As filed with the Securities and Exchange Commission on August 19, 1994
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_______________________
United Dominion Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
VIRGINIA 54-0857512
(State or other jurisdiction of incorporation or organization)(I.R.S.
Employer Identification No.)
10 South 6th Street, Suite 203
Richmond, Virginia 23219-3802
(804) 780-2691
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
John P. McCann
President and Chief Executive Officer
United Dominion Realty Trust, Inc.
10 South 6th Street, Suite 203
Richmond, Virginia 23219-3802
(804) 780-2691
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
James W. Featherstone, III, Esq. Howard G. Godwin, Jr., Esq.
Hunton & Williams Brown & Wood
Riverfront Plaza, East Tower One World Trade Center
951 East Byrd Street New York, New York 10048-0557
Richmond, Virginia 23219-4074
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement
in light of market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ( )
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. (X)
CALCULATION OF REGISTRATION FEE
<TABLE>
Proposed
Maximum
Proposed Maximum Aggregate
Title of Each Class of Aggregate Amount Offering Price Per Offering Amount of Registration
Securities to be Registered(1) to be Registered(2) Unit(3) Price(2)(3) Fee(5)
<S> <C> <C> <C> <C>
Debt Securities
Preferred Stock
Common Stock $400,000,000 (4) $400,000,000 $137,932
(1) This Registration Statement also covers delayed delivery
contracts that may be issued by the Registrant under which
the party purchasing such contracts may be required to
purchase Debt Securities, Preferred Stock or Common Stock.
Such contracts may be issued together with the specific
Offered Securities to which they relate. In addition,
Offered Securities registered hereunder may be sold either
separately or as units comprising more than one type of
Offered Security registered hereunder.
(2) In U.S. dollars or the equivalent thereof in one or more
foreign currencies or units of two or more foreign
currencies or composite currencies (such as European
Currency Units).
(3) Estimated solely for purposes of calculating the
registration fee. No separate consideration will be
received for Common Stock or Preferred Stock as may from
time to time be issued upon conversion of Debt Securities or
Preferred Stock.
(4) Omitted pursuant to General Instruction II.D of Form S-3
under the Securities Act of 1933, as amended.
(5) The registration fee has been calculated in accordance with
Rule 457(o) under the Securities Act of 1933, as amended.
</TABLE>
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
this registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 19, 1994
Prospectus
$400,000,000
United Dominion Realty Trust, Inc.
Debt Securities
Preferred Stock
Common Stock
United Dominion Realty Trust, Inc. (the "Trust") intends
to issue from time to time its (i) unsecured senior or
subordinated debt securities (the "Debt Securities"), (ii)
shares of Preferred Stock, no par value ("Preferred Stock"),
and (iii) shares of Common Stock, $1 par value ("Common
Stock"), having an aggregate initial public offering price
not to exceed $400,000,000 or the equivalent thereof in one
or more foreign currencies or composite currencies, including
European Currency Units, on terms to be determined at the
time of sale. The Debt Securities, the Preferred Stock and
the Common Stock offered hereby (collectively, the "Offered
Securities") may be offered, separately or as units with
other Offered Securities, in separate series in amounts, at
prices and on terms to be determined at the time of sale and
to be set forth in a supplement to this Prospectus (a
"Prospectus Supplement").
The Debt Securities will be direct unsecured obligations
of the Trust and may be either senior Debt Securities
("Senior Securities") or subordinated Debt Securities
("Subordinated Securities"). The Senior Securities will rank
equally with all other unsecured and unsubordinated
indebtedness of the Trust. The Subordinated Securities will
be subordinated to all existing and future Senior Debt of the
Trust, as defined. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect
of which this Prospectus is being delivered will be set forth
in the applicable Prospectus Supplement and will include,
where applicable, (i) in the case of Debt Securities, the
specific designation, aggregate principal amount, currency,
denomination, maturity, priority, interest rate, time of
payment of interest, terms of redemption at the option of the
Trust or repayment at the option of the holder or for sinking
fund payments, terms for conversion into or exchange for
other Offered Securities and the initial public offering
price; (ii) in the case of Preferred Stock, the series
designation and number of shares and the dividend,
liquidation, redemption, conversion, voting and other rights
and the initial public offering price; (iii) in the case of
Common Stock, the initial public offering price; and (iv) in
the case of all Offered Securities, whether such Offered
Securities will be offered separately or as a unit with other
Offered Securities. In addition, such specific terms may
include limitations on direct or beneficial ownership and
restrictions on transfer of the Offered Securities, in each
case as may be appropriate to preserve the status of the
Trust as a real estate investment trust ("REIT") for federal
income tax purposes.
