876,633 M.3.b.(5)
c. Total loans and leases (sum of Memorandum items 3.a.(5) and 3.b.(5)) (must //////////////////
equal the sum of total loans and leases, net from Schedule RC-C, part I, //////////////////
item 12, plus unearned income from Schedule RC-C, part I, item 11, minus //////////////////
total nonaccrual loans and leases from Schedule RC-N, sum of items 1 //////////////////
through 8, column C)...................................................... 1479 10,658,586 M.3.c.
4. Loans to finance commercial real estate, construction, and land development //////////////////
activities (not secured by real estate) included in Schedule RC-C, part I, //////////////////
items 4 and 9, column A, page RC-6(2)........................................ 2746 5,814 M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, above).... 5369 219,965 M.5.
6. Adjustable rate closed-end loans secured by first liens on 1-4 family --------------------
residential properties (included in Schedule RC-C, part I, item 1.c.(2)(a), ////////////////// RCON Bil Mil Thou
--------------------
column B, page RC-6)......................................................... ////////////////// 5370 163,651
M.6.
</TABLE>
- ---------------------
(1) Memorandum item 3 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
(2) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, item 1, column A.
17
<PAGE>
Schedule RC-C--Continued
Part II. Loans to Small Business 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.
<TABLE>
<CAPTION>
Loans to Small Businesses
<S> <C> <C> <C>
1. Indicate in the appropriate box at the right whether all or substantially all of the all "loans
secured by nonfarm nonresidential properties" in domestic offices reported in Schedule RC-C, ---------
part 1, item 1.e, column B, and "Commercial and industrial loans to U.S. addresses" in domestic C418
---------------
offices reported in Schedule RC-C, part 1, item 4.a, column B, have original amounts of $100,000 YES NO
---------------------
or less........................................................................................... 6999 /// X 1.
---------------------
</TABLE>
If YES, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5.
If NO, skip items 2.a and 2.b, complete items 3 and 4 below, and go to item 5.
<TABLE>
<CAPTION>
--------------------
2. Report the total number of loans currently outstanding for each of the Number of Loans
-------------------
following Schedule RC-C, part I, loan categories: RCON//////////////
----
<S> <C> <C> <C>
a. "Loans secured by nonfarm nonresidential properties" in domestic //////////////////
offices reported in Schedule RC-C, part I, item 1.e, column B........... 5562 N/A 2.a.
b. "Commercial and industrial loans to U.S. addresses" in domestic offices //////////////////
reported in Schedule RC-C, part 1, item 4.a, column B................... 5563 N/A 2.b.
--------------------
</TABLE>
<TABLE>
<CAPTION>
-------------------------------------------
(Column A) (Column B)
Amount
Currently
Number of Loans Outstanding
-------------------- ----------------------
Dollar Amounts in Thousands RCON/////////////// RCON Bil Mil Thou
------------------------------------------------------------------------------ -------------------------------------------
<S> <C> <C> <C> <C> <C>
3. Number and amount currently outstanding of "Loans secured by nonfarm ///////////////////////////////////////
nonresidential properties" (in domestic offices reported in Schedule RC-C, ///////////////////////////////////////
part I, item 1.e, column B (sum of items 3.a through 3.c must be less than ///////////////////////////////////////
or equal to Schedule RC-C, part I, item 1.e, column B): ///////////////////////////////////////
a. With original amounts of $100,000 or less................................ 5564 1,425 5565 116,031 3.a.
b. With original amounts of more than $100,000 throughj $250,000............ 5566 1,053 5567 192,870 3.b.
c. With original amounts of more than $250,000 through $1,000,000........... 5568 837 5569 421,228 3.c.
4. Number and amount currently outstanding of "Commercial and industrial ///////////////////////////////////////
loans to U.S. addresses" in domestic offices reported in Schedule RC-C, ///////////////////////////////////////
part I, item 4.a, column B (sum of item 4.a through 4.c must be less than ///////////////////////////////////////
or equal to Schedule RC-C, part I, item 4.a, column B): ///////////////////////////////////////
a. With original amounts of $100,000 or less................................ 5570 8,097 5571 242,508 4.a.
b. With original amounts of more than $100,000 through $250,000............. 5572 606 5573 142,350 4.b.
c. With original amounts of more than $250,000 through $1,000,000........... 5574 370 5575 288,543 4.c.
-------------------------------------------
</TABLE>
17a
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-7b
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-C--Continued
Part II. Continued
<TABLE>
<CAPTION>
Agricultural Loans to Small Farms
<S> <C> <C> <C>
5. Indicate in the appropriate box at the right whether all or substantially all
of the bank's "Loans secured by farmland (including farm residential and other
improvements)" in domestic offices reported in Schedule RC-C, part I, item 1.b, column
B, and "Loans to finance agricultural production and other loans to farmers" in YES NO
domestic offices reported in Schedule RC-C, part I, item 3, column B, have ----------------------
original amounts of $100,000 or less............................................ 6860 /// x 5.
----------------------
</TABLE>
If YES, complete 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.
<TABLE>
<S> <C> <C> <C>
------------------
6. Report the total number of loans currently outstanding for each of the RCON//////////////
following Schedule RC-C, part I, loan categories: //////////////////
a. "Loans secured by farmland (including farm residential and other //////////////////
improvements)" in domestic offices reported in Schedule RC-C, part I, item 1.b, //////////////////
column B........................................................................ 5576 N/A 6.a.
b. "Loans to finance agricultural production and other loans to farmers" in //////////////////
domestic offices reported in Schedule RC-C, part I, item 3, column B............ 5577 N/A 6.b.
------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------
(Column A) (Column B)
Amount
Currently
Number of Loans Outstanding
--------------------------------------
Dollar Amounts in Thousands RCON ///////////// RCON Bil Mil Thou
- ------------------------------------------------------------------------------------- ------------------
<S> <C> <C> <C> <C> <C>
7. Number and amount currently outstanding of "Loans secured by farmland
(including farm residential and other improvements)" in domestic offices
reported in Schedule RC-C, part I, item 1.b, column B (sum of items 7.a
through 7.c must be less than or equal to Schedule RC-C, part I, item 1.b,
column B):
a. With original amounts of $100,000 or less............................... 5578 315 5579 12,235 7.a.
b. With original amounts of more than $100,000 through $250,000............ 5580 119 5581 14,516 7.b.
c. With original amounts of more than $250,000 through $500,000............ 5582 40 5583 12,783 7.c.
8. Number and amount currently outstanding of "Loans to finance agricultural //////////////////////////////////////
production and other loans to farmers" in domestic offices reported in //////////////////////////////////////
Schedule RC-C, part I, item 3, column B (sum of items 8.a through 8.c //////////////////////////////////////
must be less than or equal to Schedule RC-C, part I, item 3, column B): //////////////////////////////////////
a. With original amounts of $100,000 or less............................... 5584 1,610 5585 58,358 8.a.
b. With original amounts of more than $100,000 through $250,000............ 5586 67 5587 15,158 8.b.
c. With original amounts of more than $250,000 through $500,000............ 5588 10 5589 7,508 8.c.
