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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 3, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CARDINAL HEALTH, INC.
(Exact name of Registrant as specified in its charter)
OHIO
(State or other jurisdiction of incorporation)
31-0958666
(I.R.S. Employer Identification No.)
5555 GLENDON COURT
DUBLIN, OHIO 43016
(614) 717-5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
ROBERT D. WALTER, CHAIRMAN
5555 GLENDON COURT
DUBLIN, OHIO 43016
(614) 717-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
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JOHN M. GHERLEIN, ESQ. JOHN J. MCCARTHY, ESQ.
BAKER & HOSTETLER LLP DAVIS POLK & WARDWELL
3200 NATIONAL CITY CENTER 450 LEXINGTON AVENUE
1900 EAST NINTH STREET NEW YORK, NEW YORK 10017
CLEVELAND, OHIO 44114 (212) 450-4000
(216) 621-0200
</TABLE>
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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 interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
OF SECURITIES REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
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Debt Securities $350,000,000(2) 100% $350,000,000 $106,061
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(1) Estimated solely for the purpose of computing the registration fee.
(2) Plus such additional amount as may be necessary that, if any Debt Securities
are issued with an original issue discount, the aggregate initial offering
price will equal $350,000,000.
IN ACCORDANCE WITH RULE 429, THE PROSPECTUS CONTAINED IN THIS REGISTRATION
STATEMENT ALSO RELATES TO THE COMPANY'S REGISTRATION STATEMENT ON FORM S-3 (NO.
33-57223), AS AMENDED, FIRST FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON JANUARY 10, 1995.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE 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.
SUBJECT TO COMPLETION, DATED APRIL 3, 1997
[CARDINAL HEALTH, INC. LOGO]
$400,000,000
DEBT SECURITIES
Cardinal Health, Inc. (the "Company" or "Cardinal") may offer and issue
from time to time unsecured debt securities in one or more series (the "Debt
Securities") up to an aggregate initial offering price not to exceed
$400,000,000 (or the equivalent in foreign-denominated currency or currency
units based on or relating to foreign currencies, including European Currency
Units). The Debt Securities will rank equally with all other current and future
unsecured indebtedness of the Company and prior to subordinated indebtedness, if
any. The Debt Securities may be sold for U.S. dollars, foreign-denominated
currency or currency units; principal of and interest on the Debt Securities may
likewise be payable in U.S. dollars, foreign-denominated currency or currency
units, in each case as the Company specifically designates. The Company does not
currently intend to issue Debt Securities based on or relating to foreign
currencies or foreign currency units.
The Debt Securities will be offered in amounts, at prices, with maturities
and on terms to be determined in light of market conditions at the time of the
offering and set forth in one or more accompanying prospectus supplements (the
"Prospectus Supplement"). The Prospectus Supplement will set forth the specific
designation, aggregate principal amount, authorized denominations and currency
or currency unit in which the Debt Securities may be purchased and in which the
principal and any interest is payable; purchase price, maturity, rate of or
manner of calculating interest, if any; time of payment of interest, if any;
terms, if any, for redemption at the option of the Company or the holder; terms
for sinking fund payments, if any; terms for any mandatory redemption; listing
on any securities exchange or over-the-counter market system; whether the Debt
Securities will be issuable as global securities and the identity of the
depositary for any global securities; and any other specific terms relating to
any series of the Debt Securities.
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 Debt Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the Prospectus Supplement. Net
proceeds to the Company will be the purchase price in the case of a dealer, the
public offering price less discount in the case of an underwriter or the
purchase price less commission in the case of an agent; in each case, less other
attributable expenses of issuance and distribution. The Company may also sell
Debt Securities directly to investors on its own behalf. In the case of sales
made directly by the Company, no commission will be payable. See "Plan of
Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
The date of this Prospectus is , 1997
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR AN APPLICABLE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). These reports and other information (including
proxy and information statements) filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at its
principal office at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549,
and at the following Regional Offices of the Commission: New York Regional
Office, 7 World Trade Center, New York, New York 10048 and Chicago Regional
Office, 500 West Madison, 14th Floor, Chicago, Illinois 60661-2511. Copies of
such material can be obtained at prescribed rates from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission also maintains a web site at http://www.sec.gov containing reports,
proxy and information statements and other information regarding registrants,
including the Company, that file electronically with the Commission. These
reports and other information (including proxy and information statements) can
also be inspected at the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
This Prospectus constitutes a part of two Registration Statements filed by
the Company with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"). This Prospectus does not contain all of the information
set forth in the Registration Statements, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. Reference is hereby
made to the Registration Statements and related exhibits for further information
with respect to the Company and the Debt Securities offered hereby. Statements
contained herein concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statements or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are hereby incorporated by reference in this Prospectus: (1)
Annual Report on Form 10-K for the fiscal year ended June 30, 1996 (the "1996
Cardinal Form 10-K"), (2) Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1996, and December 31, 1996, and (3) Current Reports on Form 8-K
dated October 11, 1996, March 3, 1997, and March 18, 1997.
All reports and other 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 this offering shall be deemed to be incorporated
by reference herein and to be a part hereof from the respective dates of filing
of said reports and other documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for all purposes to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
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The Company hereby undertakes to provide without charge to each person to
whom this Prospectus has been delivered, upon the written or oral request of
such person, a copy of any and all documents incorporated herein by reference
(other than exhibits to such documents unless such exhibits are specifically
incorporated by reference in such documents). Requests for such copies should be
submitted in writing to Cardinal Health, Inc., Attn.: David Bearman, Executive
Vice President and Chief Financial Officer, 5555 Glendon Court, Dublin, Ohio
(614) 717-5000.
STATEMENT REGARDING FORWARD-LOOKING INFORMATION
The Private Securities Litigation Reform Act of 1995 (the "Act") provides a
"safe harbor" for "forward-looking statements" (as defined in the Act). This
Prospectus, any Prospectus Supplement, any documents incorporated by reference
herein, or any other written or oral statements made by or on behalf of the
Company may include forward-looking statements which reflect the Company's
current view (as of the date such forward-looking statement is made) with
respect to future events and financial performance. These forward-looking
statements are subject to certain uncertainties and other factors that could
cause actual results to differ materially from those made in such statements.
These uncertainties and other factors include, but are not limited to,
uncertainties relating to general economic conditions; the loss of one or more
key customer or supplier relationships, including pharmaceutical manufacturers
for which alternative supplies may not be available; the malfunction or failure
of the Company's information systems; the costs and difficulties related to the
integration of recently acquired businesses; changes in the distribution or
outsourcing pattern for pharmaceutical products, including any increase in
direct distribution or decrease in contract packaging by pharmaceutical
manufacturers; changes in, or failure to comply with, government regulations;
the costs and other effects of legal and administrative proceedings; injury to
person or property resulting from the Company's repackaging or pharmacy
management services; competitive factors in the Company's health care service
businesses, including pricing pressures; the continued financial viability and
success of the Company's customers, suppliers, and franchisees; technological
developments and products offered by competitors; failure to retain or continue
to attract senior management or key personnel; risks associated with
international operations, including fluctuations in currency exchange ratios;
successful challenges to the validity of the Company's patents, copyrights
and/or trademarks; difficulties or delays in the development, production and
marketing of new products and services; strikes or other labor disruptions;
labor and employee benefit costs; pharmaceutical manufacturers' pricing policies
and overall drug price inflation; changes in hospital buying groups or hospital
buying practices; and other factors referenced in this Prospectus, the
Prospectus Supplement or documents incorporated by reference herein or other
filings or written or oral statements made by or on behalf of the Company. The
words "believe", "expect", "anticipate", "project", and similar expressions
identify "forward-looking statements", which speak only as of the date the
statement was made. The Company undertakes no obligation to update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
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THE COMPANY
Cardinal, a holding company operating through a number of separate
operating subsidiaries, is a leading health care service provider, offering an
array of value-added pharmaceutical distribution services to a broad base of
customers. It is one of the nation's largest wholesale distributors of
pharmaceutical and related health care products to independent and chain drug
stores, hospitals, alternate care centers and the pharmacy departments of
supermarkets and mass merchandisers located throughout the continental United
States. Through its subsidiary, Pyxis Corporation ("Pyxis"), Cardinal develops
and manufactures unique point-of-use systems which automate the distribution,
management and control of medications and supplies in hospitals and alternate
care facilities. Cardinal is the largest franchisor of independent retail
pharmacies in the United States through its subsidiary, Medicine Shoppe
International, Inc. ("Medicine Shoppe"). In addition, through its subsidiaries,
Owen Healthcare, Inc. ("Owen"), and Allied Healthcare Service, Inc. ("Allied"),
Cardinal provides pharmacy management services to hospitals. PCI Services, Inc.
("PCI"), another one of Cardinal's subsidiaries, is a leading international
provider of integrated packaging services to pharmaceutical manufacturers.
As a full-service wholesale distributor, Cardinal complements its
distribution activities by offering a broad range of value-added support
services to assist Cardinal's customers and suppliers in maintaining and
improving their market positions and to strengthen Cardinal's role in the
channel of distribution. These support services include computerized order entry
and order confirmation systems, customized invoicing, generic sourcing programs,
product movement and management reports, consultation on store operation and
merchandising, and customer training. Cardinal's proprietary software systems
feature customized databases specially designed to help its customers order more
efficiently, contain costs, and monitor their purchases which are covered by
group contract purchasing arrangements.
Cardinal operates several specialty health care businesses which offer
value-added services to Cardinal's customers and suppliers while providing
Cardinal with additional opportunities for growth and profitability. For
example, Cardinal operates a pharmaceutical repackaging program for both
independent and chain drugstore customers and serves as a distributor of
therapeutic plasma products and other specialty pharmaceuticals to hospitals,
clinics and other managed care facilities on a nationwide basis through the
utilization of telemarketing and direct mail programs. These specialty
distribution activities are part of Cardinal's overall strategy of developing
diversified products and services to enhance the profitability of its business
and that of its customers and suppliers.
In February 1994, Cardinal merged with Whitmire Distribution Corporation
("Whitmire"), a Folsom, California-based pharmaceutical wholesaler. The majority
of Whitmire's sales were concentrated in the western and central United States,
complementing the Company's former concentration of sales in the eastern United
States and positioning the combined company to service both customers and
suppliers on a national basis. As a result of the Whitmire merger, the Company
now maintains a network of distribution centers enabling it to routinely serve
the entire population of the continental U.S. on a next-day basis.
Cardinal has completed several additional business combinations since the
Whitmire merger. On July 1, 1994, Cardinal acquired Humiston-Keeling, Inc., a
Calumet City, Illinois-based drug wholesaler serving customers located primarily
in the upper midwest region of the United States. On July 18, 1994, Cardinal
merged with Behrens Inc., a Waco, Texas-based drug wholesaler serving customers
located primarily in Texas and adjoining states. On November 13, 1995, Cardinal
merged with Medicine Shoppe, a St. Louis, Missouri-based franchisor of
independent apothecary-style pharmacies in the United States and abroad. On May
7, 1996, Cardinal merged with Pyxis, a San Diego, California-based designer,
manufacturer, marketer and servicer of unique point-of-use systems which
automate the distribution, management and control of medications and supplies in
hospitals and other health care facilities. On October 11, 1996, Cardinal
completed a merger with PCI, a Philadelphia, Pennsylvania-based provider of
integrated packaging services to pharmaceutical manufacturers. Finally, on March
18, 1997, Cardinal completed a merger with Owen, a Houston, Texas-based provider
of fully integrated pharmacy management and information services to hospitals.
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Cardinal's principal executive offices are located at 5555 Glendon Court,
Dublin, Ohio 43016, and its telephone number is (614) 717-5000.
RATIO OF EARNINGS TO FIXED CHARGES
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SIX
MONTHS
FISCAL YEAR ENDED(1) ENDED
-------------------------------------------------------------- --------
MARCH 31, MARCH 31, JUNE 30, JUNE 30, JUNE 30, DEC. 31,
1992 1993 1994 1995 1996 1996
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Ratio of earnings to fixed
charges........................ 2.8 4.0 6.8 10.5 7.2 8.5
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(1) On March 1, 1994, the Company changed its fiscal year from March 31 to June
30.
The ratio of earnings to fixed charges is computed by dividing fixed
charges of the Company and entities 50% or more owned by the Company into
earnings before income taxes plus fixed charges. Fixed charges include interest
expense, amortization of debt offering costs, preferred stock dividend
requirements of subsidiaries, and the portion of rental expense which is deemed
to be representative of the interest factor.
USE OF PROCEEDS
The Company does not currently have any specific plans for the net proceeds
from the sale of Debt Securities. Except as otherwise specified in the
Prospectus Supplement, the net proceeds from the sale of the Debt Securities
will be used by the Company for general corporate purposes, which may include
working capital, capital expenditures, repayment or refinancing of indebtedness,
acquisitions, and investments.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated as of
, 1997 (hereinafter referred to as the "Indenture"), between the
Company and Bank One, Columbus, N.A., as Trustee (hereinafter referred to as the
"Trustee"). The Indenture does not limit the amount of Debt Securities or any
other debt which may be incurred by the Company or its subsidiaries, except as
provided below under "Limitations on Subsidiary Debt." Unless otherwise
specified in a Prospectus Supplement, a default in the Company's obligations
with respect to any other indebtedness will not constitute a default or an Event
of Default (as defined in the Indenture) with respect to the Debt Securities.
The Indenture does not contain any covenants or provisions that afford holders
of Debt Securities protection in the event of a highly leveraged transaction.
The Debt Securities will be unsecured and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. Currently, the Company
conducts nearly all of its operations through subsidiaries and expects that it
will continue to do so. As a result, the right of the Company to participate as
a shareholder in any distribution of assets of any subsidiary upon its
liquidation or reorganization or otherwise and the ability of holders of Debt
Securities to benefit as creditors of the Company from any such distribution are
subject to the prior claims of creditors of such subsidiary. As of February 28,
1997, the Company had outstanding approximately $436 million of indebtedness for
borrowed money with which the Debt Securities would rank equally. In addition,
as of such date, the Company's subsidiaries had outstanding approximately $60
million of indebtedness for borrowed money and approximately $1.042 billion of
trade payables to which the Debt Securities would be effectively subordinated.
The following statements are subject to the detailed provisions of the
Indenture, which is incorporated by reference as an exhibit to the Registration
Statements of which this Prospectus is a part and which is also available for
inspection at the office of the Trustee. Section references are to the
Indenture. Wherever particular provisions of the Indenture are referred to, such
provisions are incorporated by reference as a part of the statements made and
the statements are qualified in their entirety by such reference.
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GENERAL
The Indenture provides that the Debt Securities may be issued from time to
time in one or more series. The Prospectus Supplement which accompanies this
Prospectus will set forth the following terms of and information relating to the
Debt Securities offered thereby: (i) the designation, aggregate principal amount
and purchase price of the Debt Securities; (ii) the date or dates on which
principal of the Debt Securities is payable; (iii) the rate or rates per annum
at which the Debt Securities will bear interest, if any, or the method by which
such rate or rates will be determined; (iv) the dates on which interest will be
payable and the related record dates; (v) any redemption, repayment or sinking
fund provisions; and (vi) any other specific terms of the Debt Securities.
Unless otherwise specified in the accompanying Prospectus Supplement,
principal and premium, if any, will be payable, and the Debt Securities will be
transferable and exchangeable without service charge, at the office of the
Trustee set forth in the Indenture. Interest on any series of Debt Securities
will be payable on the interest payment dates set forth in the accompanying
Prospectus Supplement to the persons in whose names the Debt Securities are
registered at the close of business on the related record dates, and, unless
other arrangements are made, will be paid by checks mailed to such persons.
(Sections 2.7 and 3.1.)
Debt Securities may be issued as discounted debt securities (bearing no
interest or interest at a rate which at the time of issuance is below market
rates) and sold at a discount (which may be substantial) below their stated
principal amount ("Original Issue Discount Securities"). Federal income tax
consequences and other special considerations applicable to any such Original
Issue Discount Securities will be described in the Prospectus Supplement
relating thereto.
CERTAIN COVENANTS
Definitions. The term "Attributable Debt" means in connection with a sale
and lease-back transaction the lesser of (a) the fair value of the assets
subject to such transaction or (b) the aggregate of present values (discounted
at a rate per annum equal to the weighted average Yield to Maturity of the Debt
Securities of all series then outstanding and compounded semiannually) of the
obligations of the Company and its Consolidated Subsidiaries for rental payments
during the remaining term of all leases.
The term "Consolidated Net Tangible Assets" means the aggregate amount of
assets after deducting therefrom (a) all current liabilities (excluding any
thereof constituting Funded Indebtedness by reason of being renewable or
extendable) and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the
most recent balance sheet of the Company and its Consolidated Subsidiaries and
computed in accordance with generally accepted accounting principles.
The term "Consolidated Subsidiary" means any Subsidiary substantially all
the property of which is located, and substantially all the operations of which
are conducted, in the United States of America whose financial statements are
consolidated with those of the Company in accordance with generally accepted
accounting principles.
The term "Exempted Debt" means the sum of the following as of the date of
determination: (a) indebtedness of the Company and its Consolidated Subsidiaries
incurred after the date of the Indenture and secured by liens not permitted by
the limitation on liens provisions of the Indenture (Section 3.9), and (b)
Attributable Debt of the Company and its Consolidated Subsidiaries in respect of
every sale and lease-back transaction entered into after the date of the
Indenture, other than leases permitted by the limitation on sale and lease-back
provisions of the Indenture. (Section 3.10)
The term "Financing Subsidiary" means any Subsidiary, including its
Subsidiaries, engaged in one or more of the following activities: (a) the
business of making loans or advances, extending credit or providing financial
accommodations (including leasing new or used products) to others; (b) the
business of purchasing notes, accounts receivable (whether or not payable in
installments), conditional sale contracts or other obligations of others
originating in sales at wholesale or retail; or (c) any other business as may be
reasonably
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incidental to those described in (a) and (b) above, including the ownership and
use of property in connection therewith.
The term "Funded Indebtedness" means all Indebtedness 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 extendable beyond 12 months from such date at the option of the
borrower.
The term "Indebtedness" means all items classified as indebtedness on the
most recently available balance sheet of the Company and its Consolidated
Subsidiaries, in accordance with generally accepted accounting principles.
The term "Original Issue Discount Security" means any Debt Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof following an Event of
Default.
The term "Rate Hedging Obligations" means any and all obligations of anyone
arising under: (a) any and all agreements, devices or arrangements designed to
protect at least one of the parties thereto from the fluctuations of interest
rates, exchange rates or forward rates applicable to such party's assets,
liabilities or exchange transactions; and (b) any and all cancellations,
buybacks, reversals, terminations or assignments of any of the items in (a)
above.
The term "Restricted Subsidiary" means a "significant subsidiary" as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated under the
Securities Act and as amended from time to time.
The term "Senior Funded Indebtedness" means any Funded Indebtedness of the
Company that is not subordinated in right of payment to any other Indebtedness
of the Company.
The term "Subsidiary" means any corporation of which at least a majority of
the outstanding stock having voting power (under ordinary circumstances) to
elect a majority of the board of directors of said corporation is at the time
owned by the Company or by the Company and one or more Subsidiaries or by one or
more Subsidiaries.
The term "Yield to Maturity" means the yield to maturity on a series of
Debt Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
Limitation on Liens. The Indenture provides that, so long as any of the
Debt Securities remain outstanding, the Company will not, nor will it permit any
Consolidated Subsidiary to, create or assume any Indebtedness for borrowed money
which is secured by a mortgage, pledge, security interest or lien ("liens") of
or upon any assets, whether now owned or hereafter acquired, of the Company or
any such Consolidated Subsidiary without equally and ratably securing the Debt
Securities by a lien ranking ratably with and equal to such secured
Indebtedness, except that the foregoing restriction does not apply to (a) liens
existing on the date of the Indenture; (b) liens on assets of any corporation
existing at the time such corporation becomes a Consolidated Subsidiary; (c)
liens on assets existing at the time of acquisition thereof, or to secure the
payment of the purchase price of such assets, or to secure Indebtedness incurred
or guaranteed by the Company or a Consolidated Subsidiary for the purpose of
financing the purchase price of such assets or improvements or construction
thereof, which Indebtedness is incurred or guaranteed prior to, at the time of,
or within 360 days after such acquisition (or in the case of real property,
completion of such improvement or construction or commencement of full operation
of such property, whichever is later); (d) liens securing Indebtedness owing by
any Consolidated Subsidiary to the Company or another wholly owned domestic
Subsidiary; (e) liens on any assets of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Subsidiary or
at the time of a purchase, lease or other acquisition of the assets of a
corporation or firm as an entirety or substantially as an entirety by the
Company or a Subsidiary; (f) liens on any assets of the Company or a
Consolidated Subsidiary in favor of the United States of America or any State
thereof, or in favor of any other country, or political subdivision thereof, to
secure certain payments pursuant to any contract or statute or to secure any
Indebtedness incurred or guaranteed for the
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purpose of financing all or any part of the purchase price (or, in the case of
real property, the cost of construction) of the assets subject to such liens
(including, but not limited to, liens incurred in connection with pollution
control, industrial revenue or similar financings); (g) any extension, renewal
or replacements (or successive extensions, renewals or replacements) in whole or
in part, of any lien referred to in the foregoing clauses (a) to (f), inclusive;
(h) certain statutory liens or other similar liens arising in the ordinary
course of business by the Company or a Consolidated Subsidiary, or certain liens
arising out of governmental contracts; (i) certain pledges, deposits or liens
made or arising under workers' compensation or similar legislation or in certain
other circumstances; (j) liens created by or resulting from certain legal
proceedings, including certain liens arising out of judgments or awards; (k)
liens for certain taxes or assessments, landlord's liens and liens and charges
incidental to the conduct of the business, or the ownership of the assets of the
Company or of a Consolidated Subsidiary, which were not incurred in connection
with the borrowing of money and which do not, in the opinion of the Company,
materially impair the use of such assets in the operation of the business of the
Company or such Consolidated Subsidiary or the value of such assets for the
purposes thereof; or (l) liens on any assets of a Financing Subsidiary.
Notwithstanding the foregoing restrictions, the Company or any Consolidated
Subsidiary may create or assume any Indebtedness which is secured by a lien,
without securing the Debt Securities, provided that at the time of such creation
or assumption, and immediately after giving effect thereto, the Exempted Debt
then outstanding at such time does not exceed 20% of Consolidated Net Tangible
Assets. (Section 3.9)
Limitations on Subsidiary Debt. The Indenture provides that the Company
will not permit any Restricted Subsidiary directly or indirectly to incur any
Indebtedness for money borrowed, except that the foregoing restrictions will not
apply to the incurrence of (a) Indebtedness outstanding on the date of the
Indenture; (b) Indebtedness of a Restricted Subsidiary that represents its
assumption of Indebtedness of another Subsidiary, and Indebtedness owed by any
Restricted Subsidiary to the Company or to another Subsidiary, provided that
such Indebtedness will be at all times held by either the Company or a
Subsidiary, and provided further that upon the transfer or disposition of such
Indebtedness to someone other than the Company or another Subsidiary, the
incurrence of such Indebtedness will be deemed to be an incurrence that is not
permitted; (c) Indebtedness arising from (i) the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business; or (ii) the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the
case of daylight overdrafts) drawn against insufficient funds in the ordinary
course of business, provided that such overdraft is extinguished within five
Business Days (as defined in the Indenture) of incurrence; (d) Indebtedness
arising from guarantees of loans and advances by third parties to employees and
officers of a Restricted Subsidiary in the ordinary course of business for bona
fide business purposes, provided that the aggregate amount of such guarantees by
all Restricted Subsidiaries does not exceed $1,000,000; (e) Indebtedness
incurred by a foreign Restricted Subsidiary in the ordinary course of business;
(f) Indebtedness of any corporation existing at the time such corporation
becomes a Restricted Subsidiary or is merged into a Restricted Subsidiary or at
the time of a purchase, lease or other acquisition by a Restricted Subsidiary of
all or substantially all of the assets of such corporation; (g) Indebtedness of
a Restricted Subsidiary arising from agreements or guarantees providing for or
creating any obligations of the Company or any of its Subsidiaries incurred in
connection with the disposition of any business, property or Subsidiary,
excluding guarantees or similar credit support by a Restricted Subsidiary of
Indebtedness incurred by the acquirer of such business, property or Subsidiary
for the purpose of financing such acquisition; (h) Indebtedness of a Restricted
Subsidiary with respect to bonds, bankers' acceptances or letters of credit
provided by such Subsidiary in the ordinary course of business; (i) Indebtedness
secured by a lien permitted by the provisions regarding limitations on liens
(Section 3.9) or arising in respect of a sale and lease-back transaction
permitted by the provisions regarding such transactions (Section 3.10) or any
Indebtedness incurred to finance the purchase price or cost of construction of
improvements with respect to property or assets acquired after the date of the
Indenture; (j) Indebtedness that is issued, assumed or guaranteed in connection
with compliance by a Restricted Subsidiary with the requirements of any program,
applicable to such Restricted Subsidiary, adopted by any governmental authority
that provides for financial or tax benefits which are not available directly to
the Company; (k) Indebtedness arising from Rate Hedging Obligations incurred to
limit risks of currency or interest rate fluctuations to which a Subsidiary is
otherwise subject by virtue of the operations of its business, and not for
8
<PAGE> 10
speculative purposes; (l) Indebtedness incurred by any Financing Subsidiary; and
(m) Indebtedness incurred in connection with refinancing of any Indebtedness
described in (a), (b), (f), (g) and (i) above ("Refinancing Indebtedness"),
provided that (i) the principal amount of such Refinancing Indebtedness does not
exceed the principal amount of the Indebtedness so refinanced (plus the premiums
paid and expenses incurred in connection therewith), (ii) the Refinancing
Indebtedness has a weighted average life to maturity equal to or greater than
the weighted average life to maturity of the Indebtedness being refinanced, and
(iii) the Refinancing Indebtedness ranks no more senior, and is at least as
subordinated, as the Indebtedness being refinanced. Notwithstanding the
foregoing restrictions, Restricted Subsidiaries may incur any Indebtedness for
money borrowed that would otherwise be subject to the foregoing restrictions in
an aggregate principal amount which, together with the aggregate principal
amount of other Indebtedness (not including the Indebtedness permitted above),
does not, at the time such Indebtedness is incurred, exceed 20% of Consolidated
Net Tangible Assets. (Section 3.11)
Limitation on Sale and Lease-Back Transactions. Sale and lease-back
transactions (except such transactions involving leases for less than three
years) by the Company or any Consolidated Subsidiary of any assets are
prohibited unless (a) the Company or such Consolidated Subsidiary would be
entitled to incur Indebtedness secured by a lien on the assets to be leased in
an amount at least equal to the Attributable Debt in respect to such transaction
without equally and ratably securing the Debt Securities, or (b) the proceeds of
the sale of the assets to be leased are at least equal to their fair value as
determined by the Board of Directors of the Company and the proceeds are applied
to the purchase or acquisition (or, in the case of real property, the
construction) of assets or to the retirement of Senior Funded Indebtedness. The
foregoing limitation will not apply, if at the time the Company or any
Consolidated Subsidiary enters into such sale and lease-back transaction and,
immediately after giving effect thereto, Exempted Debt does not exceed 20% of
the Consolidated Net Tangible Assets. (Section 3.10)
Merger, Consolidation, Sale, Lease or Conveyance. The Indenture provides
that the Company will not merge or consolidate with any other corporation and
will not sell, lease or convey all or substantially all its assets to any
person, unless the Company shall be the continuing corporation, or the successor
corporation or person that acquires all or substantially all the assets of the
Company shall be a corporation organized under the laws of the United States or
a State thereof or the District of Columbia and shall expressly assume all
obligations of the Company under the Indenture and the Debt Securities issued
thereunder, and immediately after such merger, consolidation, sale, lease or
conveyance, the Company, such person or such successor corporation shall not be
in default in the performance of the covenants and conditions of the Indenture
to be performed or observed by the Company. (Section 8.1)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (each a "Global Security") that will be
deposited with, or on behalf of, a depositary ("Global Security Depositary") or
its nominee identified in the applicable Prospectus Supplement. In such a case,
one or more Global Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding Debt Securities of the series to be represented by such Global
Security or Securities. Unless and until it is exchanged in whole or in part for
Debt Securities in registered form, a Global Security may not be registered for
transfer or exchange except as a whole by the Global Security 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 nominee to a successor Depositary or a nominee of such
successor Depositary and except in the circumstances described in the applicable
Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. However, the Company
expects that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Global Security Depositary will be
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<PAGE> 11
represented by a Global Security registered in the name of the Global Security
Depositary or its nominee. Upon the issuance of such Global Security, and the
deposit of such Global Security with or on behalf of the Global Security
Depositary for such Global Security, such 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 that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents 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 on, and the transfer of
that ownership interest will be effected only through, records maintained by the
Global Security 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 on, and the transfer of that ownership interest
within such participant will be effected only through, records maintained by
such participant. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in certificated form.
The foregoing limitations and such laws may impair the ability to transfer
beneficial interests in such Global Securities.