The applicable Prospectus Supplement will also contain
information, where applicable, concerning certain United
States federal income tax considerations relating to, and any
listing on a securities exchange of, the Offered Securities
covered thereby.
The Offered Securities may be offered directly, through agents
designated from time to time by the Trust, or to or through
underwriters or dealers. If any designated agents or any underwriters
are involved in the sale of Offered Securities, they will be
identified and their compensation will be described in the applicable
Prospectus Supplement. See "Plan of Distribution." No Offered
Securities may be sold without delivery of the applicable Prospectus
Supplement describing such Offered Securities and the method and terms
of the offering thereof.
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 ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT
PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is August __, 1994.
INFORMATION CONTAINED HEREIN IS SUBJECT TO C0MPLETION OR AMDENDMENT. 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.
<PAGE>
AVAILABLE INFORMATION
The Trust is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and,
in accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information
filed by the Trust with the Commission can be inspected and copied at
the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at its
Regional Offices at Suite 1400, Northwestern Atrium Center, 500 West
Madison Street, Chicago, Illinois 60661 and Suite 1300, 7 World Trade
Center, New York, New York 10048, and can also be inspected and copied
at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, upon payment of the prescribed fees.
This Prospectus is part of a registration statement on Form S-3
(together with all amendments and exhibits, the "Registration
Statement") filed by the Trust with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus does not contain all the information set forth in the
Registration Statement, certain parts of which are omitted in
accordance with the rules of the Commission. For further information,
reference is made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Trust with the Commission
under the Exchange Act are hereby incorporated by reference in this
Prospectus: (i) the Trust's annual report on Form 10-K for the year
ended December 31, 1993; (ii) the Trust's quarterly reports on Form
10-Q for the quarters ended March 31 and June 30, 1994; (iii) the
Trust's Current Report on Form 8-K dated April 15, 1994; (iv) the
Trust's Current Report on Form 8-K dated May 17, 1994; (v) the Trust's
Current Report on Form 8-K dated May 26, 1994; (vi) the Trust's
Current Report on Form 8-K dated July 1, 1994; and (vii) the
description of the Common Stock contained in the Trust's registration
statement on Form 8-A dated April 19, 1990 filed under the Exchange
Act, including any amendment or reports filed for the purpose of
updating such description. All documents filed by the Trust pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of all of the Offered Securities shall be
deemed to be incorporated by reference herein.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein, in any accompanying Prospectus
Supplement relating to a specific offering of Offered Securities or in
any other subsequently filed document, as the case may be, which also
is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or any accompanying Prospectus
Supplement.
The Trust will provide on request and without charge to each
person to whom this Prospectus is delivered a copy (without exhibits)
of any or all documents incorporated by reference into this
Prospectus. Requests for such copies should be directed to United
Dominion Realty Trust, Inc., 10 South 6th Street, Suite 203, Richmond,
Virginia 23219-3802, Attention: Secretary (telephone 804/780-2691).
THE TRUST
The Trust, founded in 1972, is a self-administered equity real
estate investment trust that owns and operates
apartments in the Mid-Atlantic and Southeast from Delaware to Florida.
It is a fully integrated real estate company that acquires, improves,
operates, manages and selectively sells properties with the primary
goal of maximizing its funds from operations, while increasing the
value of its real estate through capital improvements and intensive
management.