--------------------------------------
</TABLE>
17b
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-8
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
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
Domestic Offices Only
<TABLE>
<CAPTION>
--------
C420
--------- --------
Domestic Offices
------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ----------------------------------------------------------------------------------- ------------------
<S> <C> <C> <C>
1. U.S. Treasury securities........................................................ 1010 735 1.
2. U.S. Government agency and corporation obligations.............................. 1020 146,348 2.
3. Securities issued by states and political subdivisions in the U.S. ............. 1025 16,648 3.
4. Other bonds, notes, and debentures.............................................. 1045 0 4.
5. Certificates of deposit......................................................... 1026 0 5.
6. Commercial paper................................................................ 1027 900 6.
7. Banker's acceptances............................................................ 1028 86,960 7.
8. Other........................................................................... 1029 531,586 8.
9. Total (sum of items 1 through 8)................................................ 2146 783,177 9.
------------------
</TABLE>
18
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-9
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-E--Deposit Liabilities
Part I. Deposits in Domestic Offices
<TABLE>
<CAPTION>
Transaction Accounts
--------------------
(Column A) (Column B)
Total transaction Memo: Total
accounts (including demand deposits
total demand (included in
deposits) column A
------------------ -----------------
Dollar Amounts in Thousands RCON Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------- ------------------ -----------------
<S> <C> <C> <C> <C>
Deposits of: ////////////////// /////////////////
1. Individuals, partnerships, and corporations................................. 2201 3,701,655 2240 2,497,503
2. U.S. Government............................................................. 2202 18,649 2280 18,649
3. States and political subdivisions in the U.S. .............................. 2203 129,622 2290 71,535
4. Commercial banks in the U.S. ............................................... 2206 87,858 2310 87,858
a. U.S. branches and agencies of foreign banks.............................. ////////////////// /////////////////
b. Other commercial banks in the U.S. ...................................... ////////////////// /////////////////
5. Other depository institutions in the U.S. .................................. 2207 99,459 2312 99,459
6. Banks in foreign countries.................................................. 2213 7,921 2320 7,921
a. Foreign branches of other U.S. banks..................................... ////////////////// /////////////////
b. Other banks in foreign countries......................................... ////////////////// /////////////////
7. Foreign governments and official institutions ////////////////// /////////////////
(including foreign central banks)........................................... 2216 0 2300 0
8. Certified and official checks............................................... 2330 64,575 2330 64,575
9. Total (sum of items 1 through 8) (sum of ////////////////// /////////////////
columns A and C must equal Schedule RC, ////////////////// /////////////////
item 13.a).................................................................. 2215 4,109,739 2210 2,847,500
</TABLE>
<TABLE>
<CAPTION>
C425
Nontransaction
Accounts
------------------
(Column C)
Total
nontransaction
accounts
(including MMDAs)
------------------
<S> <C> <C> <C>
Deposits of: //////////////////
1. Individuals, partnerships, and corporations................................. 2346 6,459,725 1.
2. U.S. Government............................................................. 2520 68 2.
3. States and political subdivisions in the U.S. .............................. 2530 124,126 3.
4. Commercial banks in the U.S. ............................................... ////////////////// 4.
a. U.S. branches and agencies of foreign banks.............................. 2347 0 4.a.
b. Other commercial banks in the U.S. ...................................... 2348 0 4.b.
5. Other depository institutions in the U.S. .................................. 2349 631 5.
6. Banks in foreign countries.................................................. ////////////////// 6.
a. Foreign branches of other U.S. banks..................................... 2367 0 6.a.
b. Other banks in foreign countries......................................... 2373 0 6.b.
7. Foreign governments and official institutions //////////////////
(including foreign central banks)........................................... 2377 0 7.
8. Certified and official checks............................................... ////////////////// 8.
9. Total (sum of items 1 through 8) (sum of //////////////////
columns A and C must equal Schedule RC, //////////////////
item 13.a).................................................................. 2385 6,584,550 9.
</TABLE>
<TABLE>
<CAPTION>
Memoranda Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
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 818,183 M.1.a.
b. Total brokered deposits.................................................. 2365 110,051 M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above): ////////////////////
(1) Issued in denominations of less than $100,000....................... 2343 0 M.1.c.(1)
(2) Issued either in denominations of $100,000 or in denominations greater ////////////////////
than $100,000 and participated out by the broker in shares of ////////////////////
$100,000 or less..................................................... 2344 0 M.1.c.(2)
d. Total deposits denominated in foreign currencies......................... 3776 21,269 M.1.d.
e. Preferred deposits....................................................... 5590 250,663 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 1,873,393 M.2.a.(1)
(2) Other savings deposits (excludes MMDAs)............................... 0352 1,052,346 M.2.a.(2)
b. Total time deposits of less than $100,000................................. 6648 2,550,733 M.2.b.
c. Time certificates of deposit of $100,000 or more.......................... 6645 1,027,878 M.2.c.
d. Open-account time deposits of $100,000 or more............................ 6646 80,200 M.2.d.
3. All NOW accounts (included in column A above)................................ 2398 1,262,239 M.3.
</TABLE>
19
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-10
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-E -- Continued
Part I. Continued
Memoranda (continued)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
- --
Deposit Totals for FDIC Insurance Assessments(1)
------------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- --------------------------------------------------------------------------------------------- ------------------------
<S> <C> <C> <C>
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 10,694,289 M.4.
////////////////////////
a. Total demand deposits (must equal item 9, column B)................................... 2210 2,847,500 M.4.a.
b. Total time and savings deposits(2) (must equal item 9, column A plus item 9, ////////////////////////
column C minus item 9, column B)...................................................... 2350 7,846,789 M.4.b.
------------------------
</TABLE>
- ---------------------------------
(1) An amended Certified Statement should be submitted to the FDIC if the
deposit totals reported in this item are amended after the semiannual
Certified Statement originally covering this report date has been filed
with the FDIC.
(2) For FDIC insurance assessment purposes, "total time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
<TABLE>
<CAPTION>
------------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- --------------------------------------------------------------------------------------------- ------------------------
<S> <C> <C> <C>
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 1,288,767 M.5.a.
b. Over three months through 12 months (but not over 12 months)........................... 3644 990,730 M.5.b.
6. Maturity and repricing data for time certificates of deposit of $100,000 or more:(1) ////////////////////////
a. Fixed rate time certificates of deposit of $100,000 or more with a remaining ////////////////////////
maturity of: ////////////////////////
(1) Three months or less............................................................... 2761 635,574 M.6.a.(1)
(2) Over three months through 12 months................................................ 2762 269,013 M.6.a.(2)
(3) Over one year through five years................................................... 2763 85,919 M.6.a.(3)
(4) Over five years.................................................................... 2765 37,372 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 1,027,878 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 0 M.6.b.(1)
(2) Annually or more frequently, but less frequently than quarterly.................... 4569 0 M.6.b.(2)
(3) Every five years or more frequently, but less frequently than annually............. 4571 0 M.6.b.(3)
(4) Less frequently than every five years.............................................. 4572 0 M.6.b.(4)
(5) Total floating rate time certificates of deposit of $100,000 or more (sum of ////////////////////////
Memorandum items 6.b.(1) through 6.b.(4)).......................................... 4573 0 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 1,027,878 M.6.c.