So long as the Global Security 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. Unless otherwise specified in the applicable Prospectus
Supplement, owners of beneficial interests in such 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 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 Global Security Depositary and, if such
person is not a participant, on the procedures of the participant through which
such person owns its interest, to exercise any rights of a holder under the
Indenture. The Company understands that under existing industry practices, if
the Company requests any action of holders or an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the Global Security Depositary
would authorize the participants to give such notice or take such action, and
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 of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in principal amount of
the Debt Securities at the time outstanding of all series affected (voting as
one class), to modify the Indenture or any supplemental indenture or the rights
of the holders of the Debt Securities except that no such modification may (i)
extend the final maturity of any of the Debt Securities or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to Section 4.1
of the Indenture or the amount thereof provable in bankruptcy pursuant to
Section 4.2 of the Indenture, or impair or affect the right of any holder of the
Debt Securities to institute suit for the payment thereof without the consent of
the holder of each of the Debt Securities so affected, or (ii) reduce the
aforesaid percentage of Debt Securities, the consent of the holders of which is
required for any such modification, without the consent of the holders of all
Debt Securities then outstanding. (Section 7.2)
The Indenture also provides that the Company and the Trustee may, without
the consent of the holders of the Debt Securities, modify the Indenture or enter
into supplemental indentures (a) to convey, transfer, assign, mortgage or pledge
to the Trustee as security for the Debt Securities of one or more series any
property
10
<PAGE> 12
or assets, (b) to evidence the succession of another corporation to the Company
and the assumption by the successor corporation of the covenants, agreements and
obligations of the Company, (c) to add to the covenants of the Company such
further covenants, restrictions, conditions or provisions as the Board of
Directors of the Company and the Trustee shall consider to be for the protection
of the holders of the Debt Securities and to make the occurrence or the
occurrence and continuance of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default; provided, however,
that in respect of any such additional covenant, restriction, condition or
provision, such supplemental indenture may provide for a particular period of
grace after default or may provide for an immediate enforcement upon such Event
of Default or may limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the holders of a majority in aggregate
principal amount of the Debt Securities of such series to waive such an Event of
Default, (d) to cure any ambiguity or to correct or supplement any provision
contained in the Indenture which may be defective or inconsistent with any other
provision contained in the Indenture or to make such other provisions in regard
to matters or questions arising under the Indenture as the Board of Directors of
the Company may deem necessary or desirable and which shall not adversely affect
the interests of the holders of the Debt Securities in any material respect, (e)
to establish the form or terms of Debt Securities, and (f) to evidence or
provide for the acceptance of appointment by a successor trustee and to add to
or change any of the provisions of the Indenture as may be necessary to provide
for or facilitate the administration of the trusts created thereunder by more
than one trustee. (Section 7.1)
EVENTS OF DEFAULT
An Event of Default with respect to Debt Securities of any series issued
under the Indenture is defined in the Indenture as being: default for 30 days in
payment of any interest upon any Debt Securities of such series; default in any
payment of principal or premium, if any, upon any Debt Securities of such
series; default in the payment of any sinking fund installment payable by the
terms of the Debt Securities of such series; default by the Company in
performance of any other of the covenants or agreements in respect of the Debt
Securities of such series or the Indenture which shall not have been remedied
for a period of 90 days after written notice specifying that such notice is a
"Notice of Default" under the Indenture; certain events involving bankruptcy,
insolvency or reorganization of the Company; and any other event of default
provided in the supplemental indenture or resolution of the Company's Board of
Directors under which the series of Debt Securities are issued or in the form of
the Debt Security for such series. (Section 4.1) Unless otherwise specified in a
Prospectus Supplement, a default by the Company with respect to any Indebtedness
other than the Debt Securities will not constitute an Event of Default with
respect to the Debt Securities. The Indenture will provide that the Trustee may
withhold notice to the holders of any series of the Debt Securities of any
default (except in payment of principal of, or interest on, such series of Debt
Securities or in the payment of any sinking or purchase fund installment with
respect to such series of Debt Securities) if the Trustee considers it in the
interest of the holders of such series of Debt Securities to do so. (Section
4.11)
The Indenture provides that (a) if an Event of Default due to the default
in payment of principal or, premium, if any, or interest on, or any sinking fund
installment with respect to, any series of Debt Securities issued under such
Indenture or due to the default in the performance or breach of any other
covenant or warranty of the Company applicable to the Debt Securities of such
series but not applicable to all outstanding Debt Securities issued under such
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the Debt Securities of each
affected series issued under such Indenture and then outstanding (each such
series voting as a separate class) may then declare the principal of all Debt
Securities of such affected series and interest accrued thereon to be due and
payable immediately; and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in such Indenture
applicable to all outstanding Debt Securities issued thereunder and then
outstanding or due to certain events of bankruptcy, insolvency and
reorganization of the Company shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of all Debt
Securities issued under such Indenture and then outstanding (treated as one
class) may declare the principal of all such Debt Securities and interest
accrued thereon to be due and payable immediately, but upon certain conditions
(which include the deposit by the Company with the Trustee of a sum sufficient
to pay all matured installments of interest and principal and certain expenses
of the Trustee and the curing, waiving or
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<PAGE> 13
remedying of all Events of Default other than nonpayment or principal) such
declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal of (or premium, if any) or interest
on such Debt Securities) by the holders of a majority in principal amount of the
Debt Securities of all such affected series then outstanding. (Sections 4.1 and
4.10)
The holders of a majority in principal amount of the Debt Securities of
each series then outstanding and affected (with each series voting as a separate
class) shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee with respect to the Debt
Securities of such series under the Indenture, subject to certain limitations
specified in the Indenture, provided that the holders of such Debt Securities
shall have offered to the Trustee reasonable indemnity against expenses and
liabilities. (Sections 4.9 and 4.2(d))
The Indenture provides that no holder of Debt Securities may institute any
action against the Company under the Indenture (except actions for payment of
overdue principal or interest) unless such holder previously shall have given to
the Trustee written notice of default and continuance thereof and unless the
holders of not less than 25% in principal amount of the Debt Securities of each
affected series (with each series voting as a separate class) issued under the
Indenture and then outstanding shall have requested the Trustee to institute
such action and shall have offered the Trustee reasonable indemnity, the Trustee
shall not have instituted such action within 60 days of such request and the
Trustee shall not have received direction inconsistent with such written request
by the holders of a majority in principal amount of the Debt Securities of each
affected series (with each series voting as a separate class) issued under such
Indenture and then outstanding. (Sections 4.6, 4.7 and 4.9) At any time prior to
the evidencing to the Trustee of the taking of any action by the holders of the
percentage in aggregate principal amount of the Debt Securities of any or all
series specified in the Indenture in connection with such action, any holder of
a Debt Security may, by filing written notice with the Trustee, revoke such
action so far as concerns such security. (Section 6.5)
The Indenture will require the annual filing by the Company with the
Trustee of a written statement as to compliance with the principal covenants
contained in the Indenture. (Section 3.5)
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of the Indenture upon compliance with
certain enumerated conditions, including the Company having paid all sums
payable by the Company under the Indenture, when either (a) the Company shall
have delivered to the Trustee for cancellation all Debt Securities theretofore
authenticated or (b) all Debt Securities not theretofore delivered to the
Trustee for cancellation shall have become due and payable or are by their terms
to become due and payable within one year. (Section 9.1)
THE TRUSTEE
The Trustee under the Indenture is Bank One, Columbus, N.A. The Trustee is
an affiliate of Bank One, Indianapolis, N.A., the trustee under a separate
indenture for the Company's 6 1/2% Notes due 2004 and the Company's 6% Notes due
2006.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in any of
four ways: (i) through underwriters, (ii) through dealers, (iii) through agents,
or (iv) directly to purchasers. The Prospectus Supplement will set forth the
terms of any offering of a particular series of Debt Securities and will
include, without limitation, (i) the name or names of any underwriters, dealers
or agents with which the Company has entered into arrangements with respect to
the sale of such Debt Securities; (ii) the initial public offering or purchase
price of such Debt Securities; (iii) the principal amounts of the Debt
Securities to be purchased by any such underwriters, dealers or agents; (iv) any
underwriting discounts, commissions and other items constituting underwriters'
compensation and any other discounts, concessions or commissions allowed or
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<PAGE> 14
reallowed or paid by any underwriters to other dealers; (v) any commissions paid
to any agents; (vi) the net proceeds to the Company from the sale of such Debt
Securities; and (vii) the securities exchanges, if any, on which such Debt
Securities will be listed.
If underwriters are used in the offering of Debt Securities, the Debt
Securities being sold will be acquired by the underwriters for their own account
and may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of such resale. Unless otherwise set forth in an
applicable Prospectus Supplement, the obligations of the underwriters to
purchase such Debt Securities will be subject to certain conditions precedent
and each of the underwriters with respect to such Debt Securities will be
obligated to purchase all of the Debt Securities allocated to it if any such
Debt Securities are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If dealers are utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to such dealers, as principals. The dealers may then resell such Debt Securities
to the public at varying prices to be determined by such dealers at the time of
resale.
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of the Debt Securities in respect to which this Prospectus is delivered
will be named, and any commission payable by the Company to such agent set
forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best-efforts basis for
the period of its appointment.
Offers to purchase Debt Securities may be solicited, and sales thereof may
be made directly by the Company to institutional investors or others, who may be
deemed to be underwriters within the meaning of the Securities Act with respect
to resales thereof.
Underwriters, dealers and agents participating in the distribution of Debt
Securities may be deemed to be "underwriters," as that term is defined under the
Securities Act, and any discounts and commissions received by them and any
profit realized by them on the resale thereof may be deemed to be underwriting
discounts and commissions, under the Securities Act. Underwriters, dealers and
agents participating in the distribution of Debt Securities may be entitled
under agreements entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the Securities
Act. Such underwriters, dealers and agents may be customers of, engage in
transactions with, or perform services for the Company in the ordinary course of
business.
LEGAL MATTERS
Unless otherwise indicated in the Prospectus Supplement relating to the
Debt Securities, certain legal matters in connection with the Debt Securities
will be passed upon for the Company by Baker & Hostetler LLP, Cleveland, Ohio,
and for the underwriters, if any, by Davis Polk & Wardwell, New York, New York.
EXPERTS
The consolidated financial statements of Cardinal and its consolidated
subsidiaries as of June 30, 1996 and 1995, and for each of the three years in
the period ended June 30, 1996, have been incorporated in this Prospectus by
reference from the 1996 Cardinal Form 10-K. Such consolidated financial
statements of Cardinal and its subsidiaries, except Pyxis, have been audited by
Deloitte & Touche LLP as stated in their report which is incorporated herein by
reference from the 1996 Cardinal Form 10-K. The financial statements of Pyxis
(consolidated with those of Cardinal in the consolidated financial statements)
have been audited by Ernst & Young LLP, as stated in their report which is
incorporated herein by reference from the 1996 Cardinal Form 10-K.
Such consolidated financial statements of Cardinal and its consolidated
subsidiaries are incorporated by reference in reliance upon the respective
reports of such firms given upon their authority as experts in accounting and
auditing. Both of the foregoing firms are independent auditors.
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<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered are as follows:
<TABLE>
<S> <C>
Registration Fee -- Securities and Exchange Commission............ $106,061
Trustee's Fees and Expenses*...................................... 6,500
Accounting Fees and Expenses*..................................... 20,000
Blue Sky Fees and Expenses (including related fees and expenses of
counsel)*....................................................... 5,000
Legal Fees and Expenses*.......................................... 65,000
Printing Expenses*................................................ 40,000
Rating Agency Fees*............................................... 250,000
Miscellaneous Expenses*........................................... 7,439
--------
TOTAL................................................... $500,000
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1701.13(E) of the Ohio Revised Code sets forth conditions and
limitations governing the indemnification of officers, directors, and other
persons.
Article 6 of Cardinal's Code of Regulations contains certain
indemnification provisions adopted pursuant to authority contained in Section
1701.13(E) of the Ohio Revised Code. Cardinal's Code of Regulations provides for
the indemnification of its officers, directors, employees, and agents against
all expenses with respect to any judgments, fines, and amounts paid in
settlement, or with respect to any threatened, pending, or completed action,
suit, or proceeding to which they were or are parties or are threatened to be
made parties by reason of acting in such capacities, provided that it is
determined, either by a majority vote of a quorum of disinterested directors of
Cardinal or the shareholders of Cardinal or otherwise as provided in Section
1701.13(E) of the Ohio Revised Code, that (a) they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interest of
Cardinal; (b) in any action, suit, or proceeding by or in the right of Cardinal,
they were not, and have not been adjudicated to have been, negligent or guilty
of misconduct in the performance of their duties to Cardinal; and (c) with
respect to any criminal action or proceeding, that they had no reasonable cause
to believe that their conduct was unlawful. Section 1701.13(E) provides that to
the extent a director, officer, employee, or agent has been successful on the
merits or otherwise in defense of any such action, suit, or proceeding, he shall
be indemnified against expenses reasonably incurred in connection therewith. At
present there are no material claims, actions, suits, or proceedings pending
where indemnification would be required under these provisions, and Cardinal
does not know of any such threatened material claims, actions, suits, or
proceedings which may result in a request for such indemnification.
Cardinal has entered into indemnification contracts with certain of its
directors and executive officers. These contracts generally: (i) confirm the
existing indemnity provided to them under Cardinal's Code of Regulations and
assure that this indemnity will continue to be provided; (ii) provide that if
Cardinal does not maintain directors' and officers' liability insurance,
Cardinal will, in effect, become a self-insurer of the coverage; and (iii)
provide that, in addition, the directors and officers shall be indemnified to
the fullest extent permitted by law against all expenses (including legal fees),
judgments, fines, and settlement amounts paid or incurred by them in any action
or proceeding, including any action by or in the right of Cardinal, on account
of their service as a director, officer, employee, or agent of another
corporation or enterprise. Coverage under the contracts is excluded: (A) on
account of conduct which is finally adjudged to be knowingly fraudulent,
deliberately dishonest, or willful misconduct; or (B) if a final court of
adjudication shall determine that such
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<PAGE> 16
indemnification is not lawful; or (C) in respect of any suit in which judgment
is rendered for violations of Section 16(b) of the Securities and Exchange Act
of 1934, as amended, or similar provisions of any federal, state, or local
statutory law; or (D) on account of any remuneration paid which is finally
adjudged to have been in violation of law; or (E) as to officers who are not
directors, with respect to any act or omission which is finally adjudged to have
been a violation, other than in good faith, of Cardinal's Standards of Business
Conduct of which the officer then most recently has received written notice. The
indemnification agreements are applicable to claims asserted after their
effective date, whether arising from acts or omissions occurring before or after
their effective date, and associated legal expenses.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ --------------------------------------------------------------------------
<S> <C>
1 Proposed form of Underwriting Agreement
4.1 Indenture between the registrant and Bank One, Columbus, N.A., dated as of
, 1997
4.2 Form of Debt Securities
5 Opinion of Baker & Hostetler LLP
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Baker & Hostetler LLP (included in Exhibit 5)
24 Powers of Attorney (included on signature pages)
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bank One, Columbus, N.A.
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a posteffective 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a posteffective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement;
II-2
<PAGE> 17
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such posteffective 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; and
(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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in 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
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the 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 of the registrant 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 of whether such indemnification
by it is against the public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
II-3
<PAGE> 18
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 Dublin, State of Ohio, on April 3, 1997.
CARDINAL HEALTH, INC.
BY: /s/ ROBERT D. WALTER
------------------------------------
Robert D. Walter, Chairman and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert D. Walter, George H. Bennett, Jr., and
Paul S. Williams, and each of them, severally, as his/her attorney-in-fact and
agent, with full power of substitution and resubstitution, for him/her and in
his/her name, place, and stead, in any and all capacities, to sign any and all
pre- or post-effective amendments to this Registration Statement, and to file
the same with all exhibits hereto, and other documents with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, and each of
them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he/she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on April 3, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- --------------------------------------------
<S> <C>
/s/ ROBERT D. WALTER Chairman and Chief Executive Officer
- -------------------------------------------- (principal executive officer)
Robert D. Walter
/s/ DAVID BEARMAN Executive Vice President and Chief Financial
- -------------------------------------------- Officer (principal financial officer)
David Bearman
/s/ RICHARD J. MILLER Vice President, Controller and Principal
- -------------------------------------------- Accounting Officer
Richard J. Miller
/s/ JOHN F. FINN Director
- --------------------------------------------
John F. Finn
/s/ ROBERT L. GERBIG Director
- --------------------------------------------
Robert L. Gerbig
/s/ JOHN F. HAVENS Director
- --------------------------------------------
John F. Havens
/s/ REGINA E. HERZLINGER Director
- --------------------------------------------
Regina E. Herzlinger
</TABLE>
II-4
<PAGE> 19
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- --------------------------------------------
<S> <C>
/s/ JOHN C. KANE Director
- --------------------------------------------
John C. Kane
/s/ J. MICHAEL LOSH Director
- --------------------------------------------
J. Michael Losh
/s/ GEORGE R. MANSER Director
- --------------------------------------------
George R. Manser
/s/ JOHN B. MCCOY Director
- --------------------------------------------
John B. McCoy
/s/ JERRY E. ROBERTSON Director
- --------------------------------------------
Jerry E. Robertson
/s/ L. JACK VAN FOSSEN Director
- --------------------------------------------
L. Jack Van Fossen
/s/ MELBURN G. WHITMIRE Director
- --------------------------------------------
Melburn G. Whitmire
</TABLE>
II-5
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
------- ---------------------------------------------------------------
<C> <S>
1 Proposed form of Underwriting Agreement........................
4.1 Indenture between the registrant and Bank One, Columbus, N.A.,
dated as of , 1997...................................
4.2 Form of Debt Securities........................................
5 Opinion of Baker & Hostetler LLP...............................
12 Computation of Ratio of Earnings to Fixed Charges..............
23.1 Consent of Deloitte & Touche LLP...............................
23.2 Consent of Ernst & Young LLP...................................
23.3 Consent of Baker & Hostetler LLP (included in Exhibit 5)
24 Powers of Attorney (included on signature pages)...............
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Bank One, Columbus, N.A. .......
</TABLE>
<PAGE> 1
EXHIBIT 1
CARDINAL HEALTH, INC.
UNDERWRITING AGREEMENT
[Date]
To the Representative named
in Schedule I hereto of
the Underwriters named in
Schedule II hereto
Dear Sirs:
Cardinal Health, Inc., an Ohio corporation (the "Company"),
proposes to sell to underwriters named in Schedule II hereto (the
"Underwriters") for whom you are acting as representative (the
"Representative"), the principal amount of its securities (the "Securities")
identified in Schedule I hereto issued under an indenture (the "Indenture")
dated as of ________, 1997, between the Company and Bank One, Columbus, NA, as
trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representative", as used herein, shall each be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in
Schedule I hereto), which has become effective, for the registration
under the Act of the Securities. Such registration statement, as
amended at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies in all other
material respects with said Rule. The Company proposes to file with
the Commission pursuant to Rule 424(b) under the Act a supplement to
the form of prospectus included in such registration statement
relating to the Securities and the plan of distribution thereof and
has previously advised you of all further information (financial and
other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at
the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus";
and such supplemented form of prospectus, in the form in which it
shall be filed with the Commission pursuant to Rule 424(b) (including
the Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus". Any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424(b) is hereinafter
called the "Preliminary Final Prospectus". Any reference herein to
the Registration Statement, the Basic Prospectus, any
<PAGE> 2
Preliminary Final Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference
therein (the "Incorporated Documents") pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934 (the
"Exchange Act") on or before the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424(b) under the Act, when, prior to the
Closing Date (as hereinafter defined in Section 3 hereof), any
amendment to the Registration Statement becomes effective (including
the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final Prospectus
is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement, as amended as
of any such time, nor the Final Prospectus, as amended or supplemented
as of any such time, will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading;
provided, that the Company makes no representations or warranties as
to (1) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification of the Trustee (Form T-1)
under the Trust Indenture Act or (2) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representative specifically
for use in connection with the preparation of the Registration
Statement or the Final Prospectus.
(c) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Ohio with
corporate power and authority to own and hold under lease its
properties and conduct its business as described in the Final
Prospectus and holds all material licenses and is duly qualified to
conduct the business in which it is engaged in each jurisdiction or
place where the conduct of its business requires such licenses or
qualification and where the failure to be so licensed or qualified
would have a material adverse effect on the business or financial
condition of the Company and its subsidiaries taken as a whole.
(d) Each of the Company's significant subsidiaries (as
defined in Rule 405 under the Act) is duly organized and validly
existing in good standing under the laws of the jurisdiction of its
incorporation with corporate power and authority to own and hold under
lease its properties and to conduct its business as described in the
Final Prospectus.
(e) The Indenture has been duly and validly authorized,
executed and delivered by the Company and, assuming due execution and
delivery by the Trustee, is a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and subject to the
applicability of general principles of equity, and has been duly
qualified under the Trust Indenture Act.
<PAGE> 3
(f) The Securities have been duly authorized and, when
executed by the Company and authenticated by the Trustee in accordance
with the Indenture and delivered to you against payment therefor in
accordance with the terms hereof, will have been validly issued and
delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and subject to the
applicability of general principles of equity, and the Securities
conform in all material respects to the description thereof in the
Final Prospectus.
(g) There are no legal or governmental proceedings pending,
or to the knowledge of the Company threatened, required to be
described in the Registration Statement or the Final Prospectus which
are not described as required, and there is no contract or document of
a character required to be described in the Registration Statement or
the Final Prospectus or to be filed as an exhibit to the Registration
Statement or any Incorporated Document which is not described or filed
as required.
(h) The Company is not in violation of its charter or code of
regulations or in default in any material respect in the performance
of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any
indenture, material lease or loan agreement. The issue and sale of
the Securities, the execution and delivery of this Agreement, the
performance of the obligations of the Company set forth herein and the
consummation of the transactions contemplated hereby will not conflict
with or constitute a breach of, or default under, the charter or code
of regulations of the Company or any of its subsidiaries, any material
agreement, indenture or other instrument to which the Company or any
of its subsidiaries is a party or by which any of them or any of their
property is bound, or any law, administrative regulation or court
decree applicable to the Company or any of its subsidiaries.
(i) Neither the execution and delivery of this Agreement, nor
the fulfillment of the terms herein set forth and the consummation of
the transactions herein contemplated require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except such as have
been obtained under the Act and the Trust Indenture Act or such as may
be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters).
(j) This Agreement has been duly authorized, executed and
delivered by the Company.
(k) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for
the Securities shall be made at the location, date and time specified in
Schedule I hereto (or such later date not later than five Business Days (as
hereinafter defined) after such specified date as the Representative and the
Company shall designate), which date and time may be postponed by agreement
between the Representative and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Securities shall be made to the
Representative for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representative of the purchase
price thereof to or upon the order of the Company by same day funds check or
Federal Funds wire
<PAGE> 4
transfer or as otherwise agreed by the Company and the Representative.
Certificates for the Securities shall be registered in such names and in such
denominations as the Representative may request not less than one full Business
Day in advance of the Closing Date. The term "Business Day" means each day
which is neither a Saturday, Sunday or other day on which banking institutions
in New York, New York are authorized or required by law or executive order to
be closed.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 4:00 PM on the Business Day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the later of (i) termination of the offering of
the Securities as determined by the Representative and as evidenced by
written notice thereof to the Company from the Representative or (ii)
the Closing Date, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus
but excluding any prospectus supplement relating to a subsequent
issuance of securities) to the Basic Prospectus unless the Company has
furnished the Representative a copy for the Representative's review a
reasonable time prior to filing thereof. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424(b) under the Act. The Company
will promptly advise the Representative (i) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424(b),
(ii) when any amendment to the Registration Statement relating to the
Securities shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use all reasonable efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the first sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance.
(c) The Company will make generally available within the
meaning of Section 11(a) of the Act to its security holders an earning
statement, which need not be audited, covering a twelve-month period
commencing after the date of this Agreement and ending not later than
15 months thereafter as soon as practicable following the end of such
period, which earning statement shall satisfy the provisions of
Section 11(a) of the Act and may consist of earning statements
covering successive fiscal quarters.
(d) The Company will furnish to the Representative and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any
<PAGE> 5
Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representative may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering unless otherwise agreed with the
Representative.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representative may reasonably designate and will maintain such
qualifications in effect so long as required for the distribution of
the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
the service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is
not now so subject.
(f) Until the Business Day following the Closing Date, the
Company will not, without the prior consent of the Representative,
offer, sell, contract to sell, or otherwise dispose of any debt
securities of the Company which mature more than one year following
the Closing Date and which are substantially similar to the
Securities.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company contained herein as of the date hereof, as of the date
of the effectiveness of any amendment to the Registration Statement filed prior
to the Closing Date (including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened, and the Final Prospectus shall have been filed with the
Commission not later than 5:00 P.M., New York City time, on the second
Business Day following the date hereof.
(b) The Company shall have furnished to the Representative
the opinion of Baker & Hostetler LLP, counsel to the Company, dated the
Closing Date, to the effect that:
(i) the Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Ohio;
(ii) each significant subsidiary of the
Company is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of
incorporation;
(iii) except for the order of the Commission
declaring the Registration Statement effective and the
Indenture qualified and for permits and similar authorizations
required under the securities or Blue Sky laws of certain
jurisdictions (as to which such counsel need not express an
opinion), no consent, approval, authorization or other order of
any regulatory body, administrative agency or other
governmental body is legally required for the valid issuance
and sale of the Securities to the Underwriters under this
Agreement;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Indenture has been duly and validly
authorized, executed and delivered by the Company and,
assuming due execution and delivery by the Trustee, is a valid
and binding agreement of the Company and has been duly
qualified under the Trust Indenture Act;
<PAGE> 6
(vi) the Securities have been duly and validly
authorized and executed by the Company and, assuming due
authentication of such Securities by the Trustee, upon
delivery to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly
issued and delivered, and will constitute valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(vii) the Registration Statement and all
post-effective amendments, if any, have become effective under
the Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose
are pending before or contemplated by the Commission and the
filing of the Final Prospectus pursuant to Rule 424(b) has
been made in accordance with Rule 424(b);
(viii) (1) each of the Incorporated Documents
complies as to form in all material respects with the Exchange
Act and the rules and regulations of the Commission thereunder
and (2) the Registration Statement and the Final Prospectus and
any supplements or amendments thereto (including the
Incorporated Documents) comply as to form in all material
respects with the Act;
(ix) the statements in the Final Prospectus under
the captions "Description of Debt Securities" and [Description
of Securities], insofar as such statements constitute a summary
of the documents, proceedings and other legal matters referred
to therein, fairly present the information called for by the
Act with respect to such documents, proceedings and other legal
matters;
(x) there are no legal or governmental
proceedings known to such counsel pending or threatened
required to be described in the Registration Statement or the
Final Prospectus which are not described as required, and
there is no contract or document known to such counsel of a
character required to be described in the Registration
Statement or the Final Prospectus or to be filed as an exhibit
to the Registration Statement which is not described or filed
as required; and
(xi) the execution, delivery and performance of
this Agreement and the Indenture, compliance by the Company
with all provisions hereof and thereof and the consummation of
the transactions contemplated hereby and thereby do not
conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of
the Company or any of its significant subsidiaries or any
material agreement, indenture or other instrument known to
such counsel to which the Company or any of its significant
subsidiaries is a party or by which any of them is bound, or
(assuming compliance with all applicable state securities and
Blue Sky laws and without opining as to the enforceability of
rights of indemnity or contribution under applicable law)
violate any law, administrative regulation or ruling or court
decree known to such counsel applicable to the Company or any
of its significant subsidiaries or any of their respective
property.
In rendering the opinion set forth above, Baker & Hostetler LLP
may (A) rely on the opinion of Davis Polk & Wardwell referred to in
paragraph (c) below as to all matters of New York law opined upon in
such opinion of Davis Polk & Wardwell; (B) assume the genuineness,
without independent investigation, of all signatures on all documents
examined by such firm, the conformity to original documents of all
documents submitted to such firm as certified or facsimile copies and
the authenticity of all such documents; and (C) rely as to matters of
law of any State other than Ohio upon the opinion of counsel licensed
to practice in such state and satisfactory to the Representative
<PAGE> 7
(provided that such opinion shall state that the Representative and
Baker & Hostetler are entitled to so rely) and as to certain matters
of fact, upon certificates and written statements of officers and
employees of, and accountants for, the Company.
Such counsel shall have also furnished to the Representative a
written statement dated the Closing Date to the effect that, based
upon their participation in the preparation of the Registration
Statement and the Final Prospectus and any amendments and supplements
thereto and upon their review and discussion of the contents thereof,
but without independent check or verification except as specified,
nothing has come to such counsel's attention which would lead them to
believe that the Registration Statement at the time it became
effective and at the date of this Agreement contained any untrue
statement of any material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus (as amended or
supplemented, if applicable) contains any untrue statement of a
material fact or omits to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such counsel may state
that, in rendering the opinion in (viii) above and the written
statement referred to in the preceding sentence, they are not
expressing any opinion on the financial statements and financial
exhibits included therein or omitted therefrom and that they are not
responsible for the adequacy or accuracy of the derivation or
compilation from the Company's accounting records of the financial
data included in the Registration Statement or the Final Prospectus
and any amendments and supplements thereto.
(c) The Representative shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Final
Prospectus and other related matters as the Representative may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters. In rendering their opinion,
Davis Polk & Wardwell may rely on the opinion of Baker & Hostetler
referred to in paragraph (b) above as to all matters of Ohio law.
(d) The Company shall have furnished to the Representative a
certificate of the Company signed by the Chairman of the Board, the
President or any Vice President of the Company dated the Closing Date,
to the effect that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied in all
material respects with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the financial condition, earnings,
business or properties of the Company and its subsidiaries on a
consolidated basis, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Deloitte & Touche LLP shall have
furnished to the Representative a letter or letters (which may refer
to letters previously delivered to the Representative, a copy of which
shall be attached, in which case the letter provided at the Closing
Date shall state that the previous
<PAGE> 8
letter can be relied on), dated the Closing Date, in form and
substance satisfactory to the Representative, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference in the Final Prospectus.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus and prior to the Closing Date, there shall not have been
any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its
subsidiaries on a consolidated basis, the effect of which is, in the
reasonable judgment of the Representative, so material and adverse as
to make it impractical to proceed with the offering or the delivery of
the Securities as contemplated by the Registration Statement and the
Final Prospectus.
(g) Subsequent to the execution of this Agreement and prior
to the Closing Date, there shall not have been any downgrading in the
ratings of any of the Company's debt securities, by any "nationally
recognized statistical rating organization," as such term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act or any
public announcement by any such organization that it has under
surveillance or review with negative implications, its rating of any
of the Company's debt securities (or proposed rating of the
Securities).
(h) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled to the reasonable satisfaction of the Representative when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be to the reasonable
satisfaction of the Representative and its counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Representative. Notice of such cancellation
shall be given to the Company by telephone or in the manner described in
Section II hereof.
6. Expenses. (a) The Company covenants and agrees with the
Representative that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Final Prospectus and the Final
Prospectus and amendments and supplements thereto and the mailing and delivery
of copies thereof to Underwriters and dealers; (ii) the cost of printing this
Agreement, the Indenture, any blue sky and legal investment memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws, including the
reasonable fees and disbursements of counsel for the Representative in
connection with such qualification and in connection with any blue sky and
legal investment surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) the cost of preparing the Securities; (vi) the
fees and expenses of the Trustee and the fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Securities; and (vii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
It is understood, however, that, the Representative will pay all of its own
costs and expenses, including the fees of its counsel, transfer taxes on resale
of any of the Securities by it, and any advertising expenses connected with
the Securities.
7. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision
<PAGE> 9
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
reasonable and detailed out-of-pocket expenses (including reasonable fees and
disbursements of counsel as stated with particularity) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them as such expenses are incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Representative specifically for use in connection with
the preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented); provided that the Company has delivered to the
several Underwriters copies of the Final Prospectus (or the Final Prospectus as
amended or supplemented) in requisite quantities on a timely basis to permit
such delivery. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representative
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph on the cover page, and
under the heading "Underwriting", in any Preliminary Final Prospectus or Final
Prospectus constitute the only information furnished in writing by or on behalf
of the Underwriters for inclusion in the documents referred to in the foregoing
indemnity and the Representative hereby confirms that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
<PAGE> 10
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate counsel (in addition to any local counsel), approved by the
Representative in the case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). The indemnifying party shall not be liable for
any settlement of any such action effected without its written consent, but if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify the
indemnified parties against any loss or liability by reason of such settlement
or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Final Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions
<PAGE> 11
of this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Securities set forth opposite their names in Schedule II hereto bears
to the aggregate principal amount of Securities set forth opposite the names of
all the remaining Underwriters) the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, that in the event that
the aggregate principal amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriter or Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given
to the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in securities generally on the New York Stock Exchange,
American Stock Exchange or The Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared either by Federal or state
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in the judgment
of the Representative, impracticable or inadvisable to market the Securities or
to enforce contracts for the sale of the Securities.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 6, 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or telexed and confirmed to it, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telexed and confirmed to it at 5555 Glendon Court, Dublin, Ohio 43016,
Attention: Chairman.
<PAGE> 12
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
CARDINAL HEALTH, INC.
By:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 13
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s) (including, address for notice):
Title, Purchase Price and Description of Securities:
Title:
Principal Amount and Currency:
Issue Price:
Underwriters' Discount:
Purchase Price:
Sinking Fund Provisions:
Redemption Provisions:
Maturity Date:
Interest Rate:
Interest Payment Dates:
Interest Accrues From:
Closing Date, Time and Location:
<PAGE> 14
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ ----------------
<S> <C>
$
$
$
----------------
Total $
</TABLE>
<PAGE> 1
EXHIBIT 4.1
CARDINAL HEALTH, INC.