------------------------
</TABLE>
- ---------------------------------
(1) Memorandum item 5 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
20
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-11
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-E--Continued
Part II. Deposits in Foreign Offices (including Edge and
Agreement subsidiaries and IBFs)
<TABLE>
<CAPTION>
--------------------
Dollar Amounts in Thousands RCFN Bil Mil Thou
- ---------------------------------------------------------------------------------------------- --------------------
<S> <C> <C> <C>
Deposits of: //////////////////
1. Individuals, partnerships, and corporations............................................... 2621 198,868 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks)............................ 2623 24,116 2.
3. Foreign banks (including U.S. branches and //////////////////
agencies of foreign banks, including their IBFs)........................................... 2625 52 3.
4. Foreign governments and official institutions (including foreign central banks)........... 2650 0 4.
5. Certified and official checks............................................................. 2330 0 5.
6. All other deposits........................................................................ 2668 0 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b)...................... 2200 223,036 7.
--------------------
</TABLE>
Schedule RC-F--Other Assets
<TABLE>
<CAPTION>
----------
C430
---------------------------
Dollar Amounts in Thousands /////////// Bil Mil Thou
- ---------------------------------------------------------------------------------------------- ---------------------------
<S> <C> <C> <C>
1. Income earned, not collected on loans..................................................... RCFD 2164 98,148 1.
2. Net deferred tax assets(1)................................................................ RCFD 2148 29,823 2.
3. Excess residential mortgage servicing fees receivable..................................... RCFD 5371 0 3.
4. Other (itemize amounts that exceed 25% of this item)...................................... RCFD 2168 354,980 4.
------------- ---------------------------
a. TEXT 3549 Corporate Owned Life Insurance RCFD 3549 125,319 //////////////////////// 4.a.
------------- ---------------------------------------------- ---------------------------
b. TEXT 3550 Accounts Receivable RCFD 3550 96,292 //////////////////////// 4.b.
------------- ---------------------------------------------- ---------------------------
c. TEXT 3551 RCFD 3551 //////////////////////// 4.c.
----------------------------------------------------------------------------------------
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11)........................ RCFD 2160 482,951
---------------------------- 5.
</TABLE>
Memorandum
<TABLE>
<CAPTION>
----------------------------
Dollar Amounts in Thousands /////////// Bil Mil Thou
- ---------------------------------------------------------------------------------------------- ----------------------------
<S> <C> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes............................ RCFD 5610 0 M.1.
----------------------------
</TABLE>
Schedule RC-G--Other Liabilities
<TABLE>
<CAPTION>
-----------
C435
---------------- -----------
Dollar Amounts in Thousands /////////// Bil Mil Thou
- ---------------------------------------------------------------------------------------------- ----------------------------
<S> <C> <C> <C>
1. a. Interest accrued and unpaid on deposits in domestic offices(2)......................... RCON 3645 13,192 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable) ............. RCFD 3646 65,719 1.b.
2. Net deferred tax liabilities(1)........................................................... RCFD 3049 0 2.
3. Minority interest in consolidated subsidiaries............................................ RCFD 3000 0 3.
4. Other (itemize amounts that exceed 25% of this item)...................................... RCFD 2938 29,930 4.
------------- ---------------------------
a. TEXT 3552 Deferred Income RCFD 3552 11,820 ///////////////////////// 4.a.
------------- -----------------------------------------------
b. TEXT 3553 Unearned Dealer Interest Contingency RCFD 3553 12,350 ///////////////////////// 4.b.
------------- -----------------------------------------------
c. TEXT 3554 RCFD 3554 ///////////////////////// 4.c.
-----------------------------------------------------------------------------------------
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20)......................... RCFD 2930 108,841 5.
-----------------------------
</TABLE>
- -------------
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) For savings banks, include "dividends" accrued and unpaid on deposits.
21
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-12
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
---------
Schedule RC-H--Selected Balance Sheet Items for Domestic Offices
<TABLE>
<CAPTION>
C440
------
Domestic Offices
---------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Customers' liability to this bank on acceptances outstanding................ 2155 222,700 1.
2. Bank's liability on acceptances executed and outstanding.................... 2920 222,700 2.
3. Federal funds sold and securities purchased under agreements to resell...... 1350 1,000,825 3.
4. Federal funds purchased and securities sold under agreements to repurchase.. 2800 3,931,943 4.
5. Other borrowed money........................................................ 2850 1,828,361 5.
EITHER ////////////////////
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs.. 2163 N/A 6.
OR ////////////////////
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs... 2941 118,198 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement ////////////////////
subsidiaries, and IBFs)..................................................... 2192 18,519,945 8.
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement ////////////////////
subsidiaries, and IBFs)..................................................... 3129 17,022,015 9.
</TABLE>
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
EITHER ///////////////////
1. Net due from the IBF of the domestic offices of the reporting bank.......... 3051 N/A M.1.
OR ///////////////////
2. Net due to the IBF of the domestic offices of the reporting bank............ 3059 N/A M.2.
</TABLE>
Schedule RC-I--Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices.
<TABLE>
<CAPTION>
C445
------
Dollar Amounts in Thousands RCFN Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Total IBF assets of the consolidated bank (component of Schedule RC, ////////////////////
item 12).................................................................... 2133 N/A 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, ////////////////////
part I, item 12, column A).................................................. 2076 N/A 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, ////////////////////
item 4, column A)........................................................... 2077 N/A 3.
4. Total IBF liabilities (component of Schedule RC, item 21)................... 2898 N/A 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of ////////////////////
Schedule RC-E, part II, items 2 and 3)...................................... 2379 N/A 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, ////////////////////
4, 5, and 6)................................................................ 2381 N/A 6.
</TABLE>
22
<PAGE>
Legal Title of Bank: Wachovia Bank of Call Date: 6/30/93 ST-BK: 37-2230
North Carolina, N.A. FFIEC 031
Address: P.O. Box 3099 Page RC-13
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
---------
Schedule RC-K--Quarterly Average (1)
<TABLE>
<CAPTION>
------------
C455
---------------------------
Dollar Amounts in Thousands ////////// Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS ///////////////////////////
1. Interest-bearing balances due from depository institutions................. RCFD 3381 86,817 1.
2. U.S. Treasury securities and U.S. Government agency and corporation ///////////////////////////
obligations............................................................... RCFD 3382 3,239,918 2.
3. Securities issued by states and political subdivisions in the U.S.......... RCFD 3382 375,959 3.
4. a. Other debt securities................................................... RCFD 3647 206,195 4.a.
b. Equity securities (includes investments in mutual funds and Federal ///////////////////////////
Reserve stock).......................................................... RCFD 3648 4,658 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 750,226 5.