AND
BANK ONE, COLUMBUS, NA, Trustee
Indenture
Dated as of , 1997
----------
<PAGE> 2
TABLE OF CONTENTS
----------
Page
----
PARTIES ................................................................... 1
RECITALS .................................................................. 1
Authorization of Indenture .......................................... 1
Compliance with Legal Requirements .................................. 1
Purpose of and Consideration for Indenture .......................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined ........................................ 1
Attributable Debt ............................................ 2
Board of Directors ........................................... 2
Business Day ................................................. 2
Commission ................................................... 2
Consolidated Net Tangible Assets ............................. 3
Consolidated Subsidiary ...................................... 3
Corporate Trust Office ....................................... 3
Depositary ................................................... 3
Event of Default ............................................. 3
Exempted Debt ................................................ 3
Financing Subsidiary ......................................... 4
Funded Indebtedness .......................................... 4
Global Security .............................................. 4
Holder, holder of Securities,
Securityholder .......................................... 4
Indebtedness ................................................. 4
Indenture .................................................... 4
Interest ..................................................... 4
Issuer ....................................................... 4
Officers' Certificate ........................................ 4
Opinion of Counsel ........................................... 4
Original Issue Discount Security ............................. 4
Outstanding .................................................. 4
Person ....................................................... 6
Principal .................................................... 6
i
<PAGE> 3
Page
----
Rate Hedging Obligations ............................... 6
Responsible officer .................................... 7
Restricted Subsidiary .................................. 7
Security or Securities ................................. 7
Senior Funded Indebtedness ............................. 7
Subsidiary ............................................. 7
Trustee ................................................ 7
Trust Indenture Act of 1939 ............................ 7
vice president ......................................... 8
Yield to Maturity ...................................... 8
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally ............................................. 8
SECTION 2.2. Form of Trustee's Certificate
of Authentication ...................................... 8
SECTION 2.3. Amount Unlimited; Issuable in Series ........................ 9
SECTION 2.4. Authentication and Delivery of
Securities ............................................. 10
SECTION 2.5. Execution of Securities ..................................... 12
SECTION 2.6. Certificate of Authentication ............................... 13
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest ....................... 13
SECTION 2.8. Registration, Transfer and Exchange ......................... 14
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities .................................. 17
SECTION 2.10.Cancellation of Securities;
Destruction Thereof .................................... 18
SECTION 2.11.Temporary Securities ........................................ 18
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1. Payment of Principal and Interest ........................... 19
SECTION 3.2. Offices for Payments, etc ................................... 19
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee ...................................... 20
SECTION 3.4. Paying Agents ............................................... 20
SECTION 3.5. Certificate of the Issuer ................................... 21
SECTION 3.6. Securityholders' Lists ...................................... 21
SECTION 3.7. Reports by the Issuer ....................................... 21
ii
<PAGE> 4
Page
----
SECTION 3.8. Reports by the Trustee ...................................... 22
SECTION 3.9. Limitations on Liens ........................................ 22
SECTION 3.10. Limitation on Sale and Lease-Back .......................... 25
SECTION 3.11. Limitations on Subsidiary
Indebtedness ........................................... 25
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default ......................... 29
SECTION 4.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt ................................. 32
SECTION 4.3. Application of Proceeds ..................................... 35
SECTION 4.4. Suits for Enforcement ....................................... 36
SECTION 4.5. Restoration of Rights on Abandonment
of Proceedings ......................................... 36
SECTION 4.6. Limitations on Suits by
Securityholders ........................................ 36
SECTION 4.7. Unconditional Right of
Securityholders to Institute
Certain Suits .......................................... 37
SECTION 4.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default ................................................ 37
SECTION 4.9. Control by Securityholders .................................. 38
SECTION 4.10. Waiver of Past Defaults .................................... 39
SECTION 4.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances .......................................... 39
SECTION 4.12. Right of Court to Require Filing
of Undertaking to Pay Costs ............................ 40
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default ................................................ 40
SECTION 5.2. Certain Rights of the Trustee ............................... 42
SECTION 5.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof ........................ 44
SECTION 5.4. Trustee and Agents May Hold
iii
<PAGE> 5
Page
----
Securities; Collections, etc ........................... 44
SECTION 5.5. Moneys Held by Trustee ...................................... 44
SECTION 5.6. Compensation and Indemnification
of Trustee and Its Prior Claim ......................... 44
SECTION 5.7. Right of Trustee to Rely on
Officers' Certificate, etc ............................. 45
SECTION 5.8. Persons Eligible for Appointment
as Trustee ............................................. 45
SECTION 5.9 Resignation and Removal; Appointment
of Successor Trustee ................................... 45
SECTION 5.10.Acceptance of Appointment by
Successor Trustee ...................................... 47
SECTION 5.11.Merger, Conversion, Consolidation or
Succession to Business of Trustee ...................... 48
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1. Evidence of Action Taken by
Securityholders ........................................ 49
SECTION 6.2. Proof of Execution of Instruments and
of Holding of Securities; Record
Date ................................................... 49
SECTION 6.3. Holders to Be Treated as Owners ............................. 50
SECTION 6.4. Securities Owned by Issuer Deemed Not
Outstanding ............................................ 50
SECTION 6.5. Right of Revocation of Action Taken ......................... 51
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1. Supplemental Indentures Without
Consent of Securityholders ............................. 52
SECTION 7.2. Supplemental Indentures With Consent
of Securityholders ..................................... 53
SECTION 7.3. Effect of Supplemental Indenture ............................ 54
SECTION 7.4. Documents to Be Given to Trustee ............................ 55
SECTION 7.5. Notation on Securities in Respect of
Supplemental Indentures ................................ 55
iv
<PAGE> 6
Page
----
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1. Issuer may Consolidate, etc., on
Certain Terms .......................................... 55
SECTION 8.2. Successor Corporation Substituted ........................... 56
SECTION 8.3. Opinion of Counsel to Trustee ............................... 56
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1. Satisfaction and Discharge of
Indenture .............................................. 57
SECTION 9.2. Application by Trustee of Funds
Deposited for Payment of Securities .................... 58
SECTION 9.3. Repayment of Moneys Held by Paying
Agent .................................................. 58
SECTION 9.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Three
Years .................................................. 58
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability ................................... 59
SECTION 10.2. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders ................. 59
SECTION 10.3. Successors and Assigns of Issuer
Bound by Indenture ..................................... 59
SECTION 10.4. Notices and Demands on Issuer,
Trustee and Securityholders ............................ 60
SECTION 10.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Contained Therein ......... 60
SECTION 10.6. Payments Due on Saturdays, Sundays
and Holidays ........................................... 62
v
<PAGE> 7
Page
----
SECTION 10.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939 ............................................ 62
SECTION 10.8. Ohio Law to Govern ......................................... 62
SECTION 10.9. Counterparts ............................................... 62
SECTION 10.10. Effect of Headings ........................................ 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1. Applicability of Article ................................... 62
SECTION 11.2. Notice of Redemption; Partial
Redemptions ............................................ 63
SECTION 11.3. Payment of Securities Called for
Redemption ............................................. 64
SECTION 11.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption .............................................. 65
SECTION 11.5. Mandatory and Optional Sinking
Funds .................................................. 65
TESTIMONIUM .............................................................. 69
SIGNATURES ............................................................... 69
ACKNOWLEDGMENTS .......................................................... 70-71
vi
<PAGE> 8
THIS INDENTURE, dated as of , 1997 between CARDINAL HEALTH,
INC., an Ohio corporation (the "Issuer"), and BANK ONE, COLUMBUS, NA, a national
banking association duly incorporated and existing under the laws of the United
States of America (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time
of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such
<PAGE> 9
terms in said Trust Indenture Act and in said Securities Act as in force at the
date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. 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. The terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.
"Attributable Debt" when used in connection with a sale and
lease-back transaction shall mean, as of any particular time, the lesser of (a)
the fair value of the assets subject to such arrangement or (b) the aggregate of
present values (discounted at a rate per annum equal to the weighted average
Yield to Maturity of the Securities of all series then outstanding and
compounded semi-annually) of the obligations of the Issuer or any Consolidated
Subsidiary for net rental payments during the remaining term of all leases
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended). The term "net rental payments" under any
lease of any period shall mean the sum of the rental and other payments required
to be paid in such period by the lessee thereunder, not including, however, any
amounts required to be paid by such lessee (whether or not designated as rental
or additional rental) on account of maintenance and repairs, reconstruction,
insurance, taxes, assessments, water rates or similar charges required to be
paid by such lessee thereunder or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales, maintenance and repairs,
reconstruction, insurance, taxes, assessments, water rates or similar charges.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in
the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized by law or regulation 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
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the execution and delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets after deducting therefrom (a) all current liabilities (excluding any
thereof constituting Funded Indebtedness by reason of being renewable or
extendible) and (b) all goodwill, tradenames, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the
most recent balance sheet of the Issuer and its Consolidated Subsidiaries and
computed in accordance with generally accepted accounting principles.
"Consolidated Subsidiary" means any Subsidiary substantially all the
property of which is located, and substantially all the operations of which are
conducted, in the United States of America whose financial statements are
consolidated with those of the Issuer in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 100 East Broad Street, Columbus, Ohio
43271.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 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 Global Securities of that series.
"Event of Default" means any event or condition specified as such in
Section 4.1 which shall have continued for the period of time, if any, therein
designated.
"Exempted Debt" means the sum of the following items outstanding as
of the date Exempted Debt is to be determined: (a) Indebtedness of the Issuer
and its Consolidated Subsidiaries incurred after the date of this Indenture and
secured by liens not permitted to be created or assumed pursuant to Section 3.9
of the Indenture, and (b)
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Attributable Debt of the Issuer and its Consolidated Subsidiaries in respect of
every sale and lease-back transaction entered into after the date of this
Indenture, other than those leases expressly permitted by Section 3.10.
"Financing Subsidiary" means any Subsidiary, including their
Subsidiaries, engaged in one or more of the following activities;
(1) the business of making loans or advances, extending credit
or providing financial accommodations (including leasing new or used
products) to other Persons;
(2) the business of purchasing notes, accounts receivable
(whether or not payable in installments), conditional sale contracts
or other obligations of other Persons originating in sales at
wholesale or retail; or
(3) any other business as may be reasonably incidental to
those described in (1) and (2) above, including the ownership and
use of property in connection therewith.
"Funded Indebtedness" means all Indebtedness 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" means a Security evidencing all or a part of a
series of Securities, issued to the Depositary for such series in accordance
with Section 2.4, and bearing the legend prescribed in Section 2.4.
"Holder", "holder of Securities", "Securityholder" or other similar
terms mean the registered holder of any Security.
"Indebtedness" means all items classified as indebtedness on the
most recently available balance sheet of the Issuer and its Consolidated
Subsidiaries, in accordance with generally accepted accounting principles.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
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"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Five)
Cardinal Health, Inc., an Ohio corporation, and, subject to Article Eight, its
successors and assigns.
"Officers' Certificate" means a certificate signed by the chairman
of the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5, if and to the extent required hereby.
"Original Issue Discount Security" means any Security that 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 4.1.
"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the
holders of such Securities (if the Issuer shall act as its own paying
agent), provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
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(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as
to which proof satisfactory to the Trustee is presented that such Security
is held by a person in whose hands such Security is a legal, valid and
binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.1.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Rate Hedging Obligations" means any and all obligations of any
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under:
(1) any and all agreements, devices or arrangements designed
to protect at least one of the parties thereto from the fluctuations
of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions,
including, but not limited to, Dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and
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(2) any and all cancellations, buybacks, reversals,
terminations or assignments of any of the items in (1) above.
"Responsible Officer" when used with respect to the Trustee means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any trust officer, any
assistant trust officer, any assistant vice president, any assistant cashier,
any assistant secretary, any assistant treasurer, or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means a "significant subsidiary" (as defined
in Article 1, Rule 1-02 of Regulation S-X, promulgated under the Securities Act
of 1933 as amended from time to time), including its Subsidiaries.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Senior Funded Indebtedness" means any Funded Indebtedness of the
Issuer that is not subordinated in right of payment to any other Indebtedness of
the Issuer.
"Subsidiary" means any corporation of which at least a majority of
the outstanding stock having the voting power to elect a majority of the Board
of Directors of such corporation (irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by the Issuer, or by one or more of
the Subsidiaries, or by the Issuer and one or more Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture
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Act of 1939 as in force at the date as of which this Indenture was originally
executed.
"vice president" when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
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BANK ONE,COLUMBUS, NA,
as Trustee
By______________________
Authorized Officer
SECTION 2.3 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. There shall be
established in or pursuant to a resolution of the Board of Directors and 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 Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11 or 11.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in
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whole or in part, at the option of the Issuer, pursuant to any sinking
fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any 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
4.1 or provable in bankruptcy pursuant to Section 4.2;
(10) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
(11) any trustees, authenticating or paying agents, transfer agents
or registrars or any other agents with respect to the Securities of such
series;
(12) whether the Securities of the series or any portion thereof
will be issuable as Global Securities; and
(13) if the Securities of the series are issuable in whole or in
part as one or more Global Securities, the identity of the Depositary for
such Global Security or Securities.
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 resolution of the Board of Directors or in any such indenture
supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall
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thereupon authenticate and deliver such Securities to or upon the written order
of the Issuer, signed by both (a) the Chairman of its Board of Directors, or any
vice chairman of its Board of Directors, or its president or any vice president
and (b) by its treasurer or any assistant treasurer, without any further action
by the Issuer. 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 5.1) shall be fully
protected in relying upon:
(1) a certified copy of any resolution or resolutions of the Board
of Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of
Directors relating to such series, in each case certified by the Secretary
or an Assistant Secretary of the Issuer;
(3) an executed supplemental indenture, if any;
(4) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 2.1 and 2.3, respectively and
prepared in accordance with Section 10.5;
(5) an Opinion of Counsel, prepared in accordance with Section 10.5,
to the effect that
(a) the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Sections 2.1 and 2.3
in conformity with the provisions of this Indenture;
(b) such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Issuer;
(c) all laws and requirements in respect of the execution and
delivery by the Issuer of the Securities have been complied with;
and
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(d) covering such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Global Securities, then the Issuer shall execute and the Trustee shall
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 issued in such form and not yet cancelled,
(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 its custodian 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 a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
SECTION 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Issuer by both (a) the chairman of its Board of Directors or
any vice chairman of its Board of Directors or its president or any vice
president and (b) by its treasurer or any assistant treasurer or its secretary
or any assistant secretary. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and
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delivered by the Trustee or disposed of by the Issuer, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Security had not ceased to be such officer of the Issuer;
and any Security may be signed on behalf of the Issuer by such persons as, at
the actual date of the execution of such Security, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable as registered securities without
coupons and in denominations as shall be specified as contemplated by Section
2.3. In the absence of any such specification with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any multiple thereof. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.3.
The person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case
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such defaulted interest shall be paid to the persons in whose names Outstanding
Securities for such series are registered at the close of business on a
subsequent record date (which shall be not less than five Business Days prior to
the date of payment of such defaulted interest) established by notice given by
mail by or on behalf of the Issuer to the holders of Securities not less than 15
days preceding such subsequent record date. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) shall mean the date specified as such in the terms of the Securities
of any particular series, or, if no such date is so specified, if such interest
payment date is the first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth day
of a calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
keep or cause to be kept at each office or agency to be maintained for the
purpose as provided in Section 3.2 a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Securities as in this Article provided. Such register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable times
such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security
of any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Any Security or Securities of any series may be exchanged for a
Security or Securities of the same series in other authorized denominations, in
an equal aggregate principal amount. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
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All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made for
any such transaction.
Notwithstanding any other provision of this Section 2.8, 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 any Global Securities of any
series notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Global Securities or if at any time the Depositary for such
Global Securities shall no longer be eligible under applicable law, the Issuer
shall appoint a successor Depositary eligible under applicable law with respect
to such Global Securities. If a successor Depositary eligible under applicable
law for such Global Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such ineligibility,
the Issuer will execute, and the Trustee, upon receipt of the Issuer's order for
the authentication and delivery of definitive Securities of such series and
tenor, will authenticate and deliver Securities of such series and tenor, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of such Global Securities, in exchange for such Global
Securities.
The Issuer may at any time and in its sole discretion determine that
any Global Securities of any series shall no longer be maintained in global
form. In such event the Issuer will execute, and the Trustee, upon receipt of
the Issuer's order for the authentication and delivery of definitive Securities
of such series and tenor, will authenticate and deliver, Securities of such
series and
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tenor in any authorized denominations, in an aggregate principal amount equal to
the principal amount of such Global Securities, in exchange for such Global
Securities.
Any time the Securities of any series are not in the form of Global
Securities pursuant to the preceding two paragraphs, the Issuer agrees to supply
the Trustee with a reasonable supply of certificated Securities without the
legend required by Section 2.4 and the Trustee agrees to hold such Securities in
safekeeping until authenticated and delivered pursuant to the terms of this
Indenture.
If established by the Issuer pursuant to Section 2.3 with respect to
any Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for Securities of the same
series and tenor in definitive form on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Securities
of the same series and tenor, of any authorized denominations 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.
Securities issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed, or (b) any Securities selected, called or being
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called for redemption except, in the case of any Security where public notice
has been given that such Security is to be redeemed in part, the portion thereof
not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any officer of the Issuer, the Trustee
shall authenticate and deliver, a new Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer 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. In case any Security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
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Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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 (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and deliver
a certificate of destruction to the Issuer. If the Issuer shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be
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appropriate. Every temporary Security shall be executed by the Issuer and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.2, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
of such series a like aggregate principal amount of definitive Securities of the
same series of authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Unless otherwise specified in
accordance with Section 2.3, each instalment of interest on the Securities of
any series may be paid by mailing checks for such interest payable to or upon
the written order of the holders of Securities entitled thereto as they shall
appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will maintain in Columbus, Ohio or in
any other city where the Corporate Trust Office of any successor Trustee may be
located, the following for each series: an office or agency (a) where the
Securities may be presented for payment, (b) where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) where notices and demands to or upon the Issuer in respect of
the Securities or of this Indenture may be served. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Unless otherwise specified in accordance with
Section 2.3, the Issuer hereby initially designates the Corporate Trust Office
of the Trustee, as the office to be maintained by it for each such purpose. In
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case the Issuer shall fail to so designate or maintain any such office or agency
or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 5.9, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such
series when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the
failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of
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such series a sum sufficient to pay such principal or interest so becoming due.
The Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 9.3 and 9.4.
SECTION 3.5 Certificate of the Issuer. The Issuer will furnish to
the Trustee on or before March 31 in each year (beginning with 1994) a brief
certificate (which need not comply with Section 10.5) from the principal
executive, financial or accounting officer of the Issuer as to his or her
knowledge of the Issuer's compliance with all conditions and covenants under
this Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Indenture).
SECTION 3.6 Securityholders' Lists. If and so long as the Trustee
shall not be the Security registrar for the Securities of any series, the Issuer
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.7 Reports by the Issuer. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information,
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documents, and other reports which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934.
SECTION 3.8 Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year following the date hereof, so long as any
Securities are outstanding hereunder, and shall be dated as of a date convenient
to the Trustee no more than 60 nor less than 45 days prior thereto.
SECTION 3.9 Limitations on Liens. The Issuer will not create or
assume, and will not permit any Consolidated Subsidiary to create or assume, any
Indebtedness for money borrowed which is secured by a mortgage, pledge, security
interest or lien ("liens") of or upon any assets, whether now owned or hereafter
acquired, of the Issuer or any such Consolidated Subsidiary without equally and
ratably securing the Securities by a lien ranking ratably with and equal to (or
at the Issuer's option prior to) such secured Indebtedness. The foregoing
restriction, however, will not apply to:
(a) liens existing on the date of this Indenture;
(b) liens on any assets of any corporation existing at the time such
corporation becomes a Consolidated Subsidiary;
(c) liens on any assets existing at the time of acquisition of such
assets by the Issuer or a Consolidated Subsidiary, or liens to secure the
payment of all or any part of the purchase price of such assets upon the
acquisition of such assets by the Issuer or a Consolidated Subsidiary or
to secure any indebtedness incurred or guaranteed by the Issuer or a
Consolidated Subsidiary prior to, at the time of, or within 360 days after
such acquisition (or in the case of real property, the completion of
construction (including any improvements on an existing asset) or
commencement of full operation of such asset, whichever is later) which
indebtedness is incurred or guaranteed for the purpose of financing all or
any part of the purchase price thereof or, in the case of real property,
construction or improvements thereon; provided, however, that in the case
of any such acquisition, construction or improvement, the lien shall not
apply to any assets theretofore owned by the Issuer or a Consolidated
Subsidiary, other
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than, in the case of any such construction or improvement, any real
property on which the property so constructed, or the improvement, is
located;
(d) liens on any assets to secure indebtedness of a Consolidated
Subsidiary to the Issuer or to another wholly-owned domestic Subsidiary;
(e) liens on any assets of a corporation existing at the time such
corporation is merged into or consolidated with the Issuer or a Subsidiary
or at the time of a purchase, lease or other acquisition of the assets of
a corporation or firm as an entirety or substantially as an entirety by
the Issuer or a Subsidiary;
(f) liens on any assets of the Issuer or a Consolidated Subsidiary
in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the
United States of America or any State thereof, or in favor of any other
country, or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute or
to secure any indebtedness incurred or guaranteed for the purpose of
financing all or any part of the purchase price (or, in the case of real
property, the cost of construction), of the assets subject to such liens
(including, but not limited to, liens incurred in connection with
pollution control, industrial revenue or similar financings);
(g) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any lien referred to in
the foregoing clauses (a) to (f), inclusive; provided, however, that the
principal amount of indebtedness secured thereby shall not exceed the
principal amount of indebtedness so secured at the time of such extension,
renewal or replacement and that such extension, renewal or replacement
shall be limited to all or a part of the assets which secured the lien so
extended, renewed or replaced (plus improvements and construction on such
real property);
(h) liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehousemen's, vendors' or other
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similar liens arising in the ordinary course of business, or governmental
(federal, state or municipal) liens arising out of contracts for the sale
of products or services by the Issuer or any Consolidated Subsidiary, or
deposits or pledges to obtain the release of any of the foregoing liens;
(i) pledges, liens or deposits under worker's compensation laws or
similar legislation and liens or judgments thereunder which are not
currently dischargeable, or in connection with bids, tenders, contracts
(other than for the payment of money) or leases to which the Issuer or any
Consolidated Subsidiary is a party, or to secure public or statutory
obligations of the Issuer or any Consolidated Subsidiary, or in connection
with obtaining or maintaining self-insurance or to obtain the benefits of
any law, regulation or arrangement pertaining to unemployment insurance,
old age pensions, social security or similar matters, or to secure surety,
appeal or customs bonds to which the Issuer or any Consolidated Subsidiary
is a party, or in litigation or other proceedings such as, but not limited
to, inter-pleader proceedings, and other similar pledges, liens or
deposits made or incurred in the ordinary course of business;
(j) liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including liens arising out of judgments or awards against
the Issuer or any Consolidated Subsidiary with respect to which the Issuer
or such Consolidated Subsidiary is in good faith prosecuting an appeal or
proceedings for review or for which the time to make an appeal has not yet
expired; or final unappealable judgment liens which are satisfied within
15 days of the date of judgment; or liens incurred by the Issuer or any
Consolidated Subsidiary for the purpose of obtaining a stay or discharge
in the course of any litigation or other proceeding to which the Issuer or
such Consolidated Subsidiary is a party;
(k) liens for taxes or assessments or governmental charges or levies
not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate
proceedings; landlord's liens on property held under lease; and any other
liens
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or charges incidental to the conduct of the business of the Issuer or any
Consolidated Subsidiary or the ownership of the assets of any of them
which were not incurred in connection with the borrowing of money or the
obtaining of advances or credit and which do not, in the opinion of the
Issuer, materially impair the use of such assets in the operation of the
business of the Issuer or such Consolidated Subsidiary or the value of
such assets for the purposes of such business; or
(l) liens on any assets of a Financing Subsidiary.
Notwithstanding the restrictions set forth in the preceding
paragraph, the Issuer or any Consolidated Subsidiary will be permitted to create
or assume any Indebtedness which is secured by a lien without equally and
ratably securing the Securities; provided that at the time of such creation or
assumption, and immediately after giving effect thereto, Exempted Debt does not
exceed 20% of Consolidated Net Tangible Assets.
SECTION 3.10 Limitation on Sale and Lease-Back. The Issuer will not,
nor will it permit any Consolidated Subsidiary to, enter into any sale and
lease-back transaction with respect to any assets, other than any such
transaction involving a lease for a term of not more than three years, unless
either (a) the Issuer or such Consolidated Subsidiary would be entitled to incur
Indebtedness secured by a lien on the assets to be leased, in an amount at least
equal to the Attributable Debt with respect to such sale and lease-back
transaction, without equally and ratably securing the Securities, pursuant to
clauses (a) through (k) inclusive of Section 3.9, or (b) the proceeds of the
sale of the assets to be leased are at least equal to the fair value of such
assets (as determined by the Board of Directors of the Issuer) and the proceeds
are applied to the purchase or acquisition (or, in the case of property, the
construction) of assets or to the retirement (other than at maturity or pursuant
to a mandatory sinking fund or redemption provision) of Senior Funded
Indebtedness. This limitation, however, will not apply if at the time the Issuer
or any Consolidated Subsidiary enters into such sale and lease-back transaction,
and immediately after giving effect thereto, Exempted Debt does not exceed 20%
of Consolidated Net Tangible Assets.
SECTION 3.11 Limitations on Subsidiary
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Indebtedness. The Issuer will not permit any Restricted Subsidiary, directly or
indirectly, to create, incur, assume, guarantee, acquire, or become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
payment of (collectively, "incur"), any Indebtedness for money borrowed;
provided, however, that the foregoing limitations will not apply to the
incurrence of any of the following, each of which shall be given independent
effect:
(a) Indebtedness outstanding on the date of this Indenture;
(b) Indebtedness of a Restricted Subsidiary that represents
the assumption by such Restricted Subsidiary of Indebtedness of
another Subsidiary, and Indebtedness owed by any Restricted
Subsidiary to the Issuer or to another Subsidiary; provided that any
such Indebtedness shall be at all times held by a Person which is
either the Issuer or a Subsidiary; and provided, further, that upon
the transfer or other disposition of any such Indebtedness to a
Person other than the Issuer or another Subsidiary, the incurrence
of such Indebtedness shall be deemed to be an incurrence that is not
permitted by this clause (b);
(c) Indebtedness arising from (i) the endorsement of
negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; or (ii) the
honoring by a bank or other financial institution of a check, draft
or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course
of business; provided, however, that such overdraft is extinguished
within five Business days of incurrence;
(d) Indebtedness arising from guarantees of loans and advances
by third parties to employees and officers of a Restricted
Subsidiary in the ordinary course of business for bona fide business
purposes, provided that the aggregate amount of such guarantees by
all Restricted Subsidiaries does not exceed $1,000,000;
(e) Indebtedness incurred by a foreign Restricted Subsidiary
in the ordinary course of business;
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(f) Indebtedness of any corporation existing at the time such
corporation becomes a Restricted Subsidiary or is merged into or
consolidated with a Restricted Subsidiary or at the time of a
purchase, lease or other acquisition by a Restricted Subsidiary of
assets of such corporation as an entirety or substantially as an
entirety;
(g) Indebtedness of a Restricted Subsidiary arising from
agreements providing for indemnification, adjustment of purchase
price or similar obligations or from guarantees, letters of credit,
surety bonds or performance bonds securing any obligations of the
Issuer or any of its Subsidiaries incurred or assumed in connection
with the disposition of any business, property or Subsidiary, other
than guarantees or similar credit support by any Restricted
Subsidiary of Indebtedness incurred by any Person acquiring all or
any portion of such business, property or Subsidiary for the purpose
of financing such acquisition;
(h) Indebtedness of a Restricted Subsidiary in respect of
performance, surety and other similar bonds, bankers' acceptances
and letters of credit provided by such Subsidiary in the ordinary
course of business;
(i) Indebtedness secured by a lien permitted by Section 3.9 or
arising in respect of a sale and lease-back transaction permitted by
Section 3.10 or any Indebtedness incurred to finance all or any part
of the purchase price or cost of construction of improvements in
respect of property or assets acquired by a Person after the date of
the Indenture and incurred prior to, at the time of, or within 360
days after, the acquisition of any such property or assets or the
completion of any such construction or improvements;
(j) Indebtedness that is issued, assumed or guaranteed in
connection with, or with a view to, compliance by a Restricted
Subsidiary with the requirements of any program adopted by any
federal, state or local governmental authority and applicable to
such Restricted Subsidiary and providing financial or tax benefits
to such Restricted Subsidiary which are not available directly to
the Issuer;
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(k) Indebtedness arising from Rate Hedging Obligations
incurred to limit risks of currency or interest rate fluctuations to
which a Subsidiary is otherwise subject by virtue of the operations
of its business, and not for speculative purposes;
(l) Indebtedness incurred by any Financing Subsidiary; and
(m) Indebtedness incurred in connection with or given in
exchange for the renewal, extension, substitution, refunding,
defeasance, refinancing or replacement of any Indebtedness described
in clauses 9(a), (b), (f), (g)and (i) above ("Refinancing
Indebtedness"); provided that (i) the principal amount of such
Refinancing Indebtedness shall not exceed the principal amount of
the Indebtedness so renewed, extended, substituted, refunded,
defeased, refinanced or replaced (plus the premiums paid in
connection therewith (which shall not exceed the stated amount of
any premium or other payment required to be paid in connection with
such a refinancing pursuant to the terms of the Indebtedness being
renewed, extended, substituted, refunded, defeased, refinanced or
replaced) and the expenses incurred in connection therewith); (ii)
the Refinancing Indebtedness shall have a weighted average life to
maturity equal to or greater than the weighted average life to
maturity of the Indebtedness being renewed, extended, substituted,
refunded, defeased, refinanced or replaced; and (iii) the
Refinancing Indebtedness shall rank no more senior, and shall be at
least as subordinated, in right of payment as the Indebtedness being
renewed, extended, substituted, refunded, defeased, refinanced or
replaced.
Notwithstanding the foregoing restrictions, Restricted Subsidiaries
will be permitted to incur any Indebtedness for money borrowed that would
otherwise be subject to the foregoing restrictions in an aggregate principal
amount which, together with the aggregate principal amount of other such
Indebtedness for money borrowed that is incurred by Restricted Subsidiaries (not
including Indebtedness permitted pursuant to the foregoing paragraphs (a)
through (m)), does not, at the time such Indebtedness is incurred, exceed 20% of
Consolidated Net Tangible Assets.