6. Loans: ///////////////////////////
a. Loans in domestic offices: ///////////////////////////
(1) Total loans......................................................... RCON 3360 10,384,930 6.a.(1)
(2) Loans secured by real estate........................................ RCON 3385 3,469,271 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers. RCON 3386 81,695 6.a.(3)
(4) Commercial and industrial loans..................................... RCON 3387 2,952,689 6.a.(4)
(5) Loans to individuals for household, family, and other personal ///////////////////////////
expenditures........................................................ RCON 3388 1,924,015 6.a.(5)
(6) Obligations (other than securities and leases) of states and ///////////////////////////
political subdivisions in the U.S. ................................. RCON 3389 266,916 6.a.(6)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and ///////////////////////////
IBFs.................................................................... RCFN 3360 149 6.b.
7. Assets held in trading accounts............................................ RCFD 3401 657,208 7.
8. Lease financing receivables (net of unearned income)....................... RCFD 3484 53,621 8.
9. Total assets............................................................... RCFD 3368 17,777,262 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 1,247,394 10.
11. Nontransaction accounts in domestic offices: ///////////////////////////
a. Money market deposit accounts (MMDAs)................................... RCON 3486 1,714,451 11.a.
b. Other savings deposits.................................................. RCON 3487 1,035,821 11.b.
c. Time certificates of deposit of $100,000 or more........................ RCON 3345 1,029,843 11.c.
d. All other time deposits................................................. RCON 3469 2,906,613 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement ///////////////////////////
subsidiaries, and IBFs..................................................... RCFN 3404 224,885 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 3,113,360 13.
14. Other borrowed money....................................................... RCFD 3355 1,666,482 14.
---------------------------
</TABLE>
- ------------
(1) For all items, banks have the option of reporting either (1) an average of
daily figures for the quarter, or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter).
23
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-14
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-L--Off-Balance Sheet Items
Please read carefully the instructions for the preparation of Schedule RC-L.
Some of the amounts reported in Schedule RC-L are regarded as volume indicators
and not necessarily as measures of risk.
<TABLE>
<CAPTION>
C460
------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unused commitments: ////////////////////
a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., home ////////////////////
equity lines................................................................................ 3814 524,668 1.a.
b. Credit card lines........................................................................... 3815 0 1.b
c. Commercial real estate, construction, and land development: ////////////////////
(1) Commitments to fund loans secured by real estate........................................ 3816 175,819
1.c.(1)
(2) Commitments to fund loans not secured by real-estate.................................... 6550 479
1.c.(2)
d. Securities underwriting..................................................................... 3817 0 1.d.
e. Other unused commitments.................................................................... 3818 4,870,277 1.e.
2. Financial standby letters of credit and foreign office guarantees.............................. 3819 736,894 2.
--------------------------
a. Amount of financial standby letters of credit conveyed to others RCFD 3820 6,232 //////////////////// 2.a.
--------------------------
3. Performance standby letters of credit and foreign office guarantees............................ 3821 895,665 3.
a. Amount of performance standby letters of credit conveyed to --------------------------
others............................................................ RCFD 3822 0 //////////////////// 3.a.
--------------------------
4. Commercial and similar letters of credit....................................................... 3411 113,840 4.
5. Participations in acceptances (as described in the instructions) conveyed to others by
the reporting bank............................................................................. 3428 0 5.
6. Participants in acceptances (as described in the instructions) acquired by the reporting ////////////////////
(nonaccepting) bank............................................................................ 3429 0 6.
7. Securities borrowed............................................................................ 3432 0 7.
8. Securities lent (including customers' securities lent where the customer is indemnified ////////////////////
against loss by the reporting bank)............................................................ 3433 0 8.
9. 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 8,135 10.a.
b. Gross commitments to sell................................................................... 3435 5,145 10.b.
11. Interest rate contracts (exclude when-issued securities): ////////////////////
a. Notional value of interest rate swaps....................................................... 3450 720,546 11.a.
b. Futures and forward contracts............................................................... 3823 2,126,835 11.b.
c. Option contracts (e.g., options on Treasuries): ////////////////////
(1) Written option contracts................................................................ 3824 454,412
11.c.(1)
(2) Purchased option contracts.............................................................. 3825 321,912
11.c.(2)
12. Foreign exchange rate contracts: ////////////////////
a. Notional value of exchange swaps (e.g., cross-currency swaps)............................... 3826 0 12.a.
b. Commitments to purchase foreign currencies and U.S. dollar exchange (spot, forward, ////////////////////
and futures)................................................................................ 3415 1,095,186 12.b.
c. Option contracts (e.g., options on foreign currency): ////////////////////
(1) Written option contracts................................................................ 3827 0
12.c.(1)
(2) Purchased option contracts.............................................................. 3828 0
12.c.(2)
</TABLE>
24
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-15
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-L--Continued
<TABLE>
<CAPTION>
-----
C461
--------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
13. Contracts on other commodities and equities: ////////////////////
a. Notional value of other swaps (e.g., oil swaps)......................... 3829 0 13.a.
b. Futures and forward contracts (e.g., stock index and ////////////////////
commodity--precious metals, wheat, cotton, livestock-- ////////////////////
contracts).............................................................. 3830 0 13.b.
c. Option contracts (e.g., options on commodities, individual ////////////////////
stocks and stock indexes): ////////////////////
(1) Written option contracts............................................ 3831 0 13.c.(1)
(2) Purchased option contracts.......................................... 3832 0 13.c.(2)
14. All other off-balance sheet liabilities (itemize and describe ////////////////////
each component of this item over 25% of Schedule RC, item 28, ////////////////////
"Total equity capital").................................................... 3430 0 14.
////////////////////
--------- ------------------------------
a. TEXT 3555 RCFD 3555 //////////////////// 14.a.
----------------------------------------
b. TEXT 3556 RCFD 3556 //////////////////// 14.b.
----------------------------------------
c. TEXT 3557 RCFD 3557 //////////////////// 14.c.
----------------------------------------
d. TEXT 3558 RCFD 3558 //////////////////// 14.d.
-----------------------------------------------------------------------
15. All other off-balance sheet assets (itemize and describe each ////////////////////
component of this item over 25% of Schedule RC, item 28, "Total ////////////////////
equity capital")........................................................... 5591 0 15.
////////////////////
---------- ------------------------------
a. TEXT 5592 RCFD 5592 //////////////////// 15.a.
----------------------------------------
b. TEXT 5593 RCFD 5593 //////////////////// 15.b.
----------------------------------------
c. TEXT 5594 RCFD 5594 //////////////////// 15.c.
----------------------------------------
d. TEXT 5595 RCFD 5595 //////////////////// 15.d.
-----------------------------------------------------------------------------------------------
</TABLE>
Memoranda
<TABLE>
<CAPTION>
--------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Loans originated by the reporting bank that have been sold or participated ////////////////////
to other 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 1,263,613 M.1.
2. Loans purchased by the reporting bank during the calendar quarter ending with ////////////////////
the report date (see instructions for exclusions)............................ 3488 0 M.2.