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ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (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):
(a) default in the payment of any instalment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal, or
premium, if any, on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon redemption, by
declaration or otherwise; or
(c) default in the payment of any sinking fund instalment as and
when the same shall become due and payable by the terms of the Securities
of such series; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements of the Issuer in respect of the
Securities of such series (other than a covenant or warranty in respect of
the Securities of such series a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with) for a period
of 90 days after the date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder and demanding
that the Issuer remedy the same, has been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of all series affected
thereby; or
(e) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of
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the Issuer 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 or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and
such decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental
indenture or resolution of the Board of Directors under which such series
of Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (d) or (g) above (if
the Event of Default under clause (d) or (g) is with respect to less than all
series of Securities then Outstanding) occurs and is continuing, then, and in
each and every such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d) or
(g) (if the Event of Default under clause (d) or (g), as the case may be, is
with respect to all series of Securities then Outstanding) or (e) or (f) occurs
and is continuing, then and in each and every such case, unless the principal of
all the Securities shall have already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of all the
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Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities then outstanding and interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case the holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class (or of all the Securities, as the case may be, voting as a single
class), then outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any
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subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any instalment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise--then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether
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or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings
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relative to the Issuer or other obligor upon the Securities of any series,
or to the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and
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attorneys, shall be for the ratable benefit of the holders of the Securities in
respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and
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payable, to the payment of the whole amount then owing and unpaid upon all
the Securities of such series for principal and interest, with interest
upon the overdue principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or yield to maturity, without
preference or priority of principal over interest or yield to maturity, or
of interest or yield to maturity over principal, or of any instalment of
interest over any other instalment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of
such principal and accrued and unpaid interest or yield to maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.6 Limitations on Suits by Securityholders. No holder of
any Security of any series shall have
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any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as herein-before provided, and unless also the holders of not less than
25% in aggregate principal amount of the Securities of such series then
outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 4.7 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 4.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every
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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.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 4.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or responsible officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 5.1) the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
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SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in clause (d) or (g)
of Section 4.1 which relates to less than all series of Securities then
Outstanding, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.2. Prior to a declaration of acceleration of the maturity
of the Securities of any series as provided in Section 4.1, the Holders of
Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may on behalf of all Holders waive any past
default or Event of Default referred to in said clause (d) or (g) which relates
to all series of Securities then Outstanding, or described in clause (e) or (f)
of Section 4.1, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Security affected as provided in Section 7.2. In the case of any such waiver,
the Issuer, the Trustee and the Holders of the Securities of each series
affected shall be restored to their former positions and rights hereunder,
respectively.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to the Trustee which have occurred with
respect to such series, such notice to be transmitted within 90 days after the
occurrence thereof, unless such defaults shall have been cured before the giving
of such notice (the term "default" or "defaults" for the purposes of this
Section and Section 5.2(h) being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking
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or purchase 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, or a trust committee of directors
or trustees and/or responsible officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (g) of Section 4.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clauses (d) or (g) (if the suit
relates to all the Securities then Outstanding), (e) or (f) of Section 4.1, 10%
in aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which
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may have occurred with respect to such series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case an
Event of Default with respect to the Securities of a series has occurred (which
has not been cured or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Securities of any Series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
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(c) 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 pursuant to Section 4.9 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee
by a copy thereof certified by the secretary or an assistant secretary of
the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
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(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in
writing so to do by the holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then
outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor trustee, shall be
repaid by the Issuer upon demand;
(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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder; and
(h) except for the defaults set forth in Section 4.1(a), (b) and
(c), the Trustee will not have knowledge of a default unless notified
thereof.
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SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the provisions of
Section 9.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each predecessor
Trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this
Indenture
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or the trusts hereunder and the performance of its duties hereunder, including
the costs and expenses of defending itself against or investigating any claim of
liability in the premises, except to the extent such loss, liability or expense
is due to the negligence or bad faith of the Trustee or such predecessor
Trustee. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of 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, and the Securities are hereby subordinated
to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.1 and 5.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000, and which is
eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal, State or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
SECTION 5.9 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with
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respect to one or more or all series of Securities by giving written notice of
resignation to the Issuer and by mailing notice thereof by first class mail to
Holders of the applicable series of Securities at their last addresses as they
shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 4.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939 and shall
fail to resign after written request therefor by the Issuer or by any
Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or
a receiver or liquidator 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;
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then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities 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 removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.10.
SECTION 5.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 9.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an
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instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 5.6.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 under separate
indentures.
Upon acceptance of appointment by any successor trustee as provided
in this Section 5.10, the Issuer shall mail notice thereof by first-class mail
to the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.9. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
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corporation shall be eligible under the provisions of Section 5.8, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 5.1 and 5.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.1 and 5.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in
accordance
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with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of
Securities shall be proved by the Security register or by a certificate of the
registrar thereof. The Issuer may set a record date for purposes of determining
the identity of holders of Securities of any series entitled to vote or consent
to any action referred to in Section 6.1, which record date may be set at any
time or from time to time by notice to the Trustee, for any date or dates (in
the case of any adjournment or reconsideration) not more than 60 days nor less
than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, only holders of
Securities of such series of record on such record date shall be entitled to so
vote or give such consent or revoke such vote or consent.
SECTION 6.3 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in
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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 Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.1 and
5.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
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ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any
supplemental
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indenture as the Board of Directors may deem necessary or desirable and
which shall not adversely affect the interests of the Holders of the
Securities in any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3; and
(f) 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 5.10.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than 66 2/3 percent in aggregate principal amount of the Securities at the
time Outstanding of all series affected by such supplemental indenture (voting
as one class), the Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may, from time to time and at any time, 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 any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series; provided, that
no such supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof or reduce
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the amount of the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof pursuant to Section
4.1 or the amount thereof provable in bankruptcy pursuant to Section 4.2, or
impair or affect the right of any Securityholder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of repayment
at the option of the Securityholder without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an assistant
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.1, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee,
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the Issuer and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 5.1 and 5.2, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Seven complies with the applicable provisions
of this Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms. The
Issuer covenants that it will not merge or consolidate with any other
corporation or sell, lease or convey all or substantially all of its assets to
any Person, unless (i) either the Issuer shall be the continuing corporation, or
the successor corporation or the Person which acquires by sale, lease or
conveyance substantially all the assets of the Issuer (if other than the Issuer)
shall be a corporation organized under the laws of the United States of America
or any State thereof or the District of Columbia and shall expressly assume the
due and punctual payment of the principal of and interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Issuer, by supplemental indenture satisfactory to the
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Trustee, executed and delivered to the Trustee by such corporation, and (ii) the
Issuer or such successor corporation, as the case may be, shall not, immediately
after such merger or consolidation, or such sale, lease or conveyance, be in
default in the performance of any such covenant or condition.
SECTION 8.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 5.1 and 5.2, may receive an Opinion of Counsel,
prepared in accordance with Section 10.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any
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such assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series outstanding hereunder (other than
Securities of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9) as and when the same
shall have become due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all securities of any series theretofore authenticated
(other than any Securities of such series which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section 2.9)
or (c) (i) all the securities of such series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Issuer in accordance with Section 9.4) sufficient to pay at maturity or upon
redemption all Securities of such series (other than any Securities of such
series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) not theretofore delivered to the
Trustee for cancellation, including principal and interest due or to become due
on or prior to such date of maturity as the case may be, and if, in any such
case, the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer with respect to Securities of such series, then this
Indenture shall cease to be of further effect with respect to Securities of such
series (except as to (i) rights of registration of transfer and exchange of
securities of such series, and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of holders to receive payments of principal thereof and
interest thereon, and remaining rights of the holders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of
the Trustee
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hereunder and (v) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them), and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities to receive amounts in
respect of principal of and interest on the Securities held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. The Issuer agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
SECTION 9.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.4, all moneys deposited with the Trustee
pursuant to Section 9.1 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent), to the Holders of the particular Securities of such series
for the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any Security
of any series and not applied but remaining unclaimed for three years after the
date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Issuer and unless
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otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series
or such paying agent, and the Holder of the Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Issuer for any
payment which such Holder may be entitled to collect, and all liability of the
Trustee or any paying agent with respect to such moneys shall thereupon cease.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the holders thereof and as
part of the consideration for the issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 10.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
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SECTION 10.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to Cardinal Health, Inc., 5555 Glendon Court, Dublin, Ohio
43016, Attention: Chairman. Any notice, direction, request or demand by the
Issuer or any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made at the Corporate
Trust Office.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. 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. 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, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such
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application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer of officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
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Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal 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 date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 10.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision shall control.
SECTION 10.8 Ohio Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of Ohio, and for
all purposes shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of law.
SECTION 10.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
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SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part only
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the
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outstanding Securities of a series are to be redeemed, the Issuer will deliver
to the Trustee at least 70 days prior to the date fixed for redemption an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series 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 of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.5 and 9.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.4 hereof.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. 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". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.7, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not
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previously so credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so delivered or
credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 10.5)
signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series, (b) stating that
none of the Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
Issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee with such
written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such written statement and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
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exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request then it shall be carried over until a sum in excess
of $50,000 is available. The Trustee shall select, in the manner provided in
Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are (a) owned by the Issuer or an
entity known by the Trustee to be directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, as
shown by the Security register, and not known to the Trustee to have been
pledged or hypothecated by the Issuer or any such entity or (b) identified in an
Officers' Certificate at least 60 days prior to the sinking fund payment date as
being beneficially owned by, and not pledged or hypothecated by, the Issuer or
an entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 11.2 (and with the
effect provided in Section 11.3) for the redemption of Securities of such series
in part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest
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accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article Four and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 4.9 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
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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 , 1997.
CARDINAL HEALTH, INC.
By________________________
Attest:
By________________________
BANK ONE, COLUMBUS, NA
By________________________
[CORPORATE SEAL]
Attest:
By________________________
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<PAGE> 77
STATE OF OHIO )
) ss.:
COUNTY OF FRANKLIN )
On this _____ day of __________ before me personally came
_______________ to me personally known, who, being by me duly sworn, did depose
and say that he resides at ____________________ that he is a __________ of
CARDINAL HEALTH, INC., one of the corporations described in and which executed
the above instrument; and that he signed his name thereto by authority of the
Board of Directors of said corporation.
[NOTARIAL SEAL]
-------------------------
Notary Public
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STATE OF INDIANA )
) ss.:
COUNTY OF MARION )
On this _____ day of __________ before me personally came
_______________ to me personally known, who, being by me duly sworn, did depose
and say that he resides at ____________________ that he is a __________ of BANK
ONE, COLUMBUS, NA, one of the corporations described in and which executed the
above instrument; that he knows the corporate 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.
[NOTARIAL SEAL]
-------------------------
Notary Public
71
<PAGE> 1
EXHIBIT 4.2
-----------
[FORM OF FACE OF DEBT SECURITY]
No. $____________
CARDINAL HEALTH, INC.
% [Note]* Due
CARDINAL HEALTH, INC., an Ohio corporation (the "Issuer"), for value
received, hereby promises to pay to _______________________ or registered
assigns, at the office or agency of the Issuer in Indianapolis, Indiana, the
principal sum of _______________ Dollars on __________________, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semiannually on ______________ and ________________ of each year, commencing
______________________, on said principal sum at said office or agency, in like
coin or currency, at the rate per annum specified in the title of this Note,
from the _________________ or the ____________________, as the case may be,
next preceding the date of this Note to which interest has been paid, unless
the date hereof is a date to which interest has been paid, in which case from
the date of this Note, or unless no interest has been paid on these Notes, in
which case from ___________________, until payment of said principal sum has
been made or duly provided for; PROVIDED, that payment of interest may be made
at the option of the Issuer by check mailed to the address of the person
entitled thereto as such address shall appear on the Security register.
Notwithstanding the foregoing, if the date hereof is after the ____ day of
_________________ or _________________, as the case may be, and before the
following ___________________ or ________________, this Note shall bear
interest from such ________________ or __________________; PROVIDED, that if
the Issuer shall default in the payment of interest due on such _______________
or _________________, then this Note shall bear interest from the next
preceding ___________________ or _______________, to which interest has been
paid or, if no interest has been paid on these Notes, from __________________.
The interest so payable on any _________________ or ____________ will, subject
to certain exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this Note is registered at the
close of business on the __________________ or _______________, as the case may
be, next preceding such ________________ or ____________________.
__________________________________
* Insert title of Debt Security.
<PAGE> 2
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee
under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, CARDINAL HEALTH, INC. has caused this instrument to be
signed by facsimile by its duly authorized officers and has caused a facsimile
of its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
CARDINAL HEALTH, INC.
By_________________________________
By_________________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
BANK ONE, COLUMBUS, NA,
as Trustee
By_________________________________
Authorized Officer
[FORM OF REVERSE OF NOTE]
CARDINAL HEALTH, INC.
% Note Due
This Note is one of a duly authorized issue of debentures, notes, bonds or
other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of ______ , 1997 (herein called
-2-
<PAGE> 3
the "Indenture"), duly executed and delivered by the Issuer to BANK ONE,
COLUMBUS, NA, as Trustee (herein called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the Holders of the
Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any), and may otherwise vary
as in the Indenture provided. This Note is one of a series designated as the
______% Notes Due ______________ of the Issuer, limited in aggregate principal
amount to $_____________.
In case an Event of Default with respect to the ______% Notes Due
_______________, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to
the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than 66 2/3% in aggregate principal
amount of the Securities at the time Outstanding (as defined in the Indenture)
of all series to be affected (voting as one class), evidenced as in the
Indenture provided, to execute supplemental indentures adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each such series; PROVIDED, HOWEVER, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or reduce or impair or
affect the rights of any Holder to institute suit for the payment thereof or
any right of repayment at the option of the Holder, without the consent of the
Holder of each Security so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each Security
affected. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, prior to
any declaration accelerating the maturity of such Securities, the Holders of a
majority in aggregate principal amount Outstanding of the Securities of such
series (or, in the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the Holders of all the
Securities of such series (or all or certain series of the Securities, as the
case may be) waive any such past default or Event of Default and its
consequences. The preceding sentence shall not, however,
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<PAGE> 4
apply to a default in the payment of the principal of or premium, if any, or
interest on any of the Securities. Any such consent or waiver by the Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Note
and any Notes which may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this Note or
such other Notes.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and any premium and interest on this
Note in the manner, at the respective times, at the rate and in the coin or
currency herein prescribed.
The Notes are issuable in registered form without coupons in denominations
of $1,000 and any multiple of $1,000 at the office or agency of the Issuer
referred to on the face hereof and in the manner and subject to the limitations
provided in the Indenture, but without the payment of any service charge, Notes
may be exchanged for a like aggregate principal amount of Notes of other
authorized denominations.
[The Notes may be redeemed at the option of the Issuer as a whole, or from
time to time in part, on any date after ________________ and prior to maturity,
upon mailing a notice of such redemption not less than 30 nor more than 60 days
prior to the date fixed for redemption to the Holders of Notes at their last
registered addresses, all as further provided in the Indenture, at the
following redemption prices (expressed in percentages of the principal amount)
together in each case with accrued interest to the date fixed for redemption:
If redeemed during the twelve-month period beginning _______________________,
Year Percentage Year Percentage
---- ---------- ---- ----------
[PROVIDED, HOWEVER, that no such optional redemption may be effected prior to
_______________ directly or indirectly from or in anticipation of moneys
borrowed by or for the account of the Issuer at an interest cost (calculated in
accordance with generally accepted financial practice) of less than _____% per
annum.]
[The Notes are also subject to redemption, through the operations of the
sinking fund as herein provided on ____________ and on each ____________
thereafter to and including ____________ on notice as set forth above and at
100% of the principal amount
-4-
<PAGE> 5
thereof (the sinking fund redemption price), together with accrued interest to
the date fixed for redemption.
As and for a sinking fund for the retirement of the Notes and so long as any
of the Notes remain outstanding and unpaid, the Issuer will pay to the Trustee
in cash (subject to the right to deliver certain Notes in credit therefor as in
the Indenture provided), on or before _______________ and on or before
______________ in each year thereafter to and including an amount sufficient to
redeem $______________ principal amount of the Notes (or such lesser amount
equal to the principal amount then Outstanding) at the sinking fund redemption
price.
At its option the Issuer may pay into the sinking fund for the retirement of
Notes, in cash except as provided in the Indenture, on or before _____________
and on or before __________ in each year thereafter to and including
_____________, an amount sufficient to redeem an additional principal amount of
Notes up to but not to exceed $____________ at the sinking fund redemption
price. To the extent that the right to such optional sinking fund payment is
not exercised in any year, it shall not be cumulative or carried forward to any
subsequent year.]
Upon due presentment for registration of transfer of this Note at the
above-mentioned office or agency of the Issuer, a new Note or Notes of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon) for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and neither the Issuer nor the Trustee nor any authorized agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in any Note,
or because of the creation of any indebtedness represented thereby, shall be
had against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
-5-
<PAGE> 6
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
-6-
<PAGE> 1
[BAKER & HOSTETLER LLP LETTERHEAD]
EXHIBIT 5
April 2, 1997
Cardinal Health, Inc.
5555 Glendon Court
Dublin, Ohio 43016
Re: Registration Statement on Form S-3 with respect to $350,000,000
aggregate principal amount of Debt Securities of
Cardinal Health, Inc.
Dear Sirs:
We have acted as counsel to Cardinal Health, Inc., an Ohio
corporation (the "Company"), in connection with its Registration Statement on
Form S-3 (the "Registration Statement") being filed under the Securities Act of
1933, as amended (the "Act") relating to the proposed public offering of up to
$350,000,000 aggregate principal amount of the Company's Debt Securities (the
"Securities") to be issued under an Indenture to be entered into between the
Company and Bank One, Columbus, NA, as trustee (the "Indenture").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents as we have deemed necessary
for the purposes of this opinion including, without limitation, the forms of
Indenture and Debt Security filed as exhibits to the Registration Statement.
Based upon the foregoing, we are of the opinion that:
When (a) the Indenture shall have been duly executed in
substantially the form filed as an Exhibit to the Registration Statement, (b)
the Securities shall have been duly executed, authenticated and delivered in
accordance with the terms of the Indenture, (c) the Registration Statement
shall have become effective under the Act, (d) the Indenture shall have been
qualified under the Trust Indenture Act of 1939, as amended and (e) the
Securities shall have been issued and sold as described in the Registration
Statement, the Securities will be duly authorized and issued, and valid and
binding obligations of the Company.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement and to the reference to our firm under "Legal
Matters" in the prospectus included in the Registration Statement.
Very truly yours,
/s/ Baker & Hostetler LLP
<PAGE> 1
EXHIBIT 12
CARDINAL HEALTH, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE FIVE YEARS AND INTERIM PERIOD ENDED
JUNE 30, 1996
<TABLE>
<CAPTION>
Six Months
Ended
March 31, March 31, June 30, June 30, June 30, December 31,
1992 1993 1994 1995 1996 1996
------------- ------------- ------------- ------------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Earnings from continuing operations
before income taxes 66,493,000 106,243,000 146,908,000 233,635,000 202,065,000 134,469,000
Add-Fixed Charges:
Interest Expense 26,154,000 26,910,000 18,316,000 19,403,000 23,868,000 13,933,000
Interest Capitalized 163,000 0 0 0 693,000 328,000
Amortization of Debt Offering Costs 2,272,000 267,000 220,000 302,000 1,277,000 281,000
Interest Portion of Rent Expense 3,288,000 3,805,000 4,173,000 4,830,000 6,800,000 3,263,000
Preferred Stock Dividend Requirement 3,212,000 3,183,000 2,186,000 0 0 0
------------- ------------- ------------- ------------- ------------- ------------
Total Fixed Charges 35,089,000 34,165,000 24,895,000 24,535,000 32,638,000 17,805,000
Less: Interest Capitalized (163,000) 0 0 0 (693,000) (328,000)
Preferred Stock Dividend Requirement (3,212,000) (3,183,000) (2,186,000) 0 0 0
------------- ------------- ------------- ------------- ------------- ------------
Earnings as Adjusted 98,207,000 137,225,000 169,617,000 258,170,000 234,010,000 151,946,000
============= ============= ============= ============= ============= ============
Ratio of Earnings to Fixed Charges 2.8 4.0 6.8 10.5 7.2 8.5
</TABLE>
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cardinal Health, Inc. on Form S-3 of our report dated August 13, 1996,
appearing in the Annual Report on Form 10-K of Cardinal Health, Inc. for the
year ended June 30, 1996 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Columbus, Ohio
March 31, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Cardinal Health,
Inc. for the registration of debt securities and to the incorporation by
reference therein of our report dated August 2, 1996, with respect to the
consolidated financial statements of Pyxis Corporation, included in the Annual
Report (Form 10-K) of Cardinal Health, Inc. for the year ended June 30, 1996,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
San Diego, California
March 28, 1997
<PAGE> 1
Exhibit 25
Registration No.
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
BANK ONE, COLUMBUS, N.A.
Not Applicable 31-4148768
(State of Incorporation (I.R.S. Employer
if not a national bank) Identification No.)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of trustee's principal (Zip Code) executive offices)
Ted Kravits
c/o Bank One Trust Company, NA
100 East Broad Street
Columbus, Ohio 43271-0181
(614) 248-2566
(Name, address and telephone number of agent for service)
CARDINAL HEALTH, INC.
(Exact name of obligor as specified in its charter)
Ohio 31-0958666
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
5555 Glendon Court 43016
Dublin, Ohio (Zip Code)
(Address of principal executive
office)
UNTITLED
(Title of the Indenture securities)
<PAGE> 2
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.
Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Cleveland, Cleveland, Ohio
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
16. LIST OF EXHIBITS
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY AND QUALIFICATION. (EXHIBITS IDENTIFIED IN PARENTHESES,
ON FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS
EXHIBITS HERETO.)
Exhibit 1 - A copy of the Articles of Association of the trustee as now in
effect.
Exhibit 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 Form S-3 relating
to Wheeling-Pittsburgh Corporation 9 3/8% Senior Notes due 2003, Securities and
Exchange Commission File No. 33-50709.
Exhibit 3 - A copy of the Authorization of the trustee to exercise corporate
trust powers, see Exhibit 3 to Form T-1, filed in connection with Form S-3
relating to Wheeling-Pittsburgh Corporation 9 3/8% Senior Notes due 2003,
Securities and Exchange Commission File No. 33-50709.
Exhibit 4 - A copy of the Bylaws of the trustee as now in effect.
<PAGE> 3
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, as amended.
Exhibit 7 - Report of Condition of the trustee as of the close of business on
December 31, 1996, published pursuant to the requirements of the Comptroller of
the Company.
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
Items 3 through 15 are not answered pursuant to General Instruction B which
requires responses to Item 1, 2 and 16 only, if the obligor is not in default.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, Bank One, Columbus, NA, a national banking association
organized under the National Banking Act, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in Columbus, Ohio, on March 28, 1997.
Bank One, Columbus, NA
By: /s/ Ted Kravits
-------------------------------
Ted Kravits
Authorized Signer
<PAGE> 4
Exhibit 1
BANK ONE, COLUMBUS, NATIONAL ASSOCIATION
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 following Articles of
Association are entered into:
FIRST. The title of this Association shall be BANK ONE, COLUMBUS,
NATIONAL ASSOCIATION.
SECOND. The main office of the Association shall be in Columbus,
County of Franklin, State of Ohio. 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 Directors, the exact number of
Directors within such minimum and maximum limits to be fixed and determined
from time-to-time by resolution of the shareholders at any annual or special
meeting thereof, provided, however, that the Board of Directors, by resolution
of a majority thereof, shall be authorized to increase the number of its
members by not more than two between regular meetings of the shareholders.
Each Director, during the full term of his directorship, shall own, as
qualifying shares, the minimum number of shares of either this Association or
of its parent bank holding company in accordance with the provisions of
applicable law. Unless otherwise provided by the laws of the United States,
any vacancy in the Board of Directors for any reason, including an increase in
the number thereof, may be filled by action of the Board of Directors.
- 4 -
<PAGE> 5
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 of this Association or such other
place as the Board of Directors may designate, on the day of each year
specified therefor in the By-Laws, but if no election is held on that day, it
may be held on any subsequent business day according to the provisions of law;
and all elections shall be held according to such lawful regulations as may be
prescribed by the Board of Directors.
FIFTH. The authorized amount of capital stock of this Association
shall be 2,073,750 shares of common stock of the par value of Ten Dollars ($10)
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 the preemptive or preferential right of subscription to
any share of any class of stock of this Association, whether now or hereafter
authorized or to any obligations convertible into stock of this 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.
This Association, at any time and from time-to-time, may
authorize and issue debt obligations, whether or not subordinated, without the
approval of the shareholders.
SIXTH. The Board of Directors shall appoint one of its members
President of the Association, who shall be Chairman of the Board, 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
Secretary and such other officers and employees as may be required to transact
the business of this Association.
- 5 -
<PAGE> 6
The Board of Directors shall have the power to define the
duties of the officers and employees of this 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
this Association shall be made; to manage and administer the business and
affairs of this Association; to make all By-Laws 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 the City of
Columbus, Ohio, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency; and shall have the power to
establish or change the location of any branch or branches of this 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 any three or
more shareholders owning, in the aggregate, not less than 10 percent 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, place and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least ten days prior to the date of such meeting to each shareholder of record
at his address as shown upon the books of this Association.
- 6 -
<PAGE> 7
TENTH. Every person who is or was a Director, officer or employee of
the Association or of any other corporation which he served as a Director,
officer or employee at the request of the Association as part of his regularly
assigned duties may be indemnified by the Association in accordance with the
provisions of this paragraph against all liability (including, without
limitation, judgments, fines, penalties and settlements) and all reasonable
expenses (including, without limitation, attorneys' fees and investigative
expenses) that may be incurred or paid by him in connection with any claim,
action, suit or proceeding, whether civil, criminal or administrative (all
referred to hereafter in this paragraphs as "Claims") or in connection with any
appeal relating thereto in which he may become involved as a party or otherwise
or with which he may be threatened by reason of his being or having been a
Director, officer or employee of the Association or such other corporation, or
by reason of any action taken or omitted by him in his capacity as such
Director, officer or employee, whether or not he continues to be such at the
time such liability or expenses are incurred, provided that nothing contained
in this paragraph shall be construed to permit indemnification of any such
person who is adjudged guilty of, or liable for, willful misconduct, gross
neglect of duty or criminal acts, unless, at the time such indemnification is
sought, such indemnification in such instance is permissible under applicable
law and regulations, including published rulings of the Comptroller of the
Currency or other appropriate supervisory or regulatory authority, and provided
further that there shall be no indemnification of directors, officers, or
employees against expenses, penalties, or other payments incurred in an
administrative proceeding or action instituted by an appropriate 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. Every person who may be
indemnified under the provisions of this paragraph and who has been wholly
successful on the merits with respect to any Claim shall be entitled to
indemnification as of right. Except as provided in the preceding sentence, any
indemnification under this paragraph shall be at the sole discretion of the
Board of Directors and shall be made only if the Board of Directors or the
Executive Committee acting by a quorum consisting of
- 7 -
<PAGE> 8
Directors who are not parties to such Claim shall find or if independent legal
counsel (who may be the regular counsel of the Association) selected by the
Board of Directors or Executive Committee whether or not a disinterested quorum
exists shall render their opinion that in view of all of the circumstances then
surrounding the Claim, such indemnification is equitable and in the best
interests of the Association. Among the circumstances to be taken into
consideration in arriving at such a finding or opinion is the existence or
non-existence of a contract of insurance or indemnity under which the
Association would be wholly or partially reimbursed for such indemnification,
but the existence or non-existence of such insurance is not the sole
circumstance to be considered nor shall it be wholly determinative of whether
such indemnification shall be made. In addition to such finding or opinion, no
indemnification under this paragraph shall be made unless the Board of
Directors or the Executive Committee acting by a quorum consisting of Directors
who are not parties to such Claim shall find or if independent legal counsel
(who may be the regular counsel of the Association) selected by the Board of
Directors or Executive Committee whether or not a disinterested quorum exists
shall render their opinion that the Director, officer or employee acted in good
faith in what he reasonably believed to be the best interests of the
Association or such other corporation and further in the case of any criminal
action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolocontendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this paragraph. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to
the Association by or on behalf of the recipient to repay such amount unless it
is ultimately determined that he is entitled to indemnification under this
paragraph. The rights of indemnification provided in this paragraph shall be
in addition to any rights to which any Director, officer or employee may
otherwise be entitled by contract or as a matter of law.
- 8 -
<PAGE> 9
Every person who shall act as a Director, officer or employee of this
Association shall be conclusively presumed to be doing so in reliance upon the
right of indemnification provided for in this paragraph.
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.
- 9 -
<PAGE> 10
Exhibit 4
BY-LAWS
OF
BANK ONE, COLUMBUS, NATIONAL ASSOCIATION
ARTICLE I
MEETING OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the Shareholders
of the Bank for the election of Directors and for the transaction of such
business as may properly come before the meeting shall be held at its main
banking house, or other convenient place duly authorized by the Board of
Directors, on the third Monday of January of each year, or on the next
succeeding banking day, if the day fixed falls on a legal holiday. If from any
cause, an election of directors is not made on the day fixed for the regular
meeting of shareholders or, in the event of a legal holiday, on the next
succeeding banking day, the Board of Directors shall order the 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. Notice of such annual meeting shall be given
by or under the direction of the Secretary or such other officer as may be
designated by the Chief Executive Officer by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as
shown upon the books of the Bank mailed not less than ten days prior to the
date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of this
Bank may be called at any time by the Board of Directors or by any three or
more shareholders owning, in the aggregate, not less than ten percent of the
stock of this Bank. The notice of any special meeting of the shareholders
called by the Board of Directors, stating the time, place and purpose of the
meeting, shall be given by or under the direction of the Secretary, or such
other officer as is designated by the Chief Executive Officer, by first-class
mail, postage prepaid, to all shareholders of
- 10 -
<PAGE> 11
record of the Bank at their respective addresses as shown upon the books of the
Bank, mailed not less than ten days prior to the date fixed for such meeting.
Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF SHAREHOLDERS' MEETING. The Board of Directors may
designate a person to be the Secretary of the meetings of shareholders. In the
absence of a presiding officer, as designated in these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a Secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as Secretary
of the meeting.
The Secretary of the meetings of shareholders shall cause the returns
made by the judges and election and other proceedings to be recorded in the
minute book of the Bank. The presiding officer shall notify the
directors-elect of their election and to meet forthwith for the organization of
the new board.
The minutes of the meeting shall be signed by the presiding officer
and the Secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many
as three shareholders to be judges of the election, who shall hold and conduct
the same, and who shall, after the election has been held, notify, in writing
over their signatures, the secretary of the shareholders' meeting of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election at
the request of the chairman of the
- 11 -
<PAGE> 12
meeting, shall act as tellers of any other vote by ballot taken at such
meeting, and shall notify, in writing over their signatures, the secretary of
the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall
have the right to vote the number of shares of record in his name for as many
persons as there are Directors to be elected, or to cumulate such shares as
provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in his name. Shareholders may vote by proxy duly authorized in
writing. All proxies used at the annual meeting shall be secured for that
meeting only, or any adjournment thereof, and shall be dated, and if not dated
by the shareholder, shall be dated as of the date of receipt thereof. No
officer or employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
- 12 -
<PAGE> 13
ARTICLE II
DIRECTORS
SECTION 2.01. MANAGEMENT OF THE BANK. The business of the Bank shall be
managed by the Board of Directors. Each director of the Bank shall be the
beneficial owner of a substantial number of shares of BANC ONE CORPORATION and
shall be employed either in the position of Chief Executive Officer or active
leadership within his or her business, professional or community interest which
shall be located within the geographic area in which the Bank operates, or as
an executive officer of the Bank. A director shall not be eligible for
nomination and re-election as a director of the Bank if such person's executive
or leadership position within his or her business, professional or community
interests which qualifies such person as a director of Bank terminates. The
age of 70 is the mandatory retirement age as a director of the Bank. When a
person's eligibility as director of the Bank terminates, whether because of
change in share ownership, position, residency or age, within 30 days after
such termination, such person shall submit his resignation as a director to be
effective at the pleasure of the Board provided, however, that in no event
shall such person be nominated or elected as a director. Provided, however,
following a person's retirement or resignation as a director because of the age
limitations herein set forth with respect to election or re-election as a
director, such person may, in special or unusual circumstances, and at the
discretion of the Board, be elected by the directors as a Director Emeritus of
the Bank for a limited period of time. A Director Emeritus shall have the
right to participate in board meetings but shall be without the power to vote
and shall be subject to re-election by the Board at its organizational meeting
following the Bank's annual meeting of shareholders.