3. Unused commitments with an original maturity exceeding one year that are ////////////////////
reported in Schedule RC-L, items 1.a through 1.e, above (report only the ////////////////////
unused portions of commitments that are fee paid or otherwise legally ////////////////////
binding).................................................................... 3833 3,202,397 M.3.
a. Participations in commitments with an original maturity ---------- ----- ////////////////////
exceeding one year conveyed to others.................. RCFD 3834 5,000 //////////////////// 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. addresses (domicile) included in ////////////////////
Schedule RC-L, items 2 and 3, above......................................... 3377 2,323 M.4.
5. To be completed for the September report only: ////////////////////
Installment loans to individuals for household, family, and other personal ////////////////////
expenditures that have been securitized and sold without recourse (with ////////////////////
servicing retained), amounts outstanding by type of loan: ////////////////////
a. Loans to purchase private passenger automobiles.......................... 2741 N/A M.5.a.
b. Credit cards and related plans........................................... 2742 N/A M.5.b.
c. All other consumer installment credit (including mobile home loans)...... 2743 N/A M.5.c.
--------------------
</TABLE>
25
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-16
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-M--Memoranda
<TABLE>
<CAPTION>
----------
C465
--------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------ --------------------
<S> <C> <C> <C>
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 120,645 1.a.
b. Number of executive officers, directors, and principal shareholders to whom the amount of all //////////////////
extensions of credit by the reporting bank (including extensions of credit to
related interests) equals or exceeds the lesser of $500,000 or 5 percent Number //////////////////
of total capital as defined for thie purpose in agency regulations. -----------------------------
RCFD 6165 8 ////////////////// 1.b.
-----------------------------
2. Federal funds sold and securities purchased under agreements to resell with U.S. branches //////////////////
and agencies of foreign banks(1) (included in Schedule RC, items 3.a and 3.b)........................ 3405 0 2.
3. Not applicable....................................................................................... //////////////////
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for others
(include both retained servicing and purchased servicing): //////////////////
a. Mortgages serviced under 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
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
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. addresses (domicile)......................................................................... 2103 220,730 5.a.
b. Non-U.S. addresses (domicile)..................................................................... 2104 1,970 5.b.
6. Intangible assets: //////////////////
a. Mortgage servicing rights......................................................................... 3164 0 6.a.
b. Other identifiable intangible assets: //////////////////
(1) Purchased credit card relationships........................................................... 5506 0
6.b.(1)
(2) All other identifiable assets................................................................. 5507 0
6.b.(2)
c. Goodwill.......................................................................................... 3163 1,622 6.c.
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10)............................ 2143 1,622 6.d.
e. Intangible assets that have been grandfathered for regulatory capital purposes.................... 6442 0 6.e.
--------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
7. Does your bank have any mandatory convertible debt that is part of your primary or secondary YES NO
--------------------
capital?............................................................................................. 6167 /// X 7.
--------------------
If yes, complete items 7.a through 7.e: RCFD Bil Mil Thou
--------------------
a. Total equity contract notes, gross................................................................ 3290 N/A 7.a.
b. Common or perpetual preferred stock dedicated to redeem the above notes........................... 3291 N/A 7.b.
c. Total equity commitment notes, gross.............................................................. 3293 N/A 7.c
d. Common or perpetual preferred stock dedicated to redeem the above notes........................... 3294 N/A 7.d
e. Total (item 7.a minus 7.b plus 7.c minus 7.d)..................................................... 3295 N/A 7.e
</TABLE>
- ------------
(1) Do not report federal funds sold and securities purchased under
---
agreements to resell with other commercial banks in the U.S. in this item.
26
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-17
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-M--Continued
<TABLE>
<CAPTION>
-------------------------
Dollar Amounts in Thousands ///////// Bil Mil Thou
- --------------------------------------------------------------------------------- -------------------------
<S> <C> <C> <C>
8. a. Other real estate owned: /////////////////////////
(1) Direct and indirect investments in real estate ventures................ RCFD 5372 0 8.a.(1)
(2) All other real estate owned: /////////////////////////
(a) Construction and land development in domestic offices.............. RCON 5508 4 8.a.(2)(a)
(b) Farmland in domestic offices....................................... RCON 5509 0 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices.............. RCON 5510 750 8.a.(2)(c)
(d) Multifamily (5 or more) residential properties in domestic /////////////////////////
offices............................................................ RCON 5511 0 8.a.(2)(d)
(e) Nonfarm nonresidential properties in domestic offices.............. RCON 5512 7,066 8.a.(2)(e)
(f) In foreign offices................................................. RCFN 5513 0 8.a.(2)(f)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule /////////////////////////
RC, item 7)............................................................ RCFD 2150 7,820 8.b.(1)
b. Investments in unconsolidated subsidiaries and associated companies: /////////////////////////
(1) Direct and indirect investments in real estate ventures................ RCFD 5374 0 8.b.(1)
(2) All other investments in unconsolidated subsidiaries and /////////////////////////
associated companies................................................... RCFD 5375 0 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule /////////////////////////
RC, item 8)............................................................ RCFD 2130 0 8.b.(3)
c. Total assets of unconsolidated subsidiaries and associated companies....... RCFD 5376 0 8.c.
9. Noncumulative perpetual preferred stock and related surplus included in /////////////////////////
Schedule RC, item 23, "Perpetual preferred stock and related surplus"......... RCFD 3778 0 9.
-------------------------
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Memorandum Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interbank holdings of capital instruments (to be completed for the ////////////////////
December report only): ////////////////////
a. Reciprocal holdings of banking organizations' capital instruments........ 3836 N/A M.1.a.
b. Nonreciprocal holdings of banking organizations' capital instruments..... 3837 N/A M.1.b.
--------------------
- --------------------------------------------------------------------------------------------------------
</TABLE>
27
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-18
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-N--Past Due and Nonaccrual Loans, Leases, and Other Assets
The FFIEC regards the information reported in all of Memorandum item 1, in items
1 through 10, column A, and in Memorandum items 2 and 3, column A, as
confidential.
<TABLE>
<CAPTION>
-------
C470
-------------------------------------------------------------
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 89 days or more
days and still and still
accruing accruing
-------------------------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1. Loans secured by real estate: ///////////////// ///////////////// /////////////////
a. To U.S. addresses (domicile)............................. 1245 57,482 1246 11,688 1247 68,278
1.a.
b. To non-U.S. addresses (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 8 1597 0 1583 5 3.
4. Commerical and industrial loans: ///////////////// ///////////////// /////////////////
a. To U.S. addresses (domicile)............................. 1251 19,728 1252 1,521 1253 13,543
4.a.
b. To non-U.S. addresses (domicile)......................... 1254 0 1255 0 1256 0
4.b.
5. Loans to individuals for household, family, and ///////////////// ///////////////// /////////////////
other personal expenditures: ///////////////// ///////////////// /////////////////
a. Credit cards and related plans........................... 5383 1,043 5384 1,421 5385 5
5.a.
b. Other (includes single payment, installment, ///////////////// ///////////////// /////////////////
and all student loans)................................... 5386 20,423 5387 2,226 5388 1,227
5.b.
6. Loans to foreign governments and official ///////////////// ///////////////// /////////////////
institutions................................................ 5389 0 5390 0 5391 0 6.