SECTION 2.02. QUALIFICATIONS. Each director shall have the qualification
prescribed by law. No person elected a director may exercise any of the powers
of his office until he has taken the oath of such office.
- 13 -
<PAGE> 14
SECTION 2.03. TERM OF OFFICE/VACANCIES. A director shall hold office until
the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to his prior
death, resignation, or removal from office. Whenever any vacancy shall occur
among the directors, the remaining directors shall constitute the directors of
the Bank until such vacancy is filled by the remaining directors, and any
director so appointed shall hold office for the unexpired term of his or her
successor. Notwithstanding the foregoing, each director shall hold office and
serve at the pleasure of the Board.
SECTION 2.04. ORGANIZATION MEETING. The directors elected by the share-
holders shall meet for organization of the new board at the time fixed by the
presiding officer of the annual meeting. If at the time fixed for such meeting
there is no quorum present, the Directors in attendance may adjourn from time
to time until a quorum is obtained. A majority of the number of Directors
elected by the shareholders shall constitute a quorum for the transaction of
business.
SECTION 2.05. REGULAR MEETINGS. The regular meetings of the Board of
Directors shall be held on the third Monday of each calendar month excluding
March and July, which meeting will be held at 4:00 p.m. When any regular
meeting of the Board falls on a holiday, the meeting shall be held on such
other day as the Board may previously designate or should the Board fail to so
designate, on such day as the Chairman of the Board of President may fix.
Whenever a quorum is not present, the directors in attendance shall adjourn the
meeting to a time not later than the date fixed by the Bylaws for the next
succeeding regular meeting of the Board.
SECTION 2.06. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board or President, or at the
request of two or more Directors. Any special meeting may be held at such
place in Franklin County, Ohio, and at such time as may be fixed in the call.
Written or oral notice shall be given to each Director not later than the day
next preceding the day on which special meeting is to be held, which notice may
be waived in writing.
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The presence of a Director at any meeting of the Board shall be deemed a waiver
of notice thereof by him. Whenever a quorum is not present the Directors in
attendance shall adjourn the special meeting from day to day until a quorum is
obtained.
SECTION 2.07. QUORUM. A majority of the Directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank
may be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.08. COMPENSATION. Each member of the Board of Directors shall
receive such fees for, and transportation expenses incident to, attendance at
Board and Board Committee Meetings and such fees for service as a Director
irrespective of meeting attendance as from time to time are fixed by resolution
of the Board; provided, however, that payment hereunder shall not be made to a
Director for meetings attended and/or Board service which are not for the
Bank's sole benefit and which are concurrent and duplicative with meetings
attended or board service for an affiliate of the Bank for which the Director
receives payment; and provided further, that payment hereunder shall not be
made in the case of any Director in the regular employment of the Bank or of
one of its affiliates.
SECTION 2.09. EXECUTIVE COMMITTEE. There shall be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all powers of the Board that may
lawfully be delegated. The Executive Committee shall also exercise the powers
of the Board of Directors in accordance with the Provisions of the "Employees
Retirement Plan" and the "Agreement and Declaration of Trust" as the same now
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exist or may be amended hereafter. The Executive Committee shall consist of
not fewer than four board members, including the Chairman of the Board and
President of the Bank, one of whom, as hereinafter required by these By-laws,
shall be the Chief Executive Officer. The other members of the Committee shall
be appointed by the Chairman of the Board or by the President, with the
approval of the Board and shall continue as members of the Executive Committee
until their successors are appointed, provided, however, that any member of the
Executive Committee may be removed by the Board upon a majority vote thereof at
any regular or special meeting of the Board. The Chairman or President shall
fill any vacancy in the Committee by the appointment of another Director,
subject to the approval of the Board of Directors. The regular meetings of the
Executive Committee shall be held on a regular basis as scheduled by the Board
of Directors. Special meetings of the Executive Committee shall be held at the
call of the Chairman or President or any two members thereof at such time or
times as may be designated. In the event of the absence of any member or
members of the Committee, the presiding member may appoint a member or members
of the Board to fill the place or places of such absent member or members to
serve during such absence. Not fewer than three members of the Committee must
be present at any meeting of the Executive Committee to constitute a quorum,
provided, however that with regard to any matters on which the Executive
Committee shall vote, a majority of the Committee members present at the
meeting at which a vote is to be taken shall not be officers of the Bank and,
provided further, that if, at any meeting at which the Chairman of the Board
and President are both present, Committee members who are not officers are not
in the majority, then the Chairman of the Board or President, which ever of
such officers is not also the Chief Executive Officer, shall not be eligible to
vote at such meeting and shall not be recognized for purposes of determining if
a quorum is present at such meeting. When neither the Chairman of the Board
nor President are present, the Committee shall appoint a presiding officer.
The Executive Committee shall keep a record of its proceedings and report its
proceedings and the action taken by it to the Board of Directors.
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SECTION 2.10 COMMUNITY REINVESTMENT ACT AND COMPLIANCE POLICY COMMITTEE.
There shall be a standing committee of the Board of Directors known as the
Community Reinvestment Act and Compliance Policy Committee the duties of which
shall be, at least once in each calendar year, to review, develop and recommend
policies and programs related to the Bank's Community Reinvestment Act
Compliance and regulatory compliance with all existing statutes, rules and
regulations affecting the Bank under state and federal law. Such Committee
shall provide and promptly make a full report of such review of current Bank
policies with regard to Community Reinvestment Act and regulatory compliance in
writing to the Board, with recommendations, if any, which may be necessary to
correct any unsatisfactory conditions. Such Committee may, in its discretion,
in fulfilling its duties, utilize the Community Reinvestment Act officers of
the Bank, Banc One Ohio Corporation and Banc One Corporation and may engage
outside Community Reinvestment Act experts, as approved by the Board, to
review, develop and recommend policies and programs as herein required. The
Community Reinvestment Act and regulatory compliance policies and procedures
established and the recommendations made shall be consistent with, and shall
supplement, the Community Reinvestment Act and regulatory compliance programs,
policies and procedures of Banc One Corporation and Banc One Ohio Corporation.
The Community Reinvestment Act and Compliance Policy Committee shall consist of
not fewer than four board members, one of whom shall be the Chief Executive
Officer and a majority of whom are not officers of the Bank. Not fewer than
three members of the Committee, a majority of whom are not officers of the
Bank, must be present to constitute a quorum. The Chairman of the Board or
President of the Bank, whichever is not the Chief Executive Officer, shall be
an ex officio member of the Community Reinvestment Act and Compliance Policy
Committee. The Community Reinvestment Act and Compliance Policy Committee,
whose chairman shall be appointed by the Board, shall keep a record of its
proceedings and report its proceedings and the action taken by it to the Board
of Directors.
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SECTION 2.11. TRUST COMMITTEES. There shall be two standing Committees known
as the Trust Management Committee and the Trust Examination Committee appointed
as hereinafter provided.
SECTION 2.12. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
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ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The officers of the Bank shall include a President, Secretary
and Security Officer and may include a Chairman of the Board,
one or more Vice Chairmen, one or more Vice Presidents (which
may include one or more Executive Vice Presidents and/or
Senior Vice Presidents) and one or more Assistant Secretaries,
all of whom shall be elected by the Board. All other officers
may be elected by the Board or appointed in writing by the
Chief Executive Officer. The salaries of all officers elected
by the Board shall be fixed by the Board. The Board from
time-to-time shall designate the President or Chairman of the
Board to serve as the Bank's Chief Executive Officer.
(b) The Chairman of the Board, if any, and the President shall be
elected by the Board from their own number. The President and
Chairman of the Board shall be re-elected by the Board
annually at the organizational meeting of the Board of
Directors following the Annual Meeting of Shareholders. Such
officers as the Board shall elect from their own number shall
hold office from the date of their election as officers until
the organization meeting of the Board of Directors following
the next Annual Meeting of Shareholders, provided, however,
that such officers may be relieved of their duties at any time
by action of the Board in which event all the powers incident
to their office shall immediately terminate.
(c) Except as provided in the case of the elected officers who are
members of the Board, all officers, whether elected or
appointed, shall hold office at the pleasure of the Board.
Except as otherwise limited by law or these By-laws, the Board
assigns to Chief Executive Officer and/or his
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designees the authority to appoint and dismiss any elected or
appointed officer or other member of the Bank's management
staff and other employees of the Bank, as the person in charge
of and responsible for any branch office, department, section,
operation, function, assignment or duty in the Bank.
(d) The management staff of the Bank shall include officers
elected by the Board, officers appointed by the Chief
Executive Officer, and such other persons in the employment of
the Bank who, pursuant to written appointment and
authorization by a duly authorized officer of the Bank,
perform management functions and have management
responsibilities. Any two or more offices may be held by the
same person except that no person shall hold the office of
Chairman of the Board and/or President and at the same time
also hold the office of Secretary.
(e) The Chief Executive Officer of the Bank and any other officer
of the Bank, to the extent that such officer is authorized in
writing by the Chief Executive Officer, may appoint persons
other than officers who are in the employment of the Bank to
serve in management positions and in connection therewith, the
appointing officer may assign such title, salary,
responsibilities and functions as are deemed appropriate by
him, provided, however, that nothing contained herein shall be
construed as placing any limitation on the authority of the
Chief Executive Officer as provided in this and other sections
of these By-Laws.
SECTION 3.02. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the
Bank shall have general and active management of the business of the Bank and
shall see that all orders and resolutions of the Board of Directors are carried
into effect. Except as otherwise prescribed or limited by these By-Laws, the
Chief Executive Officer shall have full right, authority and power to control
all personnel, including elected and appointed officers, of the Bank, to employ
or direct the
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<PAGE> 21
employment of such personnel and officers as he may deem necessary, including
the fixing of salaries and the dismissal of them at pleasure, and to define and
prescribe the duties and responsibility of all Officers of the Bank, subject to
such further limitations and directions as he may from time-to-time deem
proper. The Chief Executive Officer shall perform all duties incident to his
office and such other and further duties, as may, from time-to-time, be
required of him by the Board of Directors or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to the Chief Executive Officer in conducting the business of the Bank.
The Chief Executive Officer or, in his absence, the Chairman of the Board or
President of the Bank, as designated by the Chief Executive Officer, shall
preside at all meetings of shareholders and meetings of the Board. In the
absence of the Chief Executive Officer, such officer as is designated by the
Chief Executive Officer shall be vested with all the powers and perform all the
duties of the Chief Executive Officer as defined by these By-Laws. When
designating an officer to serve in his absence, the Chief Executive Officer
shall select an officer who is a member of the Board of Directors whenever such
officer is available.
SECTION 3.03. POWERS OF OFFICERS AND MANAGEMENT STAFF. The Chief Executive
Officer, the Chairman of the Board, the President, and those officers so
designated and authorized by the Chief Executive Officer are authorized for an
on behalf of the Bank, and to the extent permitted by law, to make loans and
discounts; to purchase or acquire drafts, notes, stock, bonds, and other
securities for investment of funds held by the Bank; to execute and purchase
acceptances; to appoint, empower and direct all necessary agents and attor-
neys; to sign and give any notice required to be given; to demand payment
and/or to declare due for any default any debt or obligation due or payable to
the Bank upon demand or authorized to be declared due; to foreclose any mort-
gages, to exercise any option, privilege or election to forfeit, terminate,
extend or renew any lease; to authorize and direct any proceedings for the
collection of any money or for the enforcement
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<PAGE> 22
of any right or obligation; to adjust, settle and compromise all claims of
every kind and description in favor of or against the Bank, and to give
receipts, releases and discharges therefor; to borrow money and in connection
therewith to make, execute and deliver notes, bonds or other evidences of
indebtedness; to pledge or hypothecate any securities or any stocks, bonds,
notes or any property real or personal held or owned by the Bank, or to
rediscount any notes or other obligations held or owned by the Bank, to
employ or direct the employment of all personnel, including elected and
appointed officers, and the dismissal of them at pleasure, and in furtherance
of and in addition to the powers hereinabove set forth to do all such acts and
to take all such proceedings as in his judgment are necessary and incidental to
the operation of the Bank.
Other persons in the employment of the Bank, including but not limited
to officers and other members of the management staff, may be authorized by the
Chief Executive Officer, or by an officer so designated and authorized by the
chief Executive Officer, to perform the powers set forth above, subject,
however, to such limitations and conditions as are set forth in the
authorization given to such persons.
SECTION 3.04. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Chief Executive
Officer or the Board of Directors as Assistant Secretary to perform the duties
of the Secretary.
SECTION 3.05. EXECUTION OF DOCUMENTS. The Chief Executive Officer, Chairman
of the Board, President, any officer being a member of the Bank's management
staff who is also a person in charge of and responsible for any department
within the Bank and any other officer to the extent such officer is so
designated and authorized by the Chief Executive Officer, the Chairman of the
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<PAGE> 23
Board, the President, or any other officer who is a member of the Bank's
management staff who is in charge of and responsible for any department within
the Bank, are hereby authorized on behalf of the Bank to sell, assign, lease,
mortgage, transfer, deliver and convey any real or personal property now or
hereafter owned by or standing in the name of the Bank or its nominee, or held
by this Bank as collateral security, and to execute and deliver such deeds,
contracts, leases, assignments, bills of sale, transfers or other papers or
documents as may be appropriate in the circumstances; to execute any loan
agreement, security agreement, commitment letters and financing statements and
other documents on behalf of the Bank as a lender; to execute purchase orders,
documents and agreements entered into by the Bank in the ordinary course of
business, relating to purchase, sale, exchange or lease of services, tangible
personal property, materials and equipment for the use of the Bank; to execute
powers of attorney to perform specific or general functions in the name of or
on behalf of the Bank; to execute promissory notes or other instruments
evidencing debt of the Bank; to execute instruments pledging or releasing
securities for public funds, documents submitting public fund bids on behalf of
the Bank and public fund contracts; to purchase and acquire any real or
personal property including loan portfolios and to execute and deliver such
agreements, contracts or other papers or documents as may be appropriate in the
circumstances; to execute any indemnity and fidelity bonds, proxies or other
papers or documents of like or different character necessary, desirable or
incidental to the conduct of its banking business; to execute and deliver
settlement agreements or other papers or documents as may be appropriate in
connection with a dismissal authorized by Section 3.01(c) of these By-laws; to
execute agreements, instruments, documents, contracts or other papers of like
or difference character necessary, desirable or incidental to the conduct of
its banking business; and to execute and deliver partial releases from and
discharges or assignments of mortgages, financing statements and assignments or
surrender of insurance policies, now or hereafter held by this Bank.
The Chief Executive Officer, Chairman of the Board, President, any
officer being a member of the Bank's management staff who is also a person in
charge of
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<PAGE> 24
and responsible for any department within the Bank, and any other officer of
the Bank so designated and authorized by the Chief Executive Officer, Chairman
of the Board, President or any officer who is a member of the Bank's management
staff who is in charge of and responsible for any department within the Bank
are authorized for and on behalf of the Bank to sign and issue checks, drafts,
and certificates of deposit; to sign and endorse bills of exchange, to sign and
countersign foreign and domestic letters of credit, to receive and receipt for
payments of principal, interest, dividends, rents, fees and payments of every
kind and description paid to the Bank, to sign receipts for property acquired
by or entrusted to the Bank, to guarantee the genuineness of signatures on
assignments of stocks, bonds or other securities, to sign certifications of
checks, to endorse and deliver checks, drafts, warrants, bills, notes,
certificates of deposit and acceptances in all business transactions of the
Bank.
Other persons in the employment of the Bank and of its subsidiaries,
including but not limited to officers and other members of the management
staff, may be authorized by the Chief Executive Officer, Chairman of the Board,
President or by an officer so designated by the Chief Executive Officer,
Chairman of the Board, or President to perform the acts and to execute the
documents set forth above, subject, however, to such limitations and conditions
as are contained in the authorization given to such person.
SECTION 3.06. PERFORMANCE BOND. All officers and employees of the Bank shall
be bonded for the honest and faithful performance of their duties for such
amount as may be prescribed by the Board of Directors.
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ARTICLE IV
TRUST DEPARTMENT
SECTION 4.01. TRUST DEPARTMENT. Pursuant to the fiduciary powers granted to
this Bank under the provisions of Federal Law and Regulations of the
Comptroller of the Currency, there shall be maintained a separate Trust
Department of the Bank, which shall be operated in the manner specified herein.
SECTION 4.02. TRUST MANAGEMENT COMMITTEE. There shall be a standing Committee
known as the Trust Management Committee, consisting of at least five members, a
majority of whom shall not be officers of the Bank. The Committee shall
consist of the Chairman of the Board who shall be Chairman of the Committee,
the President, and at least three other Directors appointed by the Board of
Directors and who shall continue as members of the Committee until their
successors are appointed. Any vacancy in the Trust Management Committee may be
filled by the Board at any regular or special meeting. In the event of the
absence of any member or members, such Committee may, in its discretion,
appoint members of the Board to fill the place of such absent members to serve
during such absence. Three members of the Committee shall constitute a quorum.
Any member of the Committee may be removed by the Board by a majority vote at
any regular or special meeting of the Board. The Committee shall meet at such
times as it may determine or at the call of the Chairman, or President or any
two members thereof.
The Trust Management Committee, under the general direction of the
Board of Directors, shall supervise the policy of the Trust Department which
shall be formulated and executed in accordance with Law, Regulations of the
Comptroller of the Currency, and sound fiduciary principles.
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<PAGE> 26
SECTION 4.03. TRUST EXAMINATION COMMITTEE. There shall be a standing Commit-
tee known as the Trust Examination Committee, consisting of three directors
appointed by the Board of Directors and who shall continue as members of the
committee until their successors are appointed. Such members shall not be
active officers of the Bank. Two members of the Committee shall constitute a
quorum. Any member of the Committee may be removed by the Board by a majority
vote at any regular or special meeting of the Board. The Committee shall meet
at such times as it may determine or at the call of two members thereof.
This Committee shall, at least once during each calendar year and
within fifteen months of the last such audit, or at such other time(s) as may
be required by Regulations of the Comptroller of the Currency, make suitable
audits of the Trust Department or cause suitable audits to be made by auditors
responsible only to the Board of Directors, and at such time shall ascertain
whether the Department has been administered in accordance with Law,
Regulations of the Comptroller of the Currency and sound fiduciary principles.
The Committee shall promptly make a full report of such audits in
writing to the Board of Directors of the Bank, together with a recommendation
as to what action, if any, may be necessary to correct any unsatisfactory
condition. A report of the audits together with the action taken thereon shall
be noted in the Minutes of the Board of Directors and such report shall be a
part of the records of this Bank.
SECTION 4.04. MANAGEMENT. The Trust Department shall be under the management
and supervision of an officer of the Bank or of the trust affiliate of the Bank
designated by and subject to the advice and direction of the Chief Executive
Officer. Such officer having supervisory responsibility over the Trust
Department shall do or cause to be done all things necessary or proper in
carrying on the business of the Trust Department in accordance with provisions
of law and applicable regulations.
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<PAGE> 27
SECTION 4.05. HOLDING OF PROPERTY. Property held by the Trust Department may
be carried in the name of the Bank in its fiduciary capacity, in the name of
Bank, or in the name of a nominee or nominees.
SECTION 4.06. TRUST INVESTMENTS. Funds held by the Bank in a fiduciary
capacity awaiting investment or distribution shall not be held uninvested or
undistributed any longer than is reasonable for the proper management of the
account and shall be invested in accordance with the instrument establishing a
fiduciary relationship and local law. Where such instrument does not specify
the character or class of investments to be made and does not vest in the Bank
any discretion in the matter, funds held pursuant to such instrument shall be
invested in any investment which corporate fiduciaries may invest under local
law.
The investments of each account in the Trust Department shall be kept
separate from the assets of the Bank, and shall be placed in the joint custody
or control of not less than two of the officers or employees of the Bank or of
the trust affiliate of the Bank designated for the purpose by the Trust
Management Committee.
SECTION 4.07. EXECUTION OF DOCUMENTS. The Chief Executive Officer, Chairman
of the Board, President, any officer of the Trust Department, and such other
officers of the trust affiliate of the Bank as are specifically designated and
authorized by the Chief Executive Officer, the President, or the officer in
charge of the Trust Department, are hereby authorized, on behalf of this Bank,
to sell, assign, lease, mortgage, transfer, deliver and convey any real
property or personal property and to purchase and acquire any real or personal
property and to execute and deliver such agreements, contracts, or other papers
and documents as may be appropriate in the circumstances for property now or
hereafter owned by or standing in the name of this Bank, or its nominee, in any
fiduciary capacity, or in the name of any principal for whom this Bank may now
or hereafter be acting under a power of attorney, or as agent and to execute
and deliver partial releases from
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<PAGE> 28
any discharges or assignments or mortgages and assignments or surrender of
insurance policies, to execute and deliver deeds, contracts, leases,
assignments, bills of sale, transfers or such other papers or documents as may
be appropriate in the circumstances for property now or hereafter held by this
Bank in any fiduciary capacity or owned by any principal for whom this Bank may
now or hereafter be acting under a power of attorney or as agent; to execute
and deliver settlement agreements or other papers or documents as may be
appropriate in connection with a dismissal authorized by Section 3.01(c) of
these By-laws; provided that the signature of any such person shall be attested
in each case by any officer of the Trust Department or by any other person who
is specifically authorized by the Chief Executive Officer, the President or the
officer in charge of the Trust Department.
The Chief Executive Officer, Chairman of the Board, President, any
officer of the Trust Department and such other officers of the trust affiliate
of the Bank as are specifically designated and authorized by the Chief
Executive Officer, the President, or the officer in charge of the Trust
Department, or any other person or corporation as is specifically authorized by
the Chief Executive Officer, the President or the officer in charge of the
Trust Department, are hereby authorized on behalf of this Bank, to sign any and
all pleadings and papers in probate and other court proceedings, to execute any
indemnity and fidelity bonds, trust agreements, proxies or other papers or
documents of like or different character necessary, desirable or incidental to
the appointment of the Bank in any fiduciary capacity and the conduct of its
business in any fiduciary capacity; also to foreclose any mortgage, to execute
and deliver receipts for payments of principal, interest, dividends, rents,
fees and payments of every kind and description paid to the Bank; to sign
receipts for property acquired or entrusted to the Bank; also to sign stock or
bond certificates on behalf of this Bank in any fiduciary capacity and on
behalf of this Bank as transfer agent or registrar; to guarantee the
genuineness of signatures on assignments of stocks, bonds or other securities,
and to authenticate bonds, debentures, land or lease trust certificates or
other forms of security issued pursuant to any indenture under which this Bank
now or hereafter is acting as
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<PAGE> 29
Trustee. Any such person, as well as such other persons as are specifically
authorized by the Chief Executive Officer or the officer in charge of the Trust
Department, may sign checks, drafts and orders for the payment of money
executed by the Trust Department in the course of its business.
SECTION 4.08. VOTING OF STOCK. The Chairman of the Board, President, any
officer of the Trust Department, any officer of the trust affiliate of the Bank
and such other persons as may be specifically authorized by Resolution of the
Trust Management Committee or the Board of Directors, may vote shares of stock
of a corporation of record on the books of the issuing company in the name of
the Bank or in the name of the Bank as fiduciary, or may grant proxies for the
voting of such stock of the granting if same is permitted by the instrument
under which the Bank is acting in a fiduciary capacity, or by the law
applicable to such fiduciary account. In the case of shares of stock which are
held by a nominee of the Bank, such shares may be voted by such person(s)
authorized by such nominee.
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<PAGE> 30
ARTICLE V
STOCKS AND STOCK CERTIFICATES
SECTION 5.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the President, or a Vice President (which signature may be engraved,
printed or impressed), and shall be signed manually by the Secretary, or any
other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its fact
that the stock represented thereby is transferable only upon the books of the
Bank properly endorsed and shall recite such other information as is required
by law and deemed appropriate by the Board. The corporate seal may be
facsimile engraved or printed.
SECTION 5.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of any affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the President, or a Vice President. The Board of Directors, or the
Chief Executive Officer, may authorize the issuance of a new certificate
therefor without the furnishing of indemnity. Stock Transfer Books, in which
all transfers of stock shall be recorded, shall be provided.
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<PAGE> 31
The stock transfer books may be closed for a reasonable period and
under such conditions as the Board of Directors may at any time determine for
any meeting of shareholders, the payment of dividends or any other lawful
purpose. In lieu of closing the transfer books, the Board may, in its
discretion, fix a record date and hour constituting a reasonable period prior
to the day designated for the holding of any meeting of the shareholders or the
day appointed for the payment of any dividend or for any other purpose at the
time as of which shareholders entitled to notice of and to vote at any such
meeting or to receive such dividend or to be treated as shareholders for such
other purpose shall be determined, and only shareholders of record at such time
shall be entitled to notice of or to vote at such meeting or to receive such
dividends or to be treated as shareholders for such other purpose.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. SEAL. The impression made below is an impression of the seal
adopted by the Board of Directors of BANK ONE, COLUMBUS, NATIONAL ASSOCIATION.
The Seal may be affixed by any officer of the Bank to any document executed by
an authorized officer on behalf of the Bank, and any officer may certify any
act, proceedings, record, instrument or authority of the Bank.
SECTION 6.02. BANKING HOURS. Subject to ratification by the Executive
Committee, the Bank and each of its Branches shall be open for business on such
days and during such hours as the Chief Executive Officer of the Bank shall,
from time to time, prescribe.
SECTION 6.03. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of the judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of
the Board of Directors shall be recorded in the minute book of the Bank. The
minutes of each such meeting shall be signed by the presiding Officer and
attested by the secretary of the meetings.
SECTION 6.04. AMENDMENT OF BY-LAWS. These By-Laws may be amended by vote of a
majority of the Directors.
- 32 -
<PAGE> 33
EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
CONSENT
The undersigned, designated to act as Trustee under the Indenture for Cardinal
Health, Inc. described in the attached Statement of Eligibility and
Qualification, does hereby consent that reports of examinations by Federal,
State, Territorial, or District Authorities may be furnished by such
authorities to the Commission upon the request of the Commission.
This Consent is given pursuant to the provision of Section 321(b) of the Trust
Indenture Act of 1939, as amended.
Bank One, Columbus, NA
Dated: March 28, 1997 By: /s/ Ted Kravits
-------------------------------
Ted Kravits
Authorized Signer
- 33 -
<PAGE> 34
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
OMB NUMBER: 7100-0035
FEDERAL DESPOSIT INSURANCE CORPORATION
OMB NUMBER: 3064-0052
OFFICE OF THE COMPTROLLER OF THE CURRENCY
OMB NUMBER: 1557-0081
EXPIRES MARCH 31, 1999
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
- -------------------------------------------------------------------------------
[LOGO] -----
| 1 |
-----
Please refer to page i,
Table of Contents, for
the required disclosure
of estimated burden.
- -------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR A BANK WITH DOMESTIC AND
FOREIGN OFFICES - FFIEC 031
(961231)
Report at the close of business December 31, 1996 -----------
(RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State member banks); 12
U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section 161
(National banks).
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
- -------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National banks.
I, Richard D. Nadler, Controller
---------------------------------------------------
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/ Richard D. Nadler
- ---------------------------------------------------
Signature of Officer Authorized to Sign Report
1/30/97
- ---------------------------------------------------
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 principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it
has been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
/s/ William M. Bennett
- ---------------------------------------------------
Director (Trustee)
/s/ Frederick L. Cullen
- ---------------------------------------------------
Director (Trustee)
/s/ Alex Shumate
- ---------------------------------------------------
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, 2127 Espey Court, Suite 204, 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, 2127
Espey Court, Suite 204, Crofton, MD 21114.
- -------------------------------------------------------------------------------
FDIC Certificate Number ________________
Banks should affix the address label in this space.
Bank One, Columbus, National Association
- ----------------------------------------
Legal Title of Bank
100 East Broad Street
- ----------------------------------------
City
Columbus, OH 43271
- ----------------------------------------
State Abbrev. ZIP Code
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE> 35
FFIEC 031
Page i
---
2
---
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
SIGNATURE PAGE COVER
REPORT OF INCOME
Schedule RI--Income Statement ...................... RI-1, 2, 3
Schedule RI-A--Changes in Equity Capital ................. RI-4
Schedule RI-B--Charge-offs and Recoveries and
Changes in Allowance for Loan and Lease
Losses .............................................. RI-4, 5
Schedule RI-C--Applicable Income Taxes by
Taxing Authority ....................................... RI-5
Schedule RI-D--Income from
International Operations ............................... RI-6
Schedule RI-E--Explanations ........................... RI-7, 8
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-3, 4, 5
Schedule RC-C--Loans and Lease Financing
Receivables:
Part I. Loans and Leases ............................ RC-6, 7
Part II. Loans to Small Businesses and
Small Farms (included in the forms for
June 30 only) ................................... RC-7a, 7b
Schedule RC-D--Trading Assets and Liabilities
(to be completed only by selected banks) ............... RC-8
Schedule RC-E--Deposit Liabilities ............... RC-9, 10, 11
Schedule RC-F--Other Assets ............................. RC-11
Schedule RC-G--Other Liabilities ........................ RC-11
Schedule RC-H--Selected Balance Sheet Items
for Domestic Offices .................................. RC-12
Schedule RC-I--Selected Assets and Liabilities
of IBFs ............................................... RC-13
Schedule RC-K--Quarterly Averages ....................... RC-13
Schedule RC-L--Off-Balance Sheet
Items ......................................... RC-14, 15, 16
Schedule RC-M--Memoranda ............................ RC-17, 18
Schedule RC-N--Past Due and Nonaccrual
Loans, Leases, and Other Assets ................... RC-19, 20
Schedule RC-O--Other Data for Deposit
Insurance Assessments ............................. RC-21, 22
Schedule RC-R--Regulatory Capital ................... RC-23, 24
Optional Narrative Statement Concerning
the Amounts Reported in the Reports
of Condition and Income ............................... RC-25
Special Report (to be completed by all banks)
Schedule RC-J--Repricing Opportunities (sent only to
and to be completed only by savings banks)
DISCLOSURE OF ESTIMATED BURDEN
The estimated average burden associated with this information collection is
32.2 hours per respondent and is estimated to vary from 15 to 230 hours per
response, depending on individual circumstances. Burden estimates include the
time for reviewing instructions, gathering and maintaining data in the required
form, and completing the information collection, but exclude the time for
compiling and maintaining business records in the normal course of a
respondent's activities. Comments concerning the accuracy of this burden
estimate and suggestions for reducing this burden should be directed to the
Office of Information and Regulatory Affairs, Office of Management and Budget,
Washington, D.C., 20503, and to one of the following:
Secretary
Board of Governors of the Federal Reserve System
Washington, D.C. 20551
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
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> 36
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RI-1
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Consolidated Report of Income
for the period January 1, 1996-December 31, 1996
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
Schedule RI--Income Statement
<TABLE>
<S> <C> <C> <C>
--------
| I480 |
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ----------------------------------------------------------------------------------------------|--------------------|
1. Interest income: | |
a. Interest and fee income on loans: | |
(1) In domestic offices: | |
(a) Loans secured by real estate................................................... | 4011 115,602 | 1.a.(1)(a)
(b) Loans to depository institutions............................................... | 4019 92 | 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to farmers............ | 4024 930 | 1.a.(1)(c)
(d) Commercial and industrial loans................................................ | 4012 79,834 | 1.a.(1)(d)
(e) Acceptances of other banks..................................................... | 4026 0 | 1.a.(1)(e)
(f) Loans to individuals for household, family, and other personal expenditures: | |
(1) Credit cards and related plans............................................. | 4054 449,921 | 1.a.(1)(f)(1)
(2) Other...................................................................... | 4055 96,758 | 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions......................... | 4056 2 | 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and political | |
subdivisions in the U.S.: | |
(1) Taxable obligations........................................................ | 4503 158 | 1.a.(1)(h)(1)
(2) Tax-exempt obligations..................................................... | 4504 1,075 | 1.a.(1)(h)(2)
(i) All other loans in domestic offices............................................ | 4058 8,970 | 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 70,449 | 1.b.(1)
(2) Tax-exempt leases.................................................................. | 4307 57 | 1.b.(2)
c. Interest income on balances due from depository institutions:(1) | |
(1) In domestic offices................................................................ | 4105 5 | 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs...................... | 4106 0 | 1.c.(2)
d. Interest and dividend income on securities: | |
(1) U.S. Treasury securities and U.S. Government agency and corporation obligations.... | 4027 21,966 | 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.: | |
(a) Taxable securities............................................................. | 4506 1 | 1.d.(2)(a)
(b) Tax-exempt securities.......................................................... | 4507 2,771 | 1.d.(2)(b)
(3) Other domestic debt securities..................................................... | 3657 628 | 1.d.(3)
(4) Foreign debt securities............................................................ | 3658 214 | 1.d.(4)
(5) Equity securities (including investments in mutual funds).......................... | 3659 229 | 1.d.(5)
e. Interest income from trading assets.................................................... | 4069 0 | 1.e.