7. All other loans............................................. 5459 486 5460 55 5461 179 7.
8. Lease financing receivables: ///////////////// ///////////////// /////////////////
a. Of U.S. addresses (domicile)............................. 1257 161 1258 0 1259 0
8.a.
b. Of non-U.S. addresses (domicile)......................... 1271 0 1272 0 1791 0
8.b.
9. Debt securities and other assets (exclude other ///////////////// ///////////////// /////////////////
real estate owned and other repossessed assets)............. 3505 0 3506 0 3507 0 9.
-------------------------------------------------------------
</TABLE>
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed
portions of past due and nonaccrual loans and leases. Report in item 10 below
certain guaranteed loans and leases that have already been included in the
amounts reported in items 1 through 8.
<TABLE>
<CAPTION>
-------------------------------------------------------------
RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
-------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
10. Loans and leases reported in items 1 through 8 ///////////////// ///////////////// /////////////////
above which are wholly or partially guaranteed ///////////////// ///////////////// /////////////////
by the U.S. Government..................................... 5612 9,597 5613 5,382 5614 0 10.
a. Guaranteed portion of loans and leases included in ///////////////// ///////////////// /////////////////
item 10 above........................................... 5615 9,594 5616 5,246 5617 0
10.a.
-------------------------------------------------------------
</TABLE>
<PAGE>
Legal Title of Bank: Wachovia Bank of Call Date: 6/30/93
North Carolina, N.A. ST-BK: 37-2230
Address: P.O. Box 3099 FFIEC 031
City, State Zip: Winston-Salem, NC 27102-3099 Page RC-19
FDIC Certificate No.: 0 0 8 1 7
---------
Schedule RC-N--Continued
<TABLE>
<CAPTION>
---------
Memoranda C473
---------------------------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ---------------------------------------------------- --------------------- -------------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1. Restructured loans and leases included in ////////////////// ////////////////// //////////////////
Schedule RC-N, items 1 through 8, above.......... 1658 0 1659 0 1661 15,306 M.1.
2. Loans to finance commercial real estate, ////////////////// ////////////////// //////////////////
construction, and land development activities ////////////////// ////////////////// //////////////////
(not secured by real estate) included in ////////////////// ////////////////// //////////////////
Schedule RC-N, items 4 and 7, above.............. 6558 0 6559 0 6560 4,500 M.2.
--------------------- -------------------- --------------------
3. Loans secured by real estate in domestic offices RCON Bil Mil Thou RCON Bil Mil Thou RCON Bil Mil Thou
(included in Schedule RC-N, item 1, above): --------------------- -------------------- --------------------
////////////////// ////////////////// //////////////////
a. Construction and land development............. 2759 12,989 2769 0 3492 121 M.3.a.
b. Secured by farmland........................... 3493 118 3494 135 3495 91 M.3.b.
c. Secured by 1-4 family residential properties: ////////////////// ////////////////// //////////////////
(1) Revolving, open-end loans secured by ////////////////// ////////////////// //////////////////
1-4 family residential properties and ////////////////// ////////////////// //////////////////
extended under lines of credit............ 5398 431 5399 144 5400 0 M.3.c.(1)
(2) All other loans secured by 1-4 family ////////////////// ////////////////// //////////////////
residential properties.................... 5401 20,394 5402 5,274 5403 4,102 M.3.c.(2)
d. Secured by multifamily (5 or more) ////////////////// ////////////////// //////////////////
residential properties........................ 3499 40 3500 0 3501 336 M.3.d.
e. Secured by nonfarm nonresidential properties.. 3502 23,510 3503 6,135 3504 63,628 M.3.e.
---------------------------------------------------------------
</TABLE>
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 9 of this schedule are amended after the semiannual
Certified Statement originally covering this report date has been filed with the
FDIC.
<TABLE>
<CAPTION>
--------
C475
--------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ----------------------------------------------------------------------------------------------- --------------------
<S> <C> <C> <C>
1. Unposted debits (see instructions): //////////////////
a. Actual amount of all unposted debits..................................................... 0030 N/A 1.a.
OR //////////////////
b. Separate amount of unposted debits: //////////////////
(1) Actual amount of unposted debits to demand deposits.................................. 0031 0 1.b.(1)
(2) Actual amount of unposted debits to time and savings deposits(1)..................... 0032 0 1.b.(2)
2. Unposted credits (see instructions): //////////////////
a. Actual amount of all unposted credits.................................................... 3510 N/A 2.a.
OR //////////////////
b. Separate amount of unposted credits: //////////////////
(1) Actual amount of unposted credits to demand deposits................................. 3512 0 2.b.(1)
(2) Actual amount of unposted credits to time and savings deposits(1).................... 3514 0 2.b.(2)
3. Uninvested trust funds (cash) held in bank's own trust department (not included in total //////////////////
deposits in domestic offices) 3520 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 29 4.a.
b. Time and savings deposits(1) of consolidated subsidiaries................................ 2351 520 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries..................... 5514 1 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions: //////////////////
a. Demand deposits in insured branches (included in Schedule RC-E, Part II)................. 2229 0 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part II).... 2383 0 5.b.
c. Interest accrued and unpaid on deposits in insured branches //////////////////
(included in Schedule RC-G, item 1.b).................................................... 5515 0 5.c.
--------------------
</TABLE>
- --------------
(1) For FDIC insurance assessment purposes, "time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
29
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230
Address: P.O. Box 3099 FFIEC 031
City, State Zip: Winston-Salem, NC 27102-3099 Page RC-20
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-O -- Continued
<TABLE>
<CAPTION>
----------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------- ----------------------
<S> <C> <C> <C>
Item 6 is not applicable to state nonmember banks that have not been authorized by the /////////////////////
Federal Reserve to act as pass-through correspondents. /////////////////////
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on /////////////////////
behalf of its respondent depository institutions that are also reflected as deposit /////////////////////
liabilities of the reporting bank: /////////////////////
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, /////////////////////
Memorandum item 4.a).................................................................. 2314 0 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule RC-E, Part I, /////////////////////
Memorandum item 4.b).................................................................. 2315 0 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1) /////////////////////
a. Unamortized premiums.................................................................. 5516 0 7.a.
b. Unamortized discounts................................................................. 5517 0 7.b.
---------------------
- ----------------------------------------------------------------------------------------------------------------------------------
8. To be completed by banks with "Oaker deposits." ---------------------
Total "Adjusted Attributable Deposits" of all institutions acquired under Section 5(d)93) /////////////////////
of the Federal Deposit Insurance Act (from most recent FDIC Oaker Transaction /////////////////////
Worksheet(s))............................................................................. 5518 N/A 8.
---------------------
- ----------------------------------------------------------------------------------------------------------------------------------
---------------------
9. Deposits in lifeline accounts............................................................ 5596 /////////////// 9.
---------------------
</TABLE>
- --------------------
(1) For FDIC insurance assessment purposes, "time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
Memoranda (to be completed each quarter except as noted)
<TABLE>
<CAPTION>
----------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------- ----------------------
<S> <C> <C> <C>
1. Total deposits in domestic offices of the bank (sum of Memorandum items 1.a.(1) and 1.b(1) /////////////////////
must equal Schedule RC, item 13.a): /////////////////////
a. Deposit accounts of $100,000 or less: /////////////////////
(1) Amount of deposit accounts of $100,000 or less..................................... 2702 6,315,408 M.1.a.(1)
(2) Number of deposit accounts of $100,000 or less (to be Number /////////////////////
--------------------------- /////////////////////
completed for the June report only).................. RCON 3779 1,094,123 ///////////////////// M.1.a.(2)
--------------------------- /////////////////////
b. Deposit accounts of more than $100,000: /////////////////////
(1) Amount of deposit accounts of more than $100,000..... Number 2710 4,378,881 M.1.b.(1)
---------------------------
(2) Number of deposit accounts of more than $100,000..... RCON 2722 11,391 ///////////////////// M.1.b.(2)
---------------------------------------------------
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by multiplying the
number of deposit accounts of more than $100,000 reported in Memorandum item 1.b.(2)
above by $100,000 and subtracting the result from the amount of deposit accounts of
more than $100,000 reported in Memorandum item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a method or procedure YES NO
for determining a better estimate of uninsured deposits than the estimate described -----------------
above...................................................................................... 6861 /// X M.2.a.
-----------------
RCON 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 N/A M.2.b.
-----------------
</TABLE>
- -------------------------------------------------------------------------------
Person to whom questions about the Reports of Condition C477
and Income should be directed: --------
Patrick G. Parnin, Vice President (919) 770-5970
- ----------------------------------- -----------------------------------------
Name and Title (TEXT 8901) Area code and phone number (TEXT 8902)
30
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-21
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
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, 1992,
must complete items 2 through 9 and Memorandum item 1. Banks with assets of less
than $1 billion must complete items 1 through 3 below or Schedule RC-R in its
entirety, depending on their response to item 1 below.
<TABLE>
<S> <C> <C> <C>
1. Test for determining the extent to which Schedule RC-R must be completed.
To be completed only by banks with total assets of less than $1 billion. C480
Indicate in the appropriate box at the right whether the bank has total YES NO
capital greater than or equal to eight percent of adjusted total assets.................. RCFD 6056 //// 1.
--------------------------
</TABLE>
For purposes of this test, adjusted total assets equals total assets less
cash, U.S. Treasuries, U.S. Government agency obligations, and 80 percent
of U.S. Government-sponsored agency obligations plus the allowance for loan
and lease losses and selected off-balance sheet items as reported on
Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to complete
items 2 and 3 below. If the box marked NO has been checked, the bank must
complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual
risk-based capital ratio is less than eight percent or that the bank is not
in compliance with the risk-based capital guidelines.
<TABLE>
<CAPTION>
---------------------------------------
(Column A) (Column B)
Subordinated Debt(1) Other
and Intermediate Limited-
Items 2 and 3 are to be completed by all banks. Term Preferred Life Capital
Stock Instruments
------------------- -------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -------------------------------------------------------------------------------- ------------------- -------------------
<S> <C> <C> <C> <C> <C>
2. Subordinated debt(1) and other limited-life capital instruments (original ////////////////// //////////////////
weighted average maturity of at least five years) with a remaining ////////////////// //////////////////
maturity of: ////////////////// //////////////////
a. One year or less.......................................................... 3780 0 3786 0 2.a.
b. Over one year through two years........................................... 3781 0 3787 0 2.b.
c. Over two years through three years........................................ 3782 0 3788 0 2.c.
d. Over three years through four years....................................... 3783 0 3789 0 2.d.
e. Over four years through five years........................................ 3784 0 3790 0 2.e.
f. Over five years........................................................... 3785 125,000 3791 0 2.f.
---------------------------------------
</TABLE>
<TABLE>
<CAPTION>
RCFD Bil Mil Thou
-------------------
<S> <C> <C> <C>
3. Total qualifying capital (i.e., Tier 1 and Tier 2 capital) allowable under the risk-based
capital guidelines................................................................................ 3792 1,545,117 3.
-------------------
</TABLE>
<TABLE>
<CAPTION>
(Column A) (Column B)
Assets Credit Equiv-
Items 4-9 and Memorandum item 1 are to be completed Recorded alent Amount
by banks that answered NO to item 1 above and on the of Off-Balance
by banks with total assetes of $1 billion or more. Balance Sheet Sheet Items(2)
------------------- -------------------
RCFD Bil Mil Thou RCFD Bil Mil Thou
------------------- -------------------
<S> <C> <C> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance sheet items assigned
to the Zero percent risk category: ////////////////// //////////////////
a. Assets recorded on the balance sheet: ////////////////// //////////////////
(1) Securities issued by, other claims on, and claims unconditionally ////////////////// //////////////////
guaranteed by, the U.S. Government and its agencies and other ////////////////// //////////////////
OECD central governments.............................................. 3794 3,324,856 //////////////////
4.a.(1)
(2) All other............................................................. 3795 186,163 //////////////////
4.a.(2)
b. Credit equivalent amount of off-balance sheet items....................... ////////////////// 3796 0 4.b.
------------------- -------------------
</TABLE>
- ----------------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.e,
"Total."
(2) Do not report in column B the risk-weighted amount of assets reported in
column A.
31
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-22
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Schedule RC-R--Continued
<TABLE>
<CAPTION>
-------------------------------------------
(Column A) (Column B)
Assets Credit Equiv-
Recorded alent Amount
on the of Off-Balance
Balance Sheet Sheet Items(1)
-------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance sheet items //////////////////// /////////////////
assigned to the 20 percent risk category: //////////////////// /////////////////
a. Assets recorded on the balance sheet: //////////////////// /////////////////
(1) Claims conditionally guaranteed by the U.S. Government and its //////////////////// /////////////////
agencies and other DECD central governments..................... 3798 300,470 ///////////////// 5.a.(1)
(2) Claims collateralized by securities issued by the U.S. Govern- //////////////////// /////////////////
ment and its agencies and other OECD central governments; by //////////////////// /////////////////
securities issued by U.S. Government-sponsored agencies; and //////////////////// /////////////////
by cash on deposit.............................................. 3799 269,045 ///////////////// 5.a.(2)
(3) All other....................................................... 3800 3,286,933 ///////////////// 5.a.(3)
b. Credit equivalent amount of off-balance sheet items................. //////////////////// 3801 17,373 5.b.
6. Assets and credit equivalent amounts of off-balance sheet items //////////////////// /////////////////
assigned to the 50 percent risk category: //////////////////// /////////////////
a. Assets recorded on the balance sheet................................ 3802 1,395,757 ///////////////// 6.a.
b. Credit equivalent amount of off-balance sheet items................. //////////////////// 3803 48,207 6.b.
7. Assets and credit equivalent amounts of off-balance sheet items //////////////////// /////////////////
assigned to the 100 percent risk category: //////////////////// /////////////////
a. Assets recorded on the balance sheet................................ 3804 9,979,135 ///////////////// 7.a.
b. Credit equivalent amount of off-balance sheet items................. //////////////////// 3805 2,794,608 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 calculation 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 18,742,359 ///////////////// 9.