--------------------
</TABLE>
- ----------
(1) Includes interest income on time certificates of deposit not held for
trading.
3
<PAGE> 37
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RI-2
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RI--Continued
<TABLE>
<S> <C> <C> <C>
--------------------
| Year-to-date |
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ------------------------------------------------------------------------------|--------------------|
1. Interest income (continued) | |
f. Interest income on federal funds sold and securities purchased under | |
agreements to resell in domestic offices of the bank and of its Edge | |
and Agreement subsidiaries, and in IBFs............................... | 4020 14,116 | 1.f.
g. Total interest income (sum of items 1.a through 1.f).................. | 4107 863,788 | 1.g.
2. Interest expense: | |
a. Interest on deposits: | |
(1) Interest on deposits in domestic offices: | |
(a) Transaction accounts (NOW accounts, ATS accounts, and | |
telephone and preauthorized transfer accounts)................ | 4508 1,317 | 2.a.(1)(a)
(b) Nontransaction accounts: | |
(1) Money market deposit accounts (MMDAs)..................... | 4509 53,152 | 2.a.(1)(b)(1)
(2) Other savings deposits.................................... | 4511 25,261 | 2.a.(1)(b)(2)
(3) Time certificates of deposit of $100,000 or more.......... | 4174 6,248 | 2.a.(1)(b)(3)
(4) All other time deposits................................... | 4512 60,099 | 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement | |
subsidiaries, and IBFs............................................ | 4172 33,767 | 2.a.(2)
b. Expense of federal funds purchased and securities sold under | |
agreements to repurchase in domestic offices of the bank and of its | |
Edge and Agreement subsidiaries, and in IBFs.......................... | 4180 79,224 | 2.b.
c. Interest on demand notes issued to the U.S. Treasury, trading | |
liabilities, and other borrowed money................................. | 4185 54,028 | 2.e.
d. Interest on mortgage indebtedness and obligations under capitalized | |
leases................................................................ | 4072 373 | 2.d.
e. Interest on subordinated notes and debentures......................... | 4200 11,704 | 2.e.
f. Total interest expense (sum of items 2.a through 2.e)................. | 4073 325,173 | 2.f.
3. Net interest income (item 1.g minus 2.f)................................. | | RIAD 4074 | 538,615 | 3.
4. Provisions: | |
a. Provision for loan and lease losses................................... | | RIAD 4230 | 292,629 | 4.
b. Provision for allocated transfer risk................................. | | RIAD 4243 | 0 | 4.
5. Noninterest income: | |
a. Income from fiduciary activities...................................... | 4070 37,418 | 5.a.
b. Service charges on deposit accounts in domestic offices............... | 4080 39,528 | 5.b.
c. Trading revenue (must equal Schedule RI, sum of Memorandum | |
items 8.a through 8.d)................................................ | 4220 0 | 5.c.
d. Other foreign transaction gains (losses).............................. | 4076 1,981 | 5.d.
e. Not applicable | |
f. Other noninterest income: | |
(1) Other fee income.................................................. | 5407 279,551 | 5.f.(1)
(2) All other noninterest income*..................................... | 5408 100,816 | 5.f.(2)
g. Total noninterest income (sum of items 5.a through 5.f)............... | | RIAD 4079 | 459,284 | 5.
6. a. Realized gains (losses) on held-to-maturity securities................ | | RIAD 3521 | (49)| 6.
b. Realized gains (losses) on available-for-sale securities.............. | | RIAD 3156 | 9 | 6.
7. Noninterest expense: | |
a. Salaries and employee benefits........................................ | 4135 151,416 | 7.a.
b. Expenses of premises and fixed assets (net of rental income) | |
(excluding salaries and employee benefits and mortgage interest)...... | 4217 26,832 | 7.b.
c. Other noninterest expense*............................................ | 4092 482,880 | 7.c.
d. Total noninterest expense (sum of items 7.a through 7.c).............. | | RIAD 4093 | 661,128 | 7.
8. Income (loss) before income taxes and extraordinary items and other | |
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d) | | RIAD 4301 | 44,102 | 8.
9. Applicable income taxes (on item 8)...................................... | | RIAD 4302 | 12,711 | 9.
10. Income (loss) before extraordinary items and other adjustments (item 8 | |
minus 9)................................................................. | | RIAD 4300 | 31,391 | 10.
--------------------
</TABLE>
- ----------
* Describe on Schedule RI-E--Explanations.
4
<PAGE> 38
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RI-3
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RI--Continued
<TABLE>
<S> <C> <C>
--------------
| Year-to-date |
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ---------------------------------------------------------------------------|--------------------|
11. Extraordinary items and other adjustments: | |
a. Extraordinary items and other adjustments, gross of income taxes*.. | 4310 0 | 11.a.
b. Applicable income taxes (on item 11.a)*............................ | 4315 0 | 11.b.
c. Extraordinary items and other adjustments, net of income taxes | |
(item 11.a minus 11.b)............................................. | | RIAD 4320 | 0 | 11.c.
12. Net income (loss) (sum of items 10 and 11.c).......................... | | RIAD 4340 | 31,391 | 12.
--------------------
------
| I481 | <-
--------------|
Memoranda | Year-to-date |
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after | |
August 7, 1996, that is not deductible for federal income tax purposes........................... | 4513 190 | M.1.
2. Income from the sale and servicing of mutual funds and annuities in domestic offices | |
(included in Schedule RI, item 8)................................................................ | 8431 1,857 | M.2.
3.-4. Not applicable | |
5. Number of full-time equivalent employees on payroll at end of current period (round to | Number |
nearest whole number)............................................................................ | 4150 3,561 | M.5.
6. Not applicable | |
7. If the reporting bank has restated its balance sheet as a result of applying push down | MM DD YY |
accounting this calendar year, report the date of the bank's acquisition......................... | 9106 00/00/00 | M.7.
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments) | |
(sum of Memorandum items 8.a. through 8.d must equal Schedule RI, item 5.c): | Bil Mil Thou |
a. Interest rate exposures....................................................................... | 8757 0 | M.8.a.
b. Foreign exchange exposures.................................................................... | 8758 0 | M.8.b.
c. Equity security and index exposures........................................................... | 8759 0 | M.8.c.
d. Commodity and other exposures................................................................. | 8760 0 | M.8.d.
9. Impact on income of off-balance sheet derivatives held for purposes other than trading: | |
a. Net increase (decrease) to interest income.................................................... | 8761 (36)| M.9.a.
b. Net (increase) decrease to interest expense................................................... | 8762 (2,261)| M.9.b.
c. Other (noninterest) allocations............................................................... | 8763 (307)| M.9.c.
10. Credit losses on off-balance sheet derivatives (see instructions)................................ | A251 0 | M.10.
--------------------
</TABLE>
- ---------------
* Describe on Schedule RI-E--Explanations.
5
<PAGE> 39
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RI-4
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RI-A--Changes in Equity Capital
Indicate decreases and losses in parentheses.
<TABLE>
<S> <C> <C> <C>
------
| I483 | <-
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
1. Total equity capital originally reported in the December 31, 1995, Reports of Condition | |
and Income....................................................................................... | 3215 501,192 | 1.
2. Equity capital adjustments from amended Reports of Income, net*.................................. | 3216 (10,104)| 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2)............................. | 3217 491,088 | 3.
4. Net income (loss) (must equal Schedule RI, item 12).............................................. | 4340 31,391 | 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net............................... | 4346 0 | 5.
6. Changes incident to business combinations, net................................................... | 4356 0 | 6.
7. LESS: Cash dividends declared on preferred stock................................................. | 4470 0 | 7.
8. LESS: Cash dividends declared on common stock.................................................... | 4460 16,000 | 8.
9. Cumulative effect of changes in accounting principles from prior years* (see instructions for | |
this schedule)................................................................................... | 4411 0 | 9.
10. Corrections of material accounting errors from prior years* (see instructions for this schedule) | 4412 0 | 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities................. | 8433 (4,665)| 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 173,594 | 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal | |
Schedule RC, item 28)............................................................................ | 3210 675,408 | 14.
--------------------
</TABLE>
- ----------
*Describe on Schedule RI-E--Explanations.
Schedule RI-B--Charge-offs and Recoveries and Changes
in Allowance for Loan and 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>
<S> <C> <C> <C> <C> <C>
------
| I486 | <-
-----------------------------------------|
| (Column A) | (Column B) |
| Charge-offs | Recoveries |
|--------------------|--------------------|
| Calendar year-to-date |
|-----------------------------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
- ------------------------------------------------------------------------------|--------------------|--------------------|
1. Loans secured by real estate: | | |
a. To U.S. addresses (domicile)........................................... | 4651 3,364 | 4661 2,014 | 1.a.
b. To non-U.S. addressees (domicile)...................................... | 4652 0 | 4662 0 | 1.b.
2. Loans to depository institutions and acceptances of other banks: | | |
a. To U.S. banks and other U.S. depository institutions................... | 4653 0 | 4663 0 | 2.a.
b. To foreign banks....................................................... | 4654 0 | 4664 0 | 2.b.
3. Loans to finance agricultural production and other loans to farmers....... | 4655 21 | 4665 21 | 3.
4. Commercial and industrial loans: | | |
a. To U.S. addressees (domicile).......................................... | 4645 2,744 | 4617 826 | 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 196,606 | 4666 21,147 | 5.a.
b. Other (includes single payment, installment, and all student loans).... | 4657 23,926 | 4667 13,861 | 5.b.
6. Loans to foreign governments and official institutions.................... | 4643 0 | 4627 0 | 6.
7. All other loans........................................................... | 4644 435 | 4628 755 | 7.
8. Lease financing receivables: | | |
a. Of U.S. addressees (domicile).......................................... | 4658 2,109 | 4668 425 | 8.a.
b. Of non-U.S. addressees (domicile)...................................... | 4659 0 | 4669 0 | 8.b.
9. Total (sum of items 1 through 8).......................................... | 4635 229,205 | 4605 39,049 | 9.
-----------------------------------------
</TABLE>
6
<PAGE> 40
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RI-5
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RI-B--Continued
Part I. Continued
<TABLE>
<S> <C> <C> <C> <C> <C>
------------------------------------------
| (Column A) | (Column B) |
| Charge-offs | Recoveries |
------------------------------------------
| Calendar year-to-date |
Memoranda --------------------|--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
- ---------------------------------------------------------------------------|--------------------|--------------------|
1-3. Not applicable | | |
4. Loans to finance commercial real estate, construction, and land | | |
development activities (not secured by real estate) included in | | |
Schedule RI-B, part I, items 4 and 7, above........................... | 5409 0 | 5410 253 | M.4.
5. Loans secured by real estate in domestic offices (included in | | |
Schedule RI-B, part I, item 1 above: | | |
a. Construction and land development.................................. | 3582 241 | 3583 158 | M.5.a.
b. Secured by farmland................................................ | 3584 0 | 3585 4 | m.5.b
c. Secured by 1-4 family residential properties: | | |
(1) Revolving, open-end loans secured by 1-4 family residential | | |
properties and extended under lines of credit.................. | 5411 1,112 | 5412 28 | M.5.c.(1)
(2) All other loans secured by 1-4 family residential poperties.... | 5413 1,871 | 5414 899 | M.5.a.(2)
d. Secured by multifamily (5 or more) residential properties.......... | 3588 0 | 3589 300 | M.5.d.
e. Secured by nonfarm residential properties.......................... | 3590 140 | 3591 425 | M.5.e.
-------------------- --------------------
</TABLE>
Part II. Changes in Allowence for Loan and Lease Losses
<TABLE>
<S> <C> <C> <C>
--------------------
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
1. Balance originally reported in the December 31, 1995, Reports of Condition and Income........... | 3124 152,121 | 1.
2. Recoveries (must equal part I, item 9, column B above)........................................... | 4605 38,049 | 2.
3. LESS: Charge-offs (must equal part I, item 9, column A above).................................... | 4635 228,205 | 3.
4. Provision for loan and lease losses (must equal Schedule RI, item 4.a)........................... | 4230 292,629 | 4.
5. Adjustments* (see instructions for this schedule)................................................ | 4815 0 | 5.
6. Balance end of current period (sum of items 1 through 5) (must equal Schedule RC, | |
item 4.b)........................................................................................ | 3123 254,594 | 6.
--------------------
- -----------------
* Describe on Schedule RI-E -- Explanations.
</TABLE>
Schedule RI-C -- Applicable Income Taxes by Taxing Authority
Schedule RI-C is to be reported with the December Report of Income.
<TABLE>
<S> <C> <C> <C>
--------
| I489 | <-
--------------------
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
1. Federal......................................................................................... | 4780 11,332 | 1.
2. State and local.................................................................................. | 4790 1,379 | 2.
3. Foreign.......................................................................................... | 4795 0 | 3.
4. Total (sum of items 1 through 3) (must equal sum of Schedule RI, items 9 and 11.b................ | 4770 12,711 | 4.
_______________________| |
5. Deferred portion of item 4................................................| RIAD 4772 | 32,024 | | 5.
--------------------------------------------
</TABLE>
7
<PAGE> 41
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RI-6
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
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>
<S> <C> <C> <C>
------
| I492 | <-
--------------|
| Year-to-date |
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ----------------------------------------------------------------------------------------------------------------------|
1. Interest income and expense booked at foreign offices, Edge and Agreement subsidiaries, | |
and IBFs: | |
a. Interest income booked.................................................................... | 4837 144 | 1.a.
b. Interest expense booked................................................................... | 4838 33,767 | 1.b.
c. Net interest income booked at foreign offices, Edge and Agreement subsidiaries, and | |
IBFs (item 1.a minus 1.b)................................................................. | 4839 (33,623)| 1.c
2. Adjustments for booking location of international operations: | |
a. Net interest income attributable to international operations booked at domestic offices... | 4840 0 | 2.a.
b. Net interest income attributable to domestic business booked at foreign offices........... | 4841 0 | 2.b.
c. Net booking location adjustment (item 2.a minus 2.b)...................................... | 4842 0 | 2.c.
3. Noninterest income and expense attributable to international operations: | |
a. Noninterest income attributable to international operations............................... | 4097 0 | 3.a.
b. Provision for loan and lease losses attributable to international operations.............. | 4235 0 | 3.b.
c. Other noninterest expense attributable to international operations........................ | 4239 0 | 3.c.
d. Net noninterest income (expense) attributable to international operations (item 3.a minus | |
3.b and 3.c).............................................................................. | 4643 0 | 3.d.
4. Estimated pretax income, attributable to international operations before capital allocation | |
adjustment [sum of items 1.c, 2.c, and 3.d].................................................. | 4844 (33,623)| 4.
5. Adjustment to pretax income for internal allocations to international operations to reflect | |
the effects of equity capital on overall bank funding costs.................................. | 4845 0 | 5.
6. Estimated pretax income attributable to international operations after capital allocation | |
adjustment (sum of items 4 and 5) | 4846 (33,623)| 6.
7. Income taxes attributable to income from international operations as estimated in item 6..... | 4797 (11,768)| 7.
8. Extimated net income attributable to international operations (item 6 minus 7)............... | 4341 (21,855)| 8.
--------------------
Memoranda
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ----------------------------------------------------------------------------------------------------------------------|
1. Intracompany interest income included in item 1.a above...................................... | 4847 0 | M.1.
2. Intracompany interest expense included in item 1.b above..................................... | 4848 0 | M.2.
--------------------
Part II. Supplementary Details on Income from International Operations Required by the Departments of Commerce and
Treasury for Purposes of the U.S. International Accounts and the U.S. National Income and Product Accounts
--------------|
| Year-to-date |
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ----------------------------------------------------------------------------------------------------------------------|
1. Interest income booked at IBFs............................................................... | 4849 0 | 1.
2. Interest expense booked at IBFs.............................................................. | 4850 0 | 2.
3. Noninterest income attributable to international operations booked at domestic offices | |
(excluding IBFs): | |
a. Gains (losses) and extraordinary items.................................................... | 5491 0 | 3.a.
b. Fees and other noninterest income......................................................... | 5492 0 | 3.b.
4. Provision for loan and lease losses attributable to international operations booked at | |
domestic offices (excluding IBFs)............................................................ | 4852 0 | 4.
5. Other noninterest expense attributable to international operations booked at domestic offices | |
(excluding IBFs)............................................................................. | 4853 0 | 5.
--------------------
</TABLE>
8
<PAGE> 42
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RI-7
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RI-E--Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedule 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>
<S> <C> <C> <C>
------
| I495 | -
--------------|
| Year-to-date |
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ----------------------------------------------------------------------------------------------------------------------|
1. All other noninterest income (from Schedule RI, item 5.f.(2)) | |
Report amounts that exceed 10% of Schedule RI, item 5.f.(2): | |
a. Net gains on other real estate owned...................................................... | 5415 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 | Card Processing Income _____________________________________________________ | 4461 80,192 | 1.d.
------------- | |
e. | TEXT 4462 | Installment Loan Servicing Income __________________________________________ | 4462 11,141 | 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 6,539 | 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 | Data Processing ____________________________________________________________ | 4464 127,687 | 2.e.
------------- | |
f. | TEXT 4467 | ____________________________________________________________________________ | 4467 | 2.f.
------------- | |
g. | TEXT 4468 | ____________________________________________________________________________ | 4468 | 2.
------------- | |
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 | Equity Capital Adjustment from Amended Call Report _________________________ | 4492 (10,104)| 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> 43
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RI-8
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RI-E--Continued
<TABLE>
<S> <C> <C> <C>
----------------
| Year-to-date |
--------------------|
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
7. Other transactions with parent holding company (from Schedule RI-A, item 13) (itemize and | |
describe all such transactions): | |
------------ | |
a.| TEXT 4498| Capital Contribution_____________________________________________________________ | 4498 173,594 | 7.a
------------ | |
b.| TEXT 4495|___________________________________________________________________________________ | 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): | I498 | I498 | <-
--- ----------------------
No comment | | (RIAD 4769)
---
Other explanations (please type or print clearly):
(TEXT 4769)
</TABLE>
10
<PAGE> 44
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-1
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
report the amount outstanding as of the last business day of the quarter.
</TABLE>
Schedule RC--Balance Sheet
<TABLE>
<S> <C> <C> <C>
--------
| C400 | <-
--------------------|
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
ASSETS | |
1. Cash and balances due from depository institutions (from Schedule RC-A): | |
a. Noninterest-bearing balances and currency and coin(1)......................................... | 0081 843,296 | 1.a.
b. Interest-bearing balances(2).................................................................. | 0071 5 | 1.b.
2. Securities: | |
a. Held-to-maturity securities (from Schedule RC-B, column A).................................... | 1754 35,729 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................................. | 1773 622,046 | 2.b.
3. Federal funds sold and securities purchased under agreements to resell in domestic offices | |
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | |
a. Federal funds sold............................................................................ | 0276 340,096 | 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 | 8,523,564 | | 4.a.
b. LESS: Allowance for loan and lease losses..................... | RCFD 3123 | 254,594 | | 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 8,268,970 | 4.d.
5. Trading assets (from Schedule RC-D).............................................................. | 3545 0 | 5.
6. Premises and fixed assets (including capitalized leases)......................................... | 2145 65,094 | 6.
7. Other real estate owned (from Schedule RC-M)..................................................... | 2150 6,543 | 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)......... | 2130 2,436 | 8.
9. Customers' liability to this bank on acceptances outstanding..................................... | 2155 5,730 | 9.
10. Intangible assets (from Schedule RC-M)........................................................... | 2143 34,111 | 10.
11. Other assets (from Schedule RC-F)................................................................ | 2160 450,453 | 11.
12. Total assets (sum of items 1 through 11)......................................................... | 2170 10,674,509 | 12.
--------------------
<FN>
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
11
<PAGE> 45
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-2
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC--Continued
<TABLE>
<S> <C> <C> <C>
--------------------------
Dollar Amounts in Thousands | Bil Mil Thou |
- ---------------------------------------------------------------------------------------------|--------------------------|
LIABILITIES | |
13. Deposits: | |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, | |
part I).............................................................................. | RCON 2200 4,560,222 | 13.a.
(1) Noninterest-bearing(1)............................... | RCON 6631 1,705,451 | | 13.a.(1)
(2) Interest-bearing..................................... | RCON 6636 2,854,771 | | 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and | |
IBFs (from Schedule RC-E, part II)................................................... | RCFN 2200 1,143,910 | 13.b.
(1) Noninterest-bearing.................................. | RCFN 6631 0 | | 13.b.(1)
(2) Interest-bearing..................................... | RCFN 6636 1,143,910 | | 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 2,063,655 | 14.a.
b. Securities sold under agreements to repurchase....................................... | RCFD 0279 0 | 14.b.
15. a. Demand notes issued to the U.S. Treasury............................................. | RCON 2840 43,633 | 15.a.
b. trading liabilities (from Schedule RC-D)............................................. | RCFD 3548 0 | 15.b.
16. Other borrowed money: | |
a. With a remaining maturity of one year or less........................................ | RCFD 2332 1,341,487 | 16.a.
b. With a remaining maturity of more than one year...................................... | RCFD 2333 403,824 | 16.b.
17. Mortgage indebtedness and obligations under capitalized leases.......................... | RCFD 2910 3,878 | 17.
18. Bank's liability on acceptances executed and outstanding................................ | RCFD 2920 5,730 | 18.
19. Subordinated notes and debentures....................................................... | RCFD 3200 264,328 | 19.
20. Other liabilities (from Schedule RC-G).................................................. | RCFD 2930 168,434 | 20.
21. Total liabilities (sum of items 13 through 20).......................................... | RCFD 2948 9,999,101 | 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 20,738 | 24.
25. Surples (exclude all surplus related to preferred stock)................................ | RCFD 3839 280,950 | 25.
26. a. Undivided profits and capital reserves............................................... | RCFD 3632 276,654 | 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities............... | RCFD 8434 (2,934)| 26.b.
27. Cumulative foreign currency translation adjustments..................................... | RCFD 3284 0 | 27
28. Total equity capital (sum of items 23 through 27)....................................... | RCFD 3210 675,408 | 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, | |
22, and 28)............................................................................. | RCFD 3300 10,674,509 | 29.
---------------------------
</TABLE>
<TABLE>
<S> <C> <C>
Memorandum -------------------
To be reported only with the March Report of Condition. | Number |
1. Indicate in the box at the right the number of the statement below that best describes the |-------------------|
most comprehensive level of auditing work performed for the bank by independent external | RCFD 6724 N/A | M.1.
auditors as of any date during 1995 -------------------
</TABLE>
1 - Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 - Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 - Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 - Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 - Review of the Bank's financial statements by external auditors
6 - Compilation of the bank's financial statements by external auditors
7 - Other audit procedures (excluding tax preparation work)
8 - No external audit work
- ------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
12
<PAGE> 46
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-3
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-A--Cash and Balances Due From Depository Institutions
<TABLE>
<CAPTION>
Exclude assets held for trading.
<S> <C> <C> <C> <C>
------
| C405 | <-
-----------------------------------------|
| (Column A) | (Column B) |
| Consolidated | Domestic |
| Bank | Offices |
|-----------------------------------------|
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou |
- ---------------------------------------------------------------------------------|--------------------|--------------------|
1. Cash items in process of collection, unposted debits, and currency and | | |
coin........................................................................ | 0022 734,399 | | 1.
a. Cash items in process of collection and unposted debits.................. | | 0020 672,636 | 1.a.
b. Currency and coin........................................................ | | 0080 61,763 | 1.b.
2. Balances due from depository institutions in the U.S. ...................... | | 0082 42,462 | 2.
a. U.S. branches and agencies of foreign banks (including their IBFs)....... | 0083 0 | | 2.a.
b. Other commerical banks in the U.S. and other depository institutions | | |
in the U.S. (including their IBFs)....................................... | 0085 42,462 | | 2.b.
3. Balances due from banks in foreign countries and foreign central banks...... | | 0070 3,263 | 3.
a. Foreign branches of other U.S. banks..................................... | 0073 0 | | 3.a.
b. Other banks in foreign countries and foreign central banks............... | 0074 3,263 | | 3.b.
4. Balances due from Federal Reserve Banks..................................... | 0090 63,177 | 0090 63,177 | 4.
5. Total (sum of items 1 through 4) (total of column A must equal | | |
Schedule RC, sum of items 1.a and 1.b)...................................... | 0010 843,301 | 0010 843,301 | 5.
-----------------------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
--------------------
Memorandum Dollar Amounts in Thousands | RCON Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item 2. | |
column B above).................................................................................. | 0050 42,462 | M.1.
--------------------
</TABLE>
Schedule RC-B--Securities
Exclude assets held for trading.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------
| C410 | <*
------------------------------------------------------------------------------------|
| Held-to-maturity | Available-for-sale |
|------------------------------------------------------------------------------------|
| (Column A) | (Column B) | (Column C) | (Column D) |
| Amortized Cost | Fair Value | Amortized Cost | Fair Value(1) |
|--------------------|---------------------|--------------------|--------------------|
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
- --------------------------------------|--------------------|---------------------|--------------------|--------------------|
1. U.S. Treasury securities......... | 0211 0 | 0213 0 | 1206 359,538 | 1287 354,164 | 1.
2. U.S. Government agency........... | | | | |
and corporation obligations | | | | |
(exclude mortgage-backed | | | | |
securities): | | | | |
a. Issued by U.S. Govern- | | | | |
ment agencies(2).............. | 1289 0 | 1290 0 | 1291 0 | 1293 0 | 2.a.
b. Issued by U.S. | | | | |
Government-sponsored | | | | |
agencies(3)................... | 1294 0 | 1295 0 | 1297 87,647 | 1296 87,318 | 2.b.
------------------------------------------------------------------------------------
<FN>
- ------------
1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c, column D.
2) Includes Small Business Administration "Guaranteed Loan Pool Certificates,"
U.S. Maritime Administration obligations, and Export-Import Bank
participation certificates.
3) Includes obligations (other than mortgage-backed securities) issued by the
Farm Credit System, the Federal Home Loan Bank System, the Federal Home Loan
Mortgage Mortgage Corporation, the Federal National Mortgage Association,
the Financing Corporation, Resolution Funding Corporation, the Student Loan
Marketing Association, and the Tennessee Valley Authority.
</TABLE>
13
<PAGE> 47
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-4
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-B--Continued
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------
| Held-to-maturity | Available-for-sale |
|------------------------------------------------------------------------------------|
| (Column A) | (Column B) | (Column C) | (Column D) |
| Amortized Cost | Fair Value | Amortized Cost | Fair Value(1) |
|--------------------|---------------------|--------------------|--------------------|
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
- ------------------------------------|--------------------|---------------------|--------------------|--------------------|
3. Securities issued by states | | | | |
and political subdivisions | | | | |
in the U.S.: | | | | |
a. General obligations.......... | 1676 12,079 | 1677 16,081 | 1678 0 | 1679 0 | 3.a.
b. Revenue obligations.......... | 1681 12,635 | 1686 10,143 | 1690 845 | 1691 863 | 3.b.
c. Industrial development | | | | |
and similar obligations...... | 1694 7,783 | 1695 7,806 | 1696 0 | 1697 0 | 3.c.
4. Mortgage-backed | | | | |
securities (MBS): | | | | |
a. Pass-through securities: | | | | |
(1) Guaranteed by GNMA....... | 1698 0 | 1699 0 | 1701 41,935 | 1702 41,969 | 4.a.(1)
(2) Issued by FNMA and FHLMC. | 1703 0 | 1705 0 | 1706 110,145 | 1707 111,114 | 4.a.(2)
(3) Other pass-through | | | | |
securities............... | 1709 482 | 1710 470 | 1711 5,579 | 1713 5,714 | 4.a.(3)
b. Other mortgage-backed | | | | |
securities (include CMOs, | | | | |
REMICs, and stripped MBS): | | | | |
(1) Issued or guaranteed | | | | |
by FNMA, FHLMC, or GNMA.. | 1714 0 | 1715 0 | 1716 16,583 | 1717 16,602 | 4.b.(1)
(2) Collateralized by MBS | | | | |
issued or guaranteed by | | | | |
FNMA,FHLMC, or GNMA...... | 1718 0 | 1719 0 | 1731 0 | 1732 0 | 4.b.(2)
(3) All other mortgage- | | | | |
backed securities........ | 1733 0 | 1734 0 | 1735 0 | 1736 0 | 4.b.(3)
5. Other debt securities: | | | | |
a. Other domestic debt | | | | |
securities................... | 1737 0 | 1738 0 | 1739 445 | 1741 459 | 5.a.
b. Foreign debt securities...... | 1742 2,750 | 1743 2,750 | 1744 0 | 1746 0 | 5.b.
6. Equity securities: | | | | |
a. Investments in mutual funds.. | | | 1747 0 | 1748 0 | 6.a.
b. Other equity securities | | | | |
with readily determinable | | | | |
fair values.................. | | | 1749 0 | 1751 0 | 6.b.
c. All other equity | | | | |
securities(1)................ | | | 1752 3,843 | 1753 3,843 | 6.c
7. Total (sum of items 1 through 6) | | | | |
(total of column A must equal | | | | |
Schedule RC, item 2.a) total | | | | |
of column D must equal | | | | |
schedule RC, item 2.b).......... | 1754 35,729 | 1771 37,250 | 1772 626,560 | 1773 622,046 | 7.
------------------------------------------------------------------------------------
<FN>
- ------------
1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c, column D.