-----------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-----------------------------------------
(Column A) (Column B)
Notional Replacement
Principal Cost
Memorandum Value (Market Value)
-------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Notional principal value and replacement cost of interest rate and //////////////////// //////////////////
foreign exchange rate contracts (in column B, report only those //////////////////// //////////////////
contracts with a positive replacement cost): //////////////////// //////////////////
a. Interest rate contracts (exclude futures contracts)................. //////////////////// 3808 24,534 M.1.a.
(1) With a remaining maturity of one year or less................... 3809 2,251,050 ////////////////// M.1.a.(1)
(2) With a remaining maturity of over one year...................... 3810 902,023 ////////////////// M.1.a.(2)
b. Foreign exchange rate contracts (exclude contracts with an original //////////////////// //////////////////
maturity of 14 days or less and futures contracts).................. //////////////////// 3811 14,293 M.1.b.
(1) With a remaining maturity of one year or less................... 3812 807,770 ////////////////// M.1.b.(1)
(2) With a remaining maturity of over one year...................... 3813 1,601 ////////////////// M.1.b.(2)
------------------------------------------
- --------------
</TABLE>
(1) Do not report in column B the risk-weighted amount of assets reported in
column A.
32
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230 FFIEC 031
Address: P.O. Box 3099 Page RC-23
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on June 30, 1993
Wachovia Bank of North Carolina, N.A. Winston-Salem , North Carolina
- ------------------------------------- ------------------ --------------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief narrative
statement on the amounts reported in the Reports of Condition and Income. This
optional statement will be made available to the public, along with the
publicity available data in the Reports of Condition and Income, in response to
any request for individual bank report data. However, the information reported
in column A and in all of Memorandum item 1 of Schedule RC-N is regarded as
confidential and will not be released to the public. BANKS CHOOSING TO SUBMIT
THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT DOES NOT CONTAIN THE
NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK CUSTOMERS, REFERENCES TO THE
AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN SCHEDULE RC-N, OR ANY OTHER
INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD
COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing not to make a
statement may check the "No comment" box below and should make no entries of
any kind in the space provided for the narrative statement; i.e., DO NOT enter
in this space such phrases as "No statement," "Not applicable," "N/A,"
"No comment," and "None."
The optional statement must be entered on this sheet. The statement should not
exceed 100 words. Further, regardless of the number of words, the statement must
not exceed 750 characters, including punctuation, indentation, and standard
spacing between words and sentences. If any submission should exceed 750
characters, as defined, it will be truncated at 750 characters with no notice
to the submitting bank and the truncated statement will appear as the bank's
statement both on agency computerized records and in computer-file releases to
the public.
All information furnished by the bank in the narrative statement must be
accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statement's accuracy. The statement must be
signed, in the space provided below, by a senior officer of the bnak who thereby
attests to its accuracy.
If, subsequent to the original submission, material changes are submitted for
the data reported in the Reports of Condition and Income, the existing narrative
statement will be deleted from the files, and from disclosure; the bank, at its
option, may replace it with a statement, under signature, appropriate to the
amended data.
The optional narrative statement will appear in agency records and in release to
the public exactly as submitted (or amended as described in the preceding
paragraph) by the management of the bank (except for the truncation of
statements exceeding the 750-character limit described above). THE STATEMENT
WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES FOR
ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT SIGNIFY THAT ANY
FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE
INFORMATION CONTAINED THEREIN. A STATEMENT OF THIS EFFECT WILL APPEAR ON ANY
PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
- --------------------------------------------------------------------------------
No comment / / (RCON 6979) / C471 / C472 /
----------------
BANK MANAGEMENT STATEMENT (please type or print clearly):
(TEXT 6980)
Loans past due 90 days or more and still accruing, nonaccrual loans and
renegotiated debt totalled $100.253 million or .54% of total assets at June 30,
1993. As of July 31, 1992, Wachovia Bank of North Carolina purchased $75 million
of subordinated notes, bearing an interest rate of LIBOR plus .35% and maturing
on July 31, 2002, issued by Wachovia Bank of Georgia, an affiliate. This debt
qualifies as Tier II capital for WBGA and is netted out of Tier II Capital for
WBNC in RC-R, Item 3. This amount is included in RC-R item 7.a. and item 9, but
needs to be netted before computing capital ratios. This issue complies with
regulatory and legal requirements and has been approved by the Comptroller of
the Currency.
James A. Tewes 7/29/93
-------------------------------------------------- ------------------
Signature of Executive Officer of Bank Date of Signature
33
<PAGE>
Legal Title of Bank: Wachovia Bank Call Date: 6/30/93
of North Carolina, N.A. ST-BK: 37-2230
Address: P.O. Box 3099
City, State Zip: Winston-Salem, NC 27102-3099
FDIC Certificate No.: 0 0 8 1 7
---------
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
...............................................................................
NAME AND ADDRESS OF BANK OMB No. For OCC: 1557-0081
OMB No. For FDIC: 3064-0052
OMB No. For Federal Reserve: 7100-0036
Expiration Date: 2/28/95
PLACE LABEL HERE SPECIAL REPORT
(Dollar Amounts in Thousands)
-----------------------------------------------------
CLOSE OF BUSINESS FDIC Certificate Number
DATE C-700
6/30/93 0 0 8 1 7
- --------------------------------------------------------------------------------
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
................................................................................
The following information is required by Public Laws 90-44 and 102-242, but does
not constitute a part of the Report of Condition. With each Report of Condition,
these Laws require all banks to furnish a report of all loans or other
extensions of credit to their executive officers made since the date of the
previous Report of Condition. Data regarding individual loans or other
extensions of credit are not required. If no such loans or other extensions of
credit were made during the period, insert "none" against subitem (a). (Exclude
the first $5,000 of indebtedness of each executive officer under bank credit
card plan.) See Sections 215.2 and 215.3 of Title 12 of the Code of Federal
Regulations (Federal Reserve Board Regulation O) for the definitions of
"executive officer" and "extension of credit," respectively. Exclude loans and
other extensions of credit to directors and principal shareholders who are not
executive officers.
................................................................................
<TABLE>
<S> <C> <C> <C> <C> <C>
----------------------
a. Number of loans made to executive officers since the previous Call Report date......... RCFD 3561 1 a.
----------------------
b. Total dollar amount of above loans (in thousands of dollars)........................... RCFD 3562 100 b.
----------------------
c. Range of interest charged on above loans
------------------------------------------------------
(example: 9 3/4% = 9.75).............................. RCFD 7701 8.00 % to RCFD 7702 8.00 % c.
------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER DATE (Month, Day, Year)
AUTHORIZED TO SIGN REPORT
Patrick G. Pernin 7-29-93
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NAME AND TITLE OF PERSON TO WHOM AREA CODE/PHONE NUMBER (TEXT 8904)
INQUIRIES MAY BE DIRECTED (TEXT 8903)
Patrick G. Pernin, Vice President (919) 770-5970
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FDIC 8040/53 (12-92)
34