</TABLE>
14
<PAGE> 48
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-5
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-B--Continued
<TABLE>
<S> <C> <C> <C>
------
| C412 | <-
--------------------|
Memoranda Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- --------------------------------------------------------------------------------------------------|--------------------|
1. Pledged securities(2)........................................................................ | 0415 631,720 | M.1.
2. Maturity and repricing data for debt securities (2), (3), (4) (excluding those in | |
nonaccrual status): | |
a. Fixed rate debt securities with a remaining maturity of: | |
(1) Three months or less.................................................................. | 0343 2,338 | M.2.a.(1)
(2) Over three months through 12 months................................................... | 0344 6,223 | M.2.a.(2)
(3) Over one year through five years...................................................... | 0345 185,632 | M.2.a.(3)
(4) Over five years....................................................................... | 0346 382,638 | M.2.a.(4)
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1) through 2.a.(4)..... | 0347 576,831 | M.2.a.(5)
b. Floating rate debt securities with a repricing frequency of: | |
(1) Quarterly or more frequently.......................................................... | 4544 75,940 | M.2.b.(1)
(2) Annually or more frequently, but less frequently than quarterly....................... | 4545 565 | 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 596 | M.2.b.(4)
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1) through 2.b.(4).. | 4553 77,101 | 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, colums A and D, minus | |
nonaccrual debt securities included in schedule RC-N, item 9, column C)................... | 0393 653,932 | M.2.c.
3. Not applicable | |
4. Held-to-maturity debt securities restructured and in compliance with modified terms (included | |
in Schedule RC-B, items 3 through 5, column A, above)........................................ | 5365 0 | M.4.
5. Not applicable | |
6. Floating rate debt securities with a remaining maturity of one year or less(2).(4) (included | |
in Memorandum items 2.b.(1) through 2.b.(4) above)........................................... | 5519 39,228 | M.6.
7. Amortized cost of held-co-maturity securities sold or transferred to available-for-sale or | |
trading securities during the calendar year-to-date (report the amortized cost at date of | |
sale or transfer)............................................................................ | 1778 0 | M.7.
8. High-risk mortgage securities (included in the held-to-maturity and available-for-sale | |
accounts in Schedule RC-B, item 4.b): | |
a. Amortized cost............................................................................ | 8780 0 | M.8.a.
b. Fair value................................................................................ | 8781 0 | M.8.b.
9. Structured notes (included in the held-to-maturity and available-for-sale accounts in | |
Schedule RC-B, items 2, 3, and 5): | |
a. Amortized cost............................................................................ | 8782 0 | M.9.a.
b. Fair value................................................................................ | 8783 0 | M.9.b
--------------------
<FN>
- ----------
(2) Includes held-to-maturity securities at amortized cost and available-for-sale securities at fair value.
(3) Exclude equity securities, e.g., investments in mutual funds, Federal Reserve stock, common stock, and preferred stock.
(4) Memorandum items 2 and 6 are not applicable to savings banks that must complete supplemental Schedule RC-J.
</TABLE>
15
<PAGE> 49
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-6
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-C--Loans and Lease Financing Receivables
Part I. Loans and Leases
Do not deduct the allowance for loan and lease losses from amounts
reported in this schedule. Report total loans and leases, net of
unearned income. Exclude assets held for trading.
<TABLE>
<S> <C> <C> <C> <C>
------
C415 <-
-----------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
-----------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
1. Loans secured by real estate............................................. 1410 1,315,343 1.
a. construction and land development..................................... 1415 151,272 1.a.
b. Secured by farmland (including farm residential and other.............
improvements.......................................................... 1420 5,457 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 239,383 1.c.(1)
(2) All other loans secured by 1-4 family residential properties:
(a) Secured by first liens........................................ 5367 211,751 1.e.(2)
(b) Secured by junior liens....................................... 5368 182,617 1.c.(2)
d. Secured by multifamily (5 or more) residential properties............. 1460 23,415 1.d.
e. Secured by nonfarm nonresidential properties.......................... 1460 501,448 1.e.
2. Loans to depository institutions:
a. To commercial banks in the U.S........................................ 1505 2,750 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 2,750 2.1.(2)
b. To other depository institutions in the U.S........................... 1517 1,517 1517 1,517 2.b.
c. To banks in foreign countries......................................... 1510 0 2.c.
(1) To foreign branches of other U.S. banks........................... 1513 0 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 14,027 1590 14,027 3.
4. Commercial and industrial loans:
a. To U.S. addresses (domicile).......................................... 1763 819,276 1763 819,276 4.a.
b. To non-U.S. addressees (domicile)..................................... 1764 0 1764 0 4.b.
5. Acceptances of other banks:
a. Of U.S. banks......................................................... 1756 0 1756 0 5.a.
b. Of foreign banks...................................................... 1757 0 1757 0 5.b.
6. Loans to individuals for household, family, and other personal
expenditures (i.e., consumer loans) (including purchased paper).......... 1975 4,918,304 6.
a. Credit cards and related plans (including check credit and other
revolving credit plans)............................................... 2008 3,962,115 6.a.
b. Other (includes single payment, installment, and all student loans)... 2011 956,189 6.b.
7. Loans to foregin government and official institutions (including
foreign central banks)................................................... 2081 13 2081 13 7.
8. Obligations (other than securities and leases) of states of political
subdivisions in the U.S. (includes nonrated industrial development
obligations)............................................................. 2107 22,773 2107 22,773 8.
9. Other loans.............................................................. 1563 215,481 9.
a. Loans for purchasing or carrying securities (secured and unsecured)... 1545 9,107 9.a.
b. All other loans (exclude consumer loans).............................. 1564 206,374 9.b.
10. Lease financing receivables (net of unearned income)...................... 2165 1,214,732 10.
a. Of U.S. addressees (domicile)........................................ 2162 1,214,732 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 652 2123 652 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 8,523,564 2122 8,523,564 12.
------------------------------------------
</TABLE>
16
<PAGE> 50
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-7
City, State Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-C--Continued
Part I. Continued
<TABLE>
<CAPTION>
<S> <C> <C> <C>
--------------------------------------------
| (Column A) | (Column B) |
| Consolidated | Domestic |
Memoranda | Bank | Offices |
---------------------------------------------
Dollar Amounts in Thousands | RCFD Bill Mil Thou | RCON Bil Mil Thou | M.1.
- ---------------------------------------------------------------------------------------------------------------------------
1. Commercial paper included in Schedule RC-C, part I, above ............... | 1496 0 | 1496 0 |
2. Loans and leases restructured and in compliance with modified terms | | |
(included in Schedule RC-C, part I, above and not reported as past due | | |
or nonaccrual in Schedule RC-N, Memorandum item 1): | | |
a. Loans secured by real estate: | |----------------------
(1) To U.S. addressees (domicile)..................................... | 1687 0 | M.2.a.(1)
(2) To non-U.S. addressees (domicile)................................. | 1689 0 | M.2.a.(2)
b. All other loans and all lease financing receivables (exclude loans to | |
individuals for household, family, and other personal expenditures)... | 8691 0 | M.2.b.
c. Commercial and industrial loans to and lease financing receivables | |
of non-U.S. addressees (domicile) included in Memorandum item 2.b | |
above................................................................. | 8692 0 | M.2.c
3. Maturity and repricing data for loans and leases(1) (excluding those in | |
nonaccrual status): | |
a. Fixed rate loans and leases with a remaining maturity of: | |
(1) Three months or less.............................................. | 0348 145,027 | M.3.a.(1)
(2) Over three months through 12 months............................... | 0349 205,706 | M.3.a.(2)
(3) Over one year through five years.................................. | 0356 1,770,565 | M.3.a.(3)
(4) Over five years................................................... | 0357 633,855 | M.3.a (4)
(5) Total fixed rate loans and leases (sum of Memorandum | |
items 3.a.(2) through 3.a.(4)..................................... | 0358 2,755,153 | M.3.a.(5)
b. Floating rate loans with a repricing frequency of: | |
(1) Quarterly or more frequently...................................... | 4554 4,931,993 | M.3.b(1)
(2) Annually or more frequently, but less frequently than quarterly... | 4555 738,636 | M.3b.(2)
(3) Every five years or more frequently, but less frequently than | |
annually.......................................................... | 4561 60,013 | M.3.b.(3)
(4) Less frequently than every five years............................. | 4564 15,437 | M.3.b.(4)
(5) Total floating rate loans (sum of Memorandum items 3.b.(1) | |
through 3.b.(4)).................................................. | 4567 5,746,079 I 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 1, 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 8,501,232 | M.3.c.
d. Floating rate loans with a remaining maturity of one year or less | |
(included in Memorandum items 3.b.(1) through 3.b.(4) above).......... | A246 1,718,410 | M.3.d.
4. Loans to finance commercial real estate, construction, and land | |
development activities (not secured by real estate) included in | |
Schedule RC-C, part I, items 4 and 9, column A, page RC-6(2)............. | 2746 50,438 | M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, | |
above)................................................................... | 5369 1,000,000 | 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 22,175 | M.6.
---------------------------------------------
<FN>
- --------------
(1) Memorandum item 3 is not applicable to savings banks that must complete supplemental Schedule RC-J.
(2) Exclude loans secured by real estate that are included in Schedule RC-C, part I, item 1, column A.
</TABLE>
17
<PAGE> 51
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-8
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-D--Trading Assets and Liabilities
<TABLE>
Schedule RC-D is to be completed only by banks with $1 billion or more in total assets or with $2 billion or more in par/notional
amount of off-balance sheet derivative contracts (as reported in Schedule RC-L, items 14.a through 14.e, columns A through D).
<S> <C> <C> <C>
-----------
| C420 | <-
--------------------------|
Dollar Amounts in Thousands | Bil Mil Thou |
- -----------------------------------------------------------------------------------------------|--------------------------|
ASSETS | |
1. U.S. Treasury securities in domestic offices.............................................. | RCON 3531 0 | 1.
2. U.S. Government agency and corporation obligations in domestic offices (exclude | |
mortgage-backed securities)............................................................... | RCON 3532 0 | 2.
3. Securities issued by states and political subdivisions in the U.S. in domestic offices.... | RCON 3533 0 | 3.
4. Mortgage-backed securities (MBS) in domestic offices: | |
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA................... | RCON 3534 0 | 4.
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA | |
(include CMOs, REMICs, and stripped MBS)............................................... | RCON 3535 0 | 4.
c. All other mortgage-backed securities................................................... | RCON 3536 0 | 4.
5. Other debt securities in domestic offices................................................. | RCON 3537 0 | 5.
6. Certificates of deposit in domestic offices............................................... | RCON 3538 0 | 6.
7. Commercial paper in domestic offices...................................................... | RCON 3539 0 | 7.
8. Bankers acceptances in domestic offices................................................... | RCON 3540 0 | 8.
9. Other trading assets in domestic offices.................................................. | RCON 3541 0 | 9.
10. Trading assets in foreign offices......................................................... | RCON 3542 0 | 10.
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and | |
equity contracts: | |
a. In domestic offices.................................................................... | RCON 3543 0 | 11.
b. In foreign offices..................................................................... | RCON 3544 0 | 11.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5)......... | RCON 3545 0 | 12.
---------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
--------------------------
LIABILITIES | Bil Mil Thou |
--------------------------
13. Liability for short positions............................................................. | RCFD 3546 0 | 13.
14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and | |
equity contracts.......................................................................... | RCFD 3547 0 | 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item 15.b).... | RCFD 3548 0 | 15.
---------------------------
</TABLE>
18
<PAGE> 52
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-9
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-E--Deposit Liabilities
Part I. Deposits in Domestic Offices
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
------
| C425 | <-
---------------------------------------------------------------|
| Transaction Accounts | Nontransaction |
|---------------------------------------------------------------|
| (Column A) | (Column B) | (Column C) |
| Total transaction | Memo: Total | Total |
| accounts (including | demand deposits | nontransaction |
| total demand | (included in | accounts |
| deposits) | column A) | (including MMDAs) |
|---------------------|--------------------|--------------------|
Dollar Amounts in Thousands | RCON Bil Mil Thou | RCON Bil Mil Thou | RCON Bil Mil Thou |
- -----------------------------------------------------------|---------------------|--------------------|--------------------|
Deposits of: | | | |
1. Individuals, partnerships, and corporations........... | 2201 1,182,321 | 2240 1,116,571 | 2346 2,740,254 | 1.
2. U.S. government....................................... | 2202 7,431 | 2280 7,431 | 2520 0 | 2.
3. States and political and subdivisions in the U.S. .... | 2203 55,632 | 2290 53,068 | 2530 30,482 | 3.
4. Commercial banks in the U.S. ......................... | 2006 486,527 | 2310 486,527 | 2550 15,721 | 4.
5. Other depository institutions in the U.S. ............ | 2207 11,223 | 2312 11,223 | 2349 0 | 5.
6. Banks in foreign countries............................ | 2213 11,507 | 2320 11,507 | 2236 0 | 6.
7. Foreign governments and official institutions | | | |
(including foreign central banks)..................... | 2216 0 | 2300 0 | 2377 0 | 7.
8. Certified and official checks......................... | 2330 19,124 | 2330 19,124 | | 8.
9. Total (sum of items 1 through 8) (sum of columns A | | | |
and C must equal Schedule RC, item 13.a) ............. | 2215 1,773,765 | 2210 1,705,451 | 2385 2,786,457 | 9.
----------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
--------------------
Memorandum Dollar Amounts in Thousands | RCON Bil Mil Thou |
- --------------------------------------------------------------------------------------------------|--------------------|
1. Selected components of total deposits (i.e., sum of item 9, columns A and C): | |
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts....................... | 6835 227,960 | M.1.a.
b. Total brokered deposits................................................................... | 2365 3,283 | 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 227 | 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 2,350 | M.1.c.(2)
d. Maturity data for brokered deposits: | |
(1) Brokered deposits issued in denominations of less than $100,000 with a remaining | |
maturity of one year or less (included in Memorandum item 1.c.(1) above).............. | A243 221 | M.1.d.(1)
(2) Brokered deposits issued in denominations of $100,000 or more with a remaining | |
maturity of one year or less (included in Memorandum item 1.b above).................. | A244 906 | M.1.d.(2)
e. Preferred deposits (uninsured deposits of states and political subdivisions in the U.S. | |
reported in item 3 above which are secured or collateralized as required under state law). | 5590 84,231 | M.1.e.
2. Components of total nontransaction accounts (sum of Memorandum items 2.a. through 2.d | |
must equal item 9, column C above): | |
a. Savings deposits: | |
(1) Money market deposit accounts (MMDAs)................................................. | 6810 1,307,301 | M.1.a.(1)
(2) Other savings deposits (excludes MMDAs)............................................... | 0352 459,528 | M.1.a.(2)
b. Total time deposits of less than $100,000................................................. | 6648 915,613 | M.2.b.
c. Time certificates of deposit of $100,000 or more.......................................... | 6645 104,015 | M.2.c.
d. Open-account time deposits of $100,000 or more............................................ | 6646 0 | M.2.d.
3. All NOW accounts (included in Column A above)................................................ | 2398 68,314 | M.3.
--------------------
4. Not applicable
</TABLE>
19
<PAGE> 53
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-10
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-E--Continued
Memoranda (continued)
Part I. Continued
<TABLE>
<S> <C> <C> <C>
--------------------
Dollar Amounts in Thousands | RCON Bil Mil Thou |
- ------------------------------------------------------------------------------|--------------------|
5. Maturity and repricing data for time deposits of less than $100,000 | |
(sum of Memorandum items 5.a.(1) through 5.b.(3) must equal | |
Memorandum item 2.b above): (1) | |
a. Fixed rate time deposits of less than $100,000 with a remaining | |
maturity of: | |
(1) Three months or less.............................................. | A225 178,380 | M.5.a.(1)
(2) Over three months through 12 months............................... | A226 261,205 | M.5.a.(2)
(3) Over one year..................................................... | A227 476,028 | M.5.a.(3)
b. Floating rate time deposits of less than $100,000 with a repricing | |
frequency of: | |
(1) Quarterly or more frequently...................................... | A228 0 | M.5.b.(1)
(2) Annually or more frequently, but less frequently than quarterly... | A229 0 | M.5.b.(2)
(3) Less frequently than annually..................................... | A230 0 | M.5.b.(3)
c. Floating rate time deposits of less than $100,000 with a remaining | |
maturity of one year or less (included in Memorandum (items 5.b.(1) | |
through 5.b.(3) above)................................................ | A231 0 | M.5.c.
6. Maturity and repricing data for time deposits of $100,000 or more | |
(i.e., time certificates of deposit of $100,000 or more and open-account | |
time deposits of $100,000 or more) | |
(sum of Memorandum items 6.a.(1) through 6.b.(4) must equal the sum of | |
Memorandum items 2.c and 2.d above): (1) | |
a. Fixed rate time deposits of $100,000 or more with a remaining | |
maturity of: | |
(1) Three months or less.............................................. | A232 47,124 | M.6.a.(1)
(2) Over three months through 12 months............................... | A233 29,285 | M.6.a.(2)
(3) Over one year through five years.................................. | A234 11,405 | M.6.a.(3)
(4) Over five years................................................... | A235 16,201 | A.6.a.(4)
b. Floating rate time deposits of $100,000 or more with a repricing | |
frequency of: | |
(1) Quarterly or more frequently...................................... | A236 0 | M.6.b.(1)
(2) Annually or more frequently, but less frequently than quarterly... | A237 0 | M.6.b.(2)
(3) Every five years or more frequently, but less frequently | |
than annually..................................................... | A238 0 | M.6.b.(3)
(4) Less frequently than every five years............................. | A239 0 | M.6.b.(4)
c. Floating rate time deposits of $100,000 or more with a remaining | |
maturity of one year or less (included in Memorandum items 6.b.(1) | |
through 6.b.(4) above)................................................ | A240 0 | M.6.c.
--------------------
<FN>
- ----------
(1) Memorandum items 5 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
</TABLE>
20
<PAGE> 54
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-11
City, State Zip: Columbus, OH 43271-1066
</TABLE>
Schedule RC-E-- Continued
Part II. Deposits in Foreign Offices (including Edge and
Agreement subsidiaries and IBFs)
<TABLE>
<CAPTION>
<S> <C>
------------------------
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
- ---------------------------------------------------------------------------------------------------------------------------
Deposits of: | |
1. Individuals, partnerships, and corporations .................................................. | 2621 614,277 | 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks)................................ | 2623 529,633 | 2.
3. Foreign banks (including U.S. branches and agencies of foreign banks, including their IBFs)... | 2625 0 | 3.
4. Foreign governments and officials 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 1,141,910 | 7.
-------------------------
Memorandum
------------------------
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
- --------------------------------------------------------------------------------------------------------------------------
1. Time deposits with a remaining maturity of one year or less (included in Part II, item 7 above)| A245 0 | M.1.
------------------------
</TABLE>
Schedule RC-F--Other Assets
<TABLE>
<CAPTION>
<S> <C>
___________
| C430 |
----------------------------
Dollar Amounts in Thousands | Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------------------------------
1. Income earned, not collected on loans........................................................ | RCFD 2164 64,750 | 1.
2. Net deferred tax assets (1).................................................................. | RCFD 2149 0 | 2.
3. Excess residential mortgage servicing fees receivable........................................ | RCFD 5371 0 | 3.
4. Other (itemize and describe amounts that exceed 25% of this item)............................ | RCDF 2168 385,703 | 4.
a. | TEXT 3549 | Cash Surrender Value - COLI | RCFD 3549 | 137,741 | | 4.a
b. | TEXT 3550 | | RCFD 3550 | | | 4.b
c. | TEXT 3551 | | RCFD 3551 | | | 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11)............................ | RCFD 2160 450,453 | 5.
----------------------------
----------------------------
Memorandum Dollar Amounts in Thousands | Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------------------------------
1. Deferred tax assets disallowed for regulatory capital purposes................................ | RCFD 5610 0 | M.1.
----------------------------
</TABLE>
Schedule RC-G--Other Liabilities
<TABLE>
<CAPTION>
<S> <C>
-----------
| C435 |
----------------------------
Dollar Amounts in Thousands | Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------------------------------
1. a. Interest accrued and unpaid on deposits in domestic offices(2)............................. | RCON 3645 22,566 | 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable).................. | RCFD 3646 20,007 | 1.b.
2. Net deferred tax liabilities(1)............................................................... | RCFD 3049 101,585 | 2.
3. Minority interest in consolidated subsidiaries................................................ | RCFD 3000 0 | 3.
4. Other (itemize and describe amounts that exceed 25% of this item)............................. | RCFD 2938 24,276 | 4.
a. | TEXT 3552 | Deferred Pass Received on Swaps | RCFD 3552 | 21,241 | | 4.a
b. | TEXT 3553 | | RCFD 3553 | | | 4.b.
c. | TEXT 3554 | | RCFD 3554 | | | 4.c.
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20)............................ | RCFD 2930 168,434 | 5.
----------------------------
<FN>
- -----------
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) For savings banks, include "dividends" accrued and unpaid on deposits.
</TABLE>
21
<PAGE> 55
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-12
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-H--Selected Balance Sheet Items for Domestic Offices
<TABLE>
<S> <C> <C> <C>
-----------
| C440 | <-
--------------------------|
| Domestic Offices |
|--------------------------|
Dollar Amounts in Thousands | RCON Bil Mil Thou |
- -----------------------------------------------------------------------------------------------|--------------------------|
1. Customers' liability to this bank on acceptances outstanding.............................. | 2155 5,730 | 1.
2. Bank's liability on acceptances executed and outstanding.................................. | 2920 5,730 | 2.
3. Federal funds sold and securities purchased under agreements to resell.................... | 1350 340,096 | 3.
4. Federal funds purchased and securities sold under agreements to repurchase................ | 2800 2,063,655 | 4.
5. Other borrowed money...................................................................... | 3190 1,745,311 | 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 1,141,708 | 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement subsidiaries, | |
and IBFs.................................................................................. | 2192 10,671,759 | 8.
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement subsidiaries, | |
and IBFs.................................................................................. | 3129 8,854,642 | 9.
---------------------------
</TABLE>
Items 10-17 include held-to-maturity and available-for-sale securities in
domestic offices.
<TABLE>
<S> <C> <C> <C>
--------------------------
| RCON Bil Mil Thou |
--------------------------
10. U.S. Treasury securities.................................................................. | 1779 354,164 | 10.
11. U.S. Government agency and corporation obligations (exclude mortgage-backed securities) | 1785 87,318 | 11.
12. Securities issued by states and political subdivisions in the U.S. ....................... | 1786 33,360 | 12.
13. Mortgage-backed securities (MBS): | |
a. Pass-through securities: | |
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA....................................... | 1787 153,083 | 13.a.
(2) Other pass-through securities...................................................... | 1869 6,196 | 13.a.
b. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS): | |
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA....................................... | 1877 16,602 | 13.b.
(2) All other mortgage-backed securities............................................... | 2253 0 | 13.b.
14. Other domestic debt securities............................................................ | 3159 459 | 14.
15. Foreign debt securities................................................................... | 3160 0 | 15.
16. Equity securities: | |
a. Investments in mutual funds............................................................ | 3161 0 | 16.a.
b. Other equity securities with readily determinable fair values.......................... | 3162 0 | 16.b.
c. All other equity securities............................................................ | 3169 3,843 | 16.c.
17. Total held-to-maturity and available-for-sale securities (sum of items 10 through 16)..... | 3170 655,025 | 17.
---------------------------
</TABLE>
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
<TABLE>
<S> <C> <C> <C>
--------------------------
Dollar Amounts in Thousands | RCON Bil Mil Thou |
- ----------------------------------------------------------------------------------------------- --------------------------
EITHER | |
1. Net due from the IBF of the domestic offices of the reporting bank......................... | 3051 N/A | M.1.
OR | |
2. Net due to the IBF of the domestic offices of the reporting bank........................... | 3059 N/A | M.2.
---------------------------
</TABLE>
22
<PAGE> 56
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-13
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-I--Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices.
<TABLE>
<S> <C> <C> <C>
-----------
| C445 | <-
--------------------------|
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
- -----------------------------------------------------------------------------------------------|--------------------------|
1. Total IBF assets of the consolidated bank (component of Schedule RC, item 12)............. | 2133 N/A | 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, part I | |
item 12, column A)........................................................................ | 2076 N/A | 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, item 4, | |
column A)................................................................................. | 2077 N/A | 3.
4. Total IBF liabilities (component of Schedule RC, item 21)................................. | 2898 N/A | 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of Schedule RC-E, | |
part II, items 2 and 3)................................................................... | 2379 N/A | 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5, and 6). | 2381 N/A | 6.
---------------------------
</TABLE>
Schedule RC-K--Quarterly Averages(1)
<TABLE>
<S> <C> <C> <C>
-----------
| C455 | <-
--------------------------|
Dollar Amounts in Thousands | Bil Mil Thou |
- -----------------------------------------------------------------------------------------------|--------------------------|
ASSETS | |
1. Interest-bearing balances due from depository institutions................................ | RCFD 3381 1,449 | 1.
2. U.S. Treasury securities and U.S. Government agency and corporation obligations(2)........ | RCFD 3382 462,100 | 2.
3. Securities issued by states and political subdivisions in the U.S.(2)..................... | RCFD 3383 2,829 | 3.
4. a. Other debt securities(2)............................................................... | RCFD 3647 6,222 | 4.a.
b. Equity Securities(3) (includes investments in mutual funds and Federal Reserve stock).. | RCFD 3648 3,844 | 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 227,861 | 5.
6. Loans: | |
a. Loans in domestic offices: | |
(1) Total loans........................................................................ | RCON 3360 6,947,912 | 6.a.(1)
(2) Loans secured by real estate....................................................... | RCON 3385 1,334,155 | 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers................ | RCON 3386 12,435 | 6.a.(3)
(4) Commercial and industrial loans.................................................... | RCON 3387 903,137 | 6.a.(4)
(5) Loans to individuals for household, family, and other personal expenditures........ | RCON 3388 4,463,369 | 6.a.(5)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs.............. | RCFN 3360 0 | 6.b.
7. Trading assets............................................................................ | RCFD 3401 0 | 7.
8. Lease financing receivables (net of unearned income)...................................... | RCFD 3484 1,112,431 | 8.
9. Total assets(4)........................................................................... | RCFD 3368 9,803,098 | 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 55,729 | 10.
11. Nontransaction accounts in domestic offices: | |
a. Money market deposit accounts (MMDAs).................................................. | RCON 3486 1,307,151 | 11.a.
b. Other savings deposits................................................................. | RCON 3487 765,006 | 11.b.
c. Time certificates of deposit of $100,000 or more....................................... | RCON 3345 228,172 | 11.c.
d. All other time deposits................................................................ | RCON 3469 910,855 | 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement subsidiaries, and IBFs... | RCFN 3404 785,357 | 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 2,060,984 | 13.
14. Other borrowed money...................................................................... | RCFD 3355 1,276,976 | 14.
---------------------------
<FN>
- ------------
(1) For all items, banks have the option of reporting either (1) an average of
daily figures for the quarter, or (2) an average of weekly figures
(i.e., the Wednesday of each week of the quarter).
(2) Quarterly averages for all debt securities should be based on amortized
cost.
(3) Quarterly averages for all equity securities should be based on historical
cost.
(4) The quarterly average for total assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
</TABLE>
23
<PAGE> 57
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-14
City, State Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
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>
<S> <C> <C>
----------
| C460 | <-
----------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
---------------------------------------------------------------------------------------------------------------------------
1. Unused commitments: | |
a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., home equity | |
lines......................................................................................... | 3814 345,337 | 1.a.
b. Credit card lines............................................................................. | 3815 18,605,259 | 1.b.
c. Commercial real estate, construction, and land development: | |
(1) Commitments to fund loans secured by real estate.......................................... | 3816 87,135 | 1.c.(1)
(2) Commitments to fund loans not secured by real estate...................................... | 6550 20,573 | 1.c.(2)
d. Securities underwriting....................................................................... | 3817 0 | 1.d.
e. Other unused commitments...................................................................... | 3818 2,095,009 | 1.e.
2. Financial standby letters of credit and foreign office guarantees................................ | 3819 511,988 | 2.
a. Amount of financial standby letters of credit conveyed to others | RCFD 3820 | 173,376 | | 2.a.
3. Performance standby letters of credit and foreign office guarantees.............................. | 3821 112,524 | 3.
a. Amount of performance standby letters of credit conveyed to others | RCFD 3822 | 42,516 | | 3.a.
4. Commercial and similar letters of credit......................................................... | 3411 47,722 | 4.
5. Participations in acceptances (as described in the instructions) conveyed to others by the | |
reporting bank................................................................................... | 3428 0 | 5.
6. Participations in acceptances (as described in the instructions) acquired by the reporting....... | |
(nonaccepting) bank.............................................................................. | 3429 0 | 6.
7. Securities borrowed.............................................................................. | 3432 0 | 7.
8. Securities lent (including customers' securities lent where the customer is indemnified against | |
loss by the reporting bank)...................................................................... | 3433 0 | 8.
9. Loans transferred (i.e., sold or swapped) with recourse that have been treated as sold for | |
Call Report purposes: | |
a. FNMA and FHLMC residential mortgage loan pools: | |
(1) Outstanding principal balance of mortgages transferred as of the report date.............. | 3650 0 | 9.a.(1)
(2) Amount of recourse exposure on these mortgages as of the report date...................... | 3651 0 | 9.a.(2)
b. Private (nongovernment-issued or -guaranteed) residential mortgage loan pools: |
(1) Outstanding principal balance of mortgages transferred as of the report date.............. | 3652 0 | 9.b.(1)
(2) Amount of recourse exposure on these mortgages as of the report date...................... | 3653 0 | 9.b.(2)
c. Farmer Mac agricultural mortgage loan pools: | |
(1) Outstanding principal balance of mortgages transferred as of the report date.............. | 3654 0 | 9.c.(1)
(2) Amount of recourse exposure on these mortgages as of the report date...................... | 3655 0 | 9.c.(2)
d. Small business obligations transferred with recourse under Section 208 of the | |
Riegle Community Development and Regulatory Improvement Act of 1994: | |
(1) Outstanding principal balance of small business obligations transferred | |
as of the report date..................................................................... | A249 0 | 9.d.(1)
(2) Amount of retained recourse on these obligations as of the report date.................... | A250 0 | 9.d.(2)
10. When-issued securities: | |
a. Gross commitments to purchase................................................................. | 3434 0 | 10.a.
b. Gross commitments to sell..................................................................... | 3435 0 | 10.b.
11. Spot foreign exchange contracts.................................................................. | 8765 10,493 | 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet derivatives) (itemize and | |
describe each component of this item over 25% of Schedule RC, item 28, "Total equity capital") | 3430 0 | 12.
----------------------------------------------------------------------------------------------| |
a. | TEXT 3555 |-------------------------------------------------------| RCFD 3555 | | | 12.a.
b. | TEXT 3556 |-------------------------------------------------------| RCFD 3556 | | | 12.b.
c. | TEXT 3557 |-------------------------------------------------------| RCFD 3557 | | | 12.c.
d. | TEXT 3558 |-------------------------------------------------------| RCFD 3558 | | | 12.d.
--------------------------------------------------------------------------------------------------------------------
</TABLE>
24
<PAGE> 58
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-15
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-L--Continued
<TABLE>
<S> <C> <C> <C>
--------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
13. All other off-balance sheet assets (exclude off-balance sheet derivatives) (itemize and describe | |
each component of this item over 25% of Schedule RC, item 28, "Total equity capital")............ | 5591 141,011 | 13.
------------ ---------------------------------------------------
a. | TEXT 5592 | | RCFD 5592 | | | 13.a.
b. | TEXT 5593 | | RCFD 5593 | | | 13.b.
c. | TEXT 5594 | | RCFD 5594 | | | 13.c.
d. | TEXT 5595 | | RCFD 5595 | | | 13.d.
--------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
--------
| C461 | <-
------------------------------------------------------------------------------------|
| (Column A) | (Column B) | (Column C) | (Column D) |
Dollar Amounts in Thousands | Interest Rate | Foreign Exchange | Equity Derivative | Commodity and |
-----------------------------------| Contracts | Contracts | Contracts | Other Contracts |
| Off-balance Sheet Derivatives |--------------------|---------------------|--------------------|--------------------|
| Position Indicators | Tril Bil Mil Thou | Tril Bil Mil Thou | Tril Bil Mil Thou | Tril Bil Mil Thou |
- ------------------------------------|--------------------|---------------------|--------------------|--------------------|
14. Gross amounts (e.g., notional | | | | |
amounts) (for each column, | | | | |
sum of items 14.a through | | | | |
14.e must equal sum of items | | | | |
15, 16.a, and 16.b): | | | | |
a. Futures contracts........... | 0 | 0 | 0 | 0 | 14.a.
| RCFD 8693 | RCFD 8694 | RCFD 8695 | RCFD 8696 |
b. Forward contracts........... | 1,400,000 | 45,511 | 0 | 0 | 14.b.
| RCFD 8697 | RCFD 8698 | RCFD 8699 | RCFD 8700 |
c. Exchange-traded option | | | | |
contracts: | | | | |
(1) Written options......... | 0 | 0 | 0 | 0 | 14.c.(1)
| RCFD 8701 | RCFD 8702 | RCFD 8703 | RCFD 8704 |
(2) Purchased options....... | 0 | 0 | 0 | 0 | 14.c.(2)
| RCFD 8705 | RCFD 8706 | RCFD 8707 | RCFD 8708 |
d. Over-the-counter option | | | | |
contracts: | | | | |
(1) Written options......... | 755,397 | 0 | 0 | 0 | 14.d.(1)
| RCFD 8709 | RCFD 8710 | RCFD 8711 | RCFD 8712 |
(2) Purchased options....... | 930,397 | 0 | 0 | 0 | 14.d.(2)
| RCFD 8713 | RCFD 8714 | RCFD 8715 | RCFD 8716 |
e. Swaps....................... | 17,113,573 | 0 | 0 | 0 | 14.e.
| RCFD 3450 | RCFD 3826 | RCFD 8719 | RCFD 8720 |
15. Total gross notional amount of | | | | |
derivative contracts held | | | | |
for trading.................... | 400,000 | 0 | 0 | 0 | 15.
16. Total gross notional amount of | RCFD A126 | RCFD A127 | RCFD 8723 | RCFD 8724 |
derivative contracts held for | | | | |
purposes other than trading: | | | | |
a. Contracts marked to market.. | 174,737 | 45,511 | 0 | 0 | 16.a.
| RCFD 8725 | RCFD 8726 | RCFD 8727 | RCFD 8728 |
b. Contracts not marked to | | | | |
market...................... | 19,624,630 | 0 | 0 | 0 | 16.b.
| RCFD 8729 | RCFD 8730 | RCFD 8731 | RCFD 8732 |
------------------------------------------------------------------------------------
</TABLE>
25
<PAGE> 59
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-16
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-L--Continued
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------
| (Column A) | (Column B) | (Column C) | (Column D) |
Dollar Amounts in Thousands | Interest Rate | Foreign Exchange | Equity Derivative | Commodity and |
-----------------------------------| Contracts | Contracts | Contracts | Other Contracts |
| Off-balance Sheet Derivatives |--------------------|---------------------|--------------------|--------------------|
| Position Indicators | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
- ------------------------------------|--------------------|---------------------|--------------------|--------------------|
17. Gross fair values of | | | | |
derivative contracts: | | | | |
a. Contracts held for trading: | | | | |
(1) Gross positive | | | | |
fair value.............. | 8733 400,000 | 8734 0 | 8735 0 | 8736 0 | 17.a.(1)
(2) Gross negative | | | | |
fair value.............. | 8737 0 | 8738 0 | 8739 0 | 8740 0 | 17.a.(2)
b. Contracts held for purposes | | | | |
other than trading that | | | | |
are marked to market: | | | | |
(1) Gross positive | | | | |
fair value.............. | 8741 817 | 8742 884 | 8748 0 | 8744 0 | 17.b.(1)
(2) Gross negative | | | | |
fair value.............. | 8745 1,586 | 8746 792 | 8747 0 | 8748 0 | 17.b.(2)
c. Contracts held for purposes | | | | |
other than trading that | | | | |
are not marked to market: | | | | |
(1) Gross positive | | | | |
fair value.............. | 8749 50,923 | 8750 0 | 8751 0 | 8752 0 | 17.c.(1)
(2) Gross negative | | | | |
fair value.............. | 8753 48,262 | 8754 0 | 8755 0 | 8756 0 | 17.c.(2)
-------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
--------------------
Memoranda Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------|--------------------|
1.-2. Not applicable | |
3. Unused commitments with an original maturity exceeding one year that are reported in | |
Schedule RC-L, items 1.a through 1.e, above (report only the unused portions of commitments | |
that are fee paid or otherwise legally binding).................................................. | 3833 1,532,774 | M.3.
a. Participations in commitments with an original maturity | |
exceeding one year conveyed to others............................| RCFD 3834 | 229,509 | | 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 732 | M.4.
5. Installment loans to individuals for household, family, and other personal expenditures that | |
have been securitized and sold without recourse (with servicing retained), amounts | |
outstanding by type of loan: | |
a. Loans to purchase private passenger automobiles (to be completed for the | |
September report only)........................................................................ | 2741 N/A | M.5.a.
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY).................................... | 2742 3,351,121 | M.5.b.
c. All other consumer installment credit (including mobile home loans) (to be completed |
for the September report only)................................................................ | 2743 N/A | M.5.c.
--------------------
</TABLE>
26
<PAGE> 60
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-17
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-M--Memoranda
<TABLE>
<S> <C> <C> <C>
--------
| C463 |<-
--------------------|
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- ----------------------------------------------------------------------------------------------|--------------------|
1. Extensions of credit by the reporting bank to its executive officers, directors, principal | |
shareholders, and their related interests as of the report date: | |
a. Aggregate amount of all extensions of credit to all executive officers, directors, | |
principal shareholders, and their related interests.................................... | 6164 258,466 | 1.a.
b. Number of executive officers, directors, and principal shareholders to whom the amount | |
of all extensions of credit by the reporting bank (including extensions of credit to
related interests) equals or exceeds the lesser of $500,000 or 5 percent Number | |
of total capital as defined for this purpose in agency regulations. | RCFD 6165 | 3 | | 1.b.
2. Federal funds sold and securities purchased under agreements to resell with U.S. branches | |
and agencies of foreign banks(1) (included in Schedule RC, items 3.a and 3.b)............. | 3405 0 | 2.
3. Not applicable. | |
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for others | |
(include both retained servicing and purchased servicing): | |
a. Mortgages serviced under a GNMA contract............................................... | 5500 0 | 4.a.
b. Mortgages serviced under a FHLMC contract: | |
(1) Serviced with recourse to servicer................................................. | 5501 0 | 4.b.(1)
(2) Serviced without recourse to servicer.............................................. | 5502 0 | 4.b.(2)
c. Mortgages serviced under a FNMA contract: | |
(1) Serviced under a regular option contract........................................... | 5503 0 | 4.c.(1)
(2) Serviced under a special option contract........................................... | 5504 0 | 4.c.(2)
d. Mortgages serviced under other servicing contracts..................................... | 5505 0 | 4.d.
5. To be completed only by banks with $1 billion or more in total assets: | |
Customers' liability to this bank on acceptances outstanding (sum of items 5.a and 5.b must| |
equal Schedule RC, item 9): | |
a. U.S. addressees (domicile)............................................................. | 2103 5,730 | 5.a.
b. Non-U.S. addressees (domicile)......................................................... | 2104 0 | 5.b.
6. Intangible assets: | |
a. Mortgage servicing rights.............................................................. | 3164 0 | 6.a.
b. Other identifiable intangible assets: | |
(1) Purchased credit card relationships................................................ | 5506 20,100 | 6.b.(1)
(2) All other identifiable intangible assets........................................... | 5507 2,327 | 6.b.(2)
c. Goodwill............................................................................... | 3163 11,684 | 6.c.
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10)................. | 2143 34,111 | 6.d.
e. Amount of intangible assets (included in item 6.b.(2) above) that have been | |
grandfathered or are otherwise qualifying for regulatory capital purposes.............. | 6442 0 | 6.e.
7. Mandatory convertible debt, net of common or perpetual preferred stock dedicated to | |
redeem the debt........................................................................... | 3295 0 | 7.
--------------------
</TABLE>
- ----------
(1) Do not report federal funds sold and securities purchased under agreements
to resell with other commercial banks in the U.S. in this item.
27
<PAGE> 61
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-18
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-M--Continued
<TABLE>
<S> <C> <C> <C>
-------------------------
Dollar Amounts in Thousands | Bil Mil Thou |
- -------------------------------------------------------------------------------------------|-------------------------|
8. a. Other real estate owned: | |
(1) Direct and indirect investments in real estate ventures........................ | RCFD 5372 0 | 8.a.(1)
(2) All other real estate owned: | |
(a) Construction and land development in domestic offices...................... | RCON 5508 0 | 8.a.(2)
(b) Farmland in domestic offices............................................... | RCON 5509 0 | 8.a.(2)
(c) 1-4 family residential properties in domestic offices...................... | RCON 5510 272 | 8.a.(2)
(d) Multifamily (5 or more) residential properties in domestic offices......... | RCON 5511 0 | 8.a.(2)
(e) Nonfarm nonresidential properties in domestic offices...................... | RCON 5512 6,271 | 8.a.(2)
(f) In foreign offices......................................................... | RCFN 5513 0 | 8.a.(2)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7)...... | RCFD 2150 6,543 | 8.a.(3)
b. Investments in unconsolidated subsidiaries and associated companies: | |
(1) Direct and indirect investments in real estate ventures........................ | RCFD 5374 0 | 8.b.(1)
(2) All other investments in unconsolidated subsidiaries and associated companies.. | RCFD 5375 2,436 | 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8)...... | RCFD 2130 2,436 | 8.b.(3)
c. Total assets of unconsolidated subsidiaries and associated companies............... | RCFD 5376 47,831 | 8.c.
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC, | |
item 23, "Perpetual preferred stock and related surplus".............................. | RCFD 3778 0 | 9.
10. Mutual fund and annuity sales in domestic offices during the quarter (include | |
proprietary, private label, and third party products): | |
a. Money market funds................................................................. | RCON 6441 12,613 | 10.a.
b. Equity securities funds............................................................ | RCON 8427 11,817 | 10.b.
c. Debt securities funds.............................................................. | RCON 8428 3,814 | 10.c.
d. Other mutual funds................................................................. | RCON 8429 0 | 10.d.
e. Annuities.......................................................................... | RCON 8430 42,625 | 10.e.
f. Sales of proprietary mutual funds and annuities (included in items 10.a through | |
10.e above)........................................................................ | RCON 8784 27,619 | 10.f.
-------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
--------------------
Memorandum Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- -----------------------------------------------------------------------------------------------|--------------------|
1. Interbank holdings of capital instruments (to be completed for the December report only): | |
a. Reciprocal holdings of banking organizations' capital instruments...................... | 3836 0 | M.1.a.
b. Nonreciprocal holdings of banking organizations' capital instruments................... | 3837 0 | M.1.b.
--------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
28
<PAGE> 62
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-19
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-N--Past Due and Nonaccural Loans, Leases,
and Other Assets
The FFIEC regards the information reported in
all of Memorandum item 1, in items 1 through 10,
column A, and in Memorandum items 2 through 4,
column A, as confidential.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
------
| 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 |
- -----------------------------------------------------------|---------------------|--------------------|--------------------|
1. Loans secured by real estate: | | | |
a. To U.S. addressees (domicile)...................... | 1245 | 1246 4,589 | 1247 11,931 | 1.a,
b. To non-U.S. addressees (domicile).................. | 1248 | 1249 0 | 1250 0 | 1.b.
2. Loans to depository institutions and acceptances | | | |
of other banks: | | | |
a. To U.S. banks and other U.S. depository | | | |
institutions....................................... | 5377 | 5378 0 | 5379 0 | 2.a.
b. To foreign banks................................... | 5380 | 5381 0 | 5382 0 | 2.b.
3. Loans to finance agricultural production and | | | |
other loans to farmers................................ | 1594 | 1597 0 | 1583 42 | 3.
4. Commercial and industrial loans: | | | |
a. To U.S. addressees (domicile)...................... | 1251 | 1252 11,185 | 1253 4,651 | 4.a.
b. To non-U.S. addressees (domicile).................. | 1254 | 1255 0 | 1256 0 | 4.b.
5. Loans to individuals for household, family, and | | | |
other personal expenditures: | | | |
a. Credit cards and related plans..................... | 5383 | 5384 89,969 | 5385 0 | 5.a.
b. Other (includes single payment, installment, | | | |
and all student loans.............................. | 5386 | 5387 9,147 | 5388 3,910 | 5.b.
6. Loans to foreign governments and official | | | |
institutions....................................... | 5389 | 5390 0 | 5391 0 | 6.
7. All other loans....................................... | 5459 | 5460 280 | 5461 66 | 7.
8. Lease financing receivables: | | | |
a. Of U.S. addressees (domicile)...................... | 1257 | 1258 0 | 1259 2,384 | 8.a.
b. Of non-U.S. addressees (domicile).................. | 1271 | 1272 0 | 1791 0 | 8.b.
9. Debt securities and other assets (exclude other | | | |
real estate owned and other repossessed assets........ | 3505 | 3506 0 | 3507 0 | 9.
-----------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and
leases. Report in item 10 below certain guaranteed loans and leases that have already been included in the amounts reported in
items 1 through 8.
--------------------- -------------------- --------------------
| RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
10. Loans and leases reported in items 1 |---------------------|--------------------|--------------------|
through 8 above which are wholly or partially | | | |
guaranteed by the U.S. Government.................... | 5612 | 5613 5,277 | 5614 1,023 | 10.
a. Guaranteed portion of loans and leases | | | |
included in item 10 above......................... | 5615 | 5616 5,277 | 5617 602 | 10.a.
----------------------------------------------------------------
</TABLE>
29
<PAGE> 63
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-20
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-N--Continued
<TABLE>
<S> <C> <C> <C> <C>
--------------
| C473 |<-
------------------------------------------------------------
| (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 | |
Memoranda --------------------|---------------------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
- ---------------------------------------------------------------------------------|-------------------|-------------------|
1. Restructured loans and leases included in | | | |
Schedule RC-N, items 1 through 8, above (and not | | | |
reported in Schedule RC-C, part I, Memorandum | | | |
item 2)................................................. | 1658 | 1659 0 | 1661 0 | M.1.
2. Loans to finance commercial real estate, | | | |
construction, and land development activities | | | |
(not secured by real estate) included in | | | |
Schedule RC-N, items 4 and 7, above..................... | 6558 | 6559 185 | 6560 0 | M.2.
--------------------------------------------------------------
| RCON Bil Mil Thou | RCON Bil Mil Thou | RCON Bil Mil Thou |
--------------------------------------------------------------
3. Loans secured by real estate in domestic offices | | | |
(included in Schedule RC-N, item 1, above): | | | |
a. Construction and land development.................... | 2759 | 2769 1,447 | 3492 2,407 | M.3.a.
b. Secured by farmland.................................. | 3493 | 3494 0 | 3495 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................... | 5398 | 5399 1,183 | 5400 0 | M.3.c.(1)
(2) All other loans secured by 1-4 family | | | |
residential properties........................... | 5401 | 5402 1,662 | 5403 6,183 | M.3.c.(2)
d. Secured by multifamily (5 or more) residential | | | |
properties........................................... | 3499 | 3500 69 | 3501 0 | M.3.d.
e. Secured by nonfarm nonresidential properties......... | 3502 | 3503 228 | 3504 3,341 | M.3.e.
--------------------------------------------------------------
------------------------------------------
| (Column A) | (Column B) |
| Past due 30 | Past due 90 |
| through 89 days | days or more |
------------------------------------------
4. Interest rate, foreign exchange rate, and other | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
commodity and equity contracts: |--------------------|-------------------|
a. Book value of amounts carried as assets............. | 3522 | 3528 0 | M.4.a.
b. Replacement cost of contracts with a | | |
positive replacement cost........................... | 3529 | 3530 0 | M.4.b.
-------------------- ---------------------
</TABLE>
30
<PAGE> 64
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-21
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-O--Other Data for Deposit Insurance Assessments
<TABLE>
<S> <C> <C> <C>
--------
| C475 |<-
--------------------|
Dollar Amounts in Thousands | RCON Bil Mil Thou |
- -----------------------------------------------------------------------------------------------|--------------------|
1. Unposted debits (see instructions): | |
a. Actual amount of all unposted debits................................................... | 0030 0 | 1.a.
OR | |
b. Separate amount of unposted debits: | |
(1) Actual amount of unposted debits to demand deposits................................ | 0031 N/A | 1.b.(1)
(2) Actual amount of unposted debits to time and savings deposits(1)................... | 0032 N/A | 1.b.(2)
2. Unposted credits (see instructions): | |
a. Actual amount of all unposted credits.................................................. | 3510 0 | 2.a.
OR | |
b. Separate amount of unposted credits: | |
(1) Actual amount of unposted credits to demand deposits............................... | 3512 N/A | 2.b.(1)
(2) Actual amount of unposted credits to time and savings deposits(1).................. | 3514 N/A | 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 14,576 | 4.a.
b. Time and savings deposits(1) of consolidated subsidiaries.............................. | 2351 10,319 | 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries................... | 5514 0 | 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions: | |
a. Demand deposits in insured branches (included in Schedule RC-E, Part II)............... | 2229 0 | 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part II).. | 2383 0 | 5.b.
c. Interest accrued and unpaid on deposits in insured branches | |
(included in Schedule RC-G, item 1.b).................................................. | 5515 0 | 5.c.
--------------------
--------------------
Item 6 is not applicable to state nonmember banks that have not been authorized by the | |
Federal Reserve to act as pass-through correspondents. | |
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on | |
behalf of its respondent depository institutions that are also reflected as deposit | |
liabilities of the reporting bank: | |
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, item 4 or 5, | |
column B).............................................................................. | 2314 0 | 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule RC-E, Part I, | |
item 4 or 5, column A or C, but not column B).......................................... | 2315 0 | 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1) | |
a. Unamortized premiums................................................................... | 5516 0 | 7.a.
b. Unamortized discounts.................................................................. | 5517 0 | 7.b.
--------------------
- -------------------------------------------------------------------------------------------------------------------------------
| -------------------- |
| 6. To be completed by banks with "Oakar deposits." | | |
| Total "Adjusted Attributable Deposits" of all institutions acquired under Section 5(d)(3) | | |
| of the Federal Deposit Insurance Act (from most recent FDIC Oakar Transaction | | |
| Worksheet(s))............................................................................. | 5518 N/A | 8. |
| -------------------- |
- -------------------------------------------------------------------------------------------------------------------------------
--------------------
9. Deposits in lifeline accounts............................................................. | 5596 | 9.
10. Benefit-responsive "Depositary Institution Investment Contracts" included in total | |
deposits in domestic offices)............................................................. | 8432 0 | 10.
--------------------
<FN>
- ----------
(1) For FDIC insurance assessment purposes, "time and savings deposits" consists
of nontransaction accounts and all transaction accounts other than demand
deposits.
</TABLE>
31
<PAGE> 65
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-22
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-O--Continued
<TABLE>
<S> <C> <C> <C>
--------------------|
Dollar Amounts in Thousands | RCON Bil Mil Thou |
- -----------------------------------------------------------------------------------------------|--------------------|
11. Adjustments to demand deposits in domestic offices reported in Schedule RC-E for | |
certain reciprocal demand balances: | |
a. Amount by which demand deposits would be reduced if reciprocal demand balances | |
between the reporting bank and savings associations were reported on a net basis | |
rather than a gross basis in Schedule RC-E............................................. | 8785 0 | 11.a.
b. Amount by which demand deposits would be increased if reciprocal demand balances | |
between the reporting bank and U.S. branches and agencies of foreign banks were | |
reported on a gross basis rather than a net basis in Schedule RC-E..................... | A181 0 | 11.b.
c. Amount by which demand deposits would be reduced if cash items in process of | |
collection were included in the calculation of net reciprocal demand balances between | |
the reporting bank and the domestic offices of U.S. banks and savings associations | |
in Schedule RC-E....................................................................... | A182 0 | 11.c.
--------------------
Memoranda (to be completed each quarter except as noted) --------------------|
Dollar Amounts in Thousands | RCON Bil Mil Thou |
- -----------------------------------------------------------------------------------------------|--------------------|
1. Total deposits in domestic offices of the bank (sum of Memorandum items 1.a.(1) and | |
1.b.(1) must equal Schedule RC, item 13.a): | |
a. Deposit accounts of $100,000 or less: | |
(1) Amount of deposit accounts of $100,000 or less..................................... | 2702 2,409,318 | 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 | N/A | | M.1.a.(2)
b. Deposit accounts of more than $100,000: | |
(1) Amount of deposit accounts of more than $100,000................................... | 2710 2,150,904 | M.1.b.(1)
Number | |
(2) Number of deposit accounts of more than $100,000....... | RCON 2722 | 4,001 | | 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 YES NO
procedure 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
--------------------
- -------------------------------------------------------------------------------------------------------------------------------
Person to whom questions about the Reports of Condition and Income should be directed: | C477 |<-
-------
John J. Dible, Sr. Regulatory Analyst (614) 248-8592
- ----------------------------------------------------------------------------- -----------------------------------------------
Name and Title (TEXT 8901) Area code/phone number/extension (TEXT 8902)
</TABLE>
32
<PAGE> 66
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-23
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-R--Regulatory Capital
<TABLE>
This schedule must be completed by all banks as follows: Banks that reported total assets of $1 billion or more in Schedule RC, item
12, for June 30, 1995, must complete items 2 through 9 and Memoranda items 1 and 2. Banks with assets of less than $1 billion must
complete items 1 through 3 below or Schedule RC-R in its entirety, depending on their response to item 1 below.
<S> <C> <C>
---------------
| C480 |<-
1. Test for determining the extent to which Schedule RC-R must be completed. To be ---------------------
completed only by banks with total assets of less than $1 billion. Indicate in the | YES NO |
appropriate box at the right whether the bank has total capital greater than or ---------------------------------
equal to eight percent of adjusted total assets....................................... | RCFD 6056 | | | | 1.
---------------------------------
For purposes of this test, adjusted total assets equals total assets less cash, U.S. Treasuries, U.S. Government
agency obligations, and 80 percent of U.S. Government-sponsored agency obligations plus the allowance for
loan and lease losses and selected off-balance sheet items as reported on Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to complete items 2 and 3 below. If the box marked
NO has been checked, the bank must complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual risk-based capital ratio is less than
eight percent or that the bank is not in compliance with the risk-based capital guidelines.
<CAPTION>
------------------------------------------------------------------
| NOTE: All banks are required to complete items 2 and 3 below. |
| See optional worksheet for items 3.a through 3.f. | ---------------------------------------------
------------------------------------------------------------------ | (Column A) | (Column B) |
Dollar Amounts in Thousands | Subordinated Debt (1) | Other |
- ----------------------------------------------------------------------------- | and Intermediate | Limited-Life |
| Term Preferred Stock |Capital Instruments|
2. Subordinated debt(1) and other limited-life capital instruments (original -----------------------|--------------------
weighted average maturity of at least five years) with a remaining | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
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 264,328 | 3791 0 | 2.f.
--------------------------------------------
3. Amounts used in calculating regulatory capital ratios (report amounts | |
determined by the bank for its own internal regulatory capital analyses | |
consistent with applicable capital standards): ---------------------
| RCFD Bil Mil Thou |
---------------------
a. Tier 1 capital.................................................................................. | 8274 664,361 | 3.a.
b. Tier 2 capital.................................................................................. | 8275 390,567 | 3.b.
c. Total risk-based capital........................................................................ | 3792 1,054,928 | 3.c.
d. Excess allowance for loan and lease losses...................................................... | A222 120,355 | 3.d.
e. Risk-weighted assets (net of all deductions, including excess allowance)........................ | A223 9,970,758 | 3.e.
f. "Average total assets" (net of all assets deducted from Tier 1 capital) (2)..................... | A224 9,789,117 | 3.f.
---------------------
---------------------------------------------
| (Column A) | (Column B) |
| Assets | Credit Equiv- |
Items 4- 9 and Memoranda items 1 and 2 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 assets of $1 billion or more. | Balance Sheet | Sheet Items (3) |
-----------------------|--------------------
| RCFD Bil Mil Thou | RCFD Bil Mil Thou |
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 409,929 | | 4.a.(1)
(2) All other........................................................... | 3795 126,784 | | 4.a.(2)
b. Credit equivalent amount of off-balance sheet items..................... | | 3796 1,224 | 4.b.
--------------------------------------------
- -------------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not deduct excess allowance for loan and lease losses.
(3) Do not report in column B the risk-weighted amount of assets reported in column 4.
</TABLE>
33
<PAGE> 67
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-24
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Schedule RC-R--Continued
<TABLE>
<S> <C> <C> <C> <C>
-----------------------------------------
(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
- -----------------------------------------------------------------------------------------------------------------------
5. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 20 percent risk category:
a. Assets recorded on the balance sheet:
(1) Claims conditionally guaranteed by the U.S. Government and
its agencies and other OECD central governments..................... 3798 175,964 5.a.(1)
(2) Claims collateralized by securities issued by the U.S. Government
and its agencies and other OECD central governments; by
securities issued by U.S. Government-sponsored agencies; and
by cash on deposit.................................................. 3799 0 5.a.(2)
(3) All other........................................................... 3800 1,321,303 5.a.(3)
b. Credit equivalent amount of off-balance sheet items..................... 3801 616,533 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 355,538 6.a.
b. Credit equivalent amount of off-balance sheet items.................... 3803 124,353 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 8,542,099 7.a.
b. Credit equivalent amount of off-balance sheet items..................... 3805 908,290 7.b.
8. On-balance sheet asset values excluded from the calculation of the
risk-based capital ratio(2)................................................ 3806 (4,514) 8.
9. Total assets recorded on the balance sheet (sum of
items 4.a, 5.a, 6.a, 7.a, and 8, column A) (must equal Schedule RC,
item 12 plus items 4.b and 4.c)............................................ 3807 10,929,103 9.
------------------------------------------
</TABLE>
Memoranda
<TABLE>
<S> <C> <C>
-------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------------------------
1. Current credit exposure across all off-balance sheet derivative contracts covered by the
risk-based capital standards....................................................................... 8764 252,532 M.1.
--------------------
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------
With a remaining maturity of
---------------------------------------------------------------------------
(Column A) (Column B) (Column C)
One year or less Over one year Over five years
through five years
--------------------------------------------------------------------------
RCFD Tril Bil Mil Thou RCFD Tril Bil Mil Thou RCFD Tril Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
2. Notional principal amounts of
off-balance sheet derivative
contracts (3):
a. Interest rate contracts.............. 3809 7,061,681 8766 6,390,288 8767 1,458,064 M.2.a.
b. Foreign exchange contracts........... 3812 909 8769 0 8770 0 M.2.b.
c. Gold contracts....................... 8771 0 8772 0 8773 0 M.2.c.
d. Other precious metals contracts...... 8774 0 8775 0 8776 0 M.2.d.
e. Other commodity contracts............ 8777 0 8778 0 8779 0 M.2.e.
f. Equity derivative contracts.......... A000 0 A001 0 A002 0 M.2.f.
-------------------------------------------------------------------------------
<FN>
- ------------
(1) Do not report in column B the risk-weighted amount of assets reported in column A.
(2) Include the difference between the fair value and the amortized cost of available-for-sale securities in item 8 and report the
amortized cost of these securities in items 4 through 7 above. Item 8 also includes on-balance sheet asset values (or portions
thereof) of off-balance sheet interest rate, foreign exchange rate, and commodity contracts and those contracts (e.g., futures
contracts) not subject to risk-based capital. Exclude from item 8 margin accounts and accrued receivables not included in the
calculation of credit equivalent amounts of off-balance sheet derivatives as well as any portion of the allowance for loan and
lease losses in excess of the amount that may be included in Tier 2 capital.
(3) Excludes foreign exchange contracts with an original maturity of 14 days or less and all futures contracts.
</TABLE>
34
<PAGE> 68
<TABLE>
<S> <C> <C>
Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580 FFIEC 031
Address: 100 East Broad Street Page RC-25
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
</TABLE>
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on December 31, 1996
BANK ONE, COLUMBUS, NA Columbus Ohio
- ------------------------------------- --------------------- ----------------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief
narrative statement on the amounts reported in the Reports of Condition and
Income. This optional statement will be made available to the public, along
with the publicly available data in the Reports of Condition and Income, in
response to any request for individual bank report data. However, the
information reported in column A and in all of Memorandum item 1 of Schedule
RC-N is regarded as confidential and will not be released to the public. BANKS
CHOOSING TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT
DOES NOT CONTAIN THE NAMES OR OTHER INDENTIFICATIONS 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 bank 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 TO 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)
for regulatory purposes, the bank defers the recognition of certain excess
income relating to securitized loan sales until cash is received. the
effect of this accounting method has decreased net income for the current
year $38,078,000 and decreased retained earnings on a cumulative basis
$146,976,000.
/s/ FREDERICK L. CULLEN 1-31-97
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signature of executive officer of bank date of signature
35
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Legal Title of Bank: BANK ONE, COLUMBUS, NA Call Date: 12/31/96 ST-BK: 39-1580
Address: 100 East Broad Street
City, State, Zip: Columbus, OH 43271-1066
FDIC Certificate No.: 06559
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THIS PAGE IS TO BE COMPLETED BY ALL BANKS
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NAME AND ADDRESS OF BANK OMB No. For OCC: 1557-0081
OMB No. For FDIC: 3064-0052
OMB No. For Federal Reserve: 7100-0036
Expiration Date: 3/31/99
SPECIAL REPORT
(Dollar Amounts in Thousands)
PLACE LABEL HERE -----------------------------------------------------------------
CLOSE OF BUSINESS FDIC Certificate Number
DATE C-700 <-
12/31/96 06559
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LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
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The following information is required by Public Laws 90-44 and 102-242, but does not constitute a part of the Report of Condition.
With each Report of Condition, these Laws require all banks to furnish a report of all loans or other extensions of credit to their
executive officers made since the date of the previous Report of Condition. Data regarding individual loans or other extensions of
credit are not required. If no such loans or other extensions of credit were made during the period, insert "none" against subitem
(a). (Exclude the first $15,000 of indebtedness of each executive officer under bank credit card plan.) See Sections 215.2 and 215.3
of Title 12 of the Code of Federal Regulations (Federal Reserve Board Regulation 0) 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.
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a. Number of loans made to executive officers since the previous Call Report date........................... RCFD 3561 2 a.
b. Total dollar amount of above loans (in thousands of dollars)............................................. RCFD 3562 65 b.
c. Range of interest charged on above loans
(example: 9 3/4% = 9.75)................................ RCFD 7701 9.25 % to RCFD 7702 9.25 % c.
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SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT DATE (Month, Day, Year)
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NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED (TEXT 8903) AREA CODE/PHONE NUMBER/EXTENSION
(TEXT 8904)
John J. Dible, Sr. Regulatory Analyst (614) 248-8592
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FDIC 8040/53 (6-95)
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