The Trust's 128 properties include 110 apartment communities
containing 26,456 apartment units, and 14 shopping centers, two
warehouse/industrial properties and two office properties containing a
total of approximately two million square feet of rentable space.
Most of the Trust's properties are located in the Southeast.
Management believes that the Trust has benefitted from the population
and job growth within this region and that this region will continue
to provide attractive demographic and economic patterns conducive to
real estate investment in the 1990's.
The Trust's investment policy has been to acquire apartment
properties presenting the opportunity for higher occupancy, increased
rents and enhanced property values through a program of renovation,
refurbishment and intensive property management. Beginning in 1991,
the Trust embarked on a major expansion of its apartment portfolio
involving the acquisition of apartment properties having high
occupancy levels and not requiring substantial renovation and entry
into new geographic markets in contiguous states, most notably
Florida. The properties have been acquired generally at significant
discounts from replacement cost and at attractive current yields.
Since the beginning of 1991, the Trust has acquired 72 apartment
properties containing 17,779 units at a total cost of approximately
$539 million.
The Trust has paid continuous quarterly distributions to its
shareholders since 1973 and has increased its distributions each year
during the past 18 years. The current indicated annual distribution
is $.78 per share. In past years, a portion of the Trust's
distributions to shareholders has been designated as a non-taxable
return of capital for federal income tax purposes.
The Trust, a Virginia corporation, has its principal office at 10
South 6th Street, Suite 203, Richmond, Virginia 23219-3802, and its
telephone number is (804) 780-2691. Unless the context indicates
otherwise, the term "Trust," as used herein, includes the Trust and
its subsidiaries, all of which are wholly-owned.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, the net proceeds from the sale of the Offered Securities
will be used for general corporate purposes, which may include
repayment of indebtedness, making improvements to properties and the
acquisition of additional properties.
CERTAIN RATIOS
The following table sets forth the Trust's consolidated ratios of
earnings to fixed charges and funds from operations to fixed charges
for the periods shown.
Six Months
Year Ended December 31, Ended June 30,
1989 1990 1991 1992 1993 1993 1994
Ratio of earnings
to fixed charges 1.45x 1.43x 1.27x 1.54x 1.64x 1.56x 1.70x
Ratio of funds from
operations to fixed
charges 2.08x 2.43x 2.32x 3.00x 2.80x 2.78x 2.90x
The ratios of earnings to fixed charges were computed by dividing
earnings by fixed charges and the ratios of funds from operations to
fixed charges were computed by dividing funds from operations by fixed
charges. For purposes of computing these ratios, earnings consist of
income before extraordinary items plus fixed charges other than
capitalized interest, and fixed charges consist of interest on
borrowed funds (including capitalized interest) and amortization of
debt discount and expense. Funds from operations is defined as income
before gains (losses) on investments and extraordinary items adjusted
for certain non-cash items, primarily real estate depreciation. To
date, the Trust has not issued any shares of Preferred Stock;
therefore, the ratios of earnings to combined fixed charges and
preferred share dividends and funds from operations to combined fixed
charges and preferred share dividends are the same as those presented
in the table.
DESCRIPTION OF DEBT SECURITIES
General
The Senior Securities are to be issued under an indenture dated
as of April 1, 1994, as supplemented from time to time (the "Senior
Indenture"), between the Trust and NationsBank of Virginia, N.A. (the
"Senior Indenture Trustee"), and the Subordinated Securities are to be
issued under an indenture dated as of August 1, 1994, as supplemented
from time to time (the "Subordinated Indenture"), between the Trust
and Crestar Bank (the "Subordinated Indenture Trustee"). The term
"Trustee," as used herein, shall refer to the Senior Indenture Trustee
or the Subordinated Indenture Trustee, as appropriate. The forms of
the Senior Indenture and the Subordinated Indenture (being sometimes
referred to herein collectively as the "Indentures" and individually
as an "Indenture") are filed as exhibits to the Registration Statement
and are respectively available for inspection at the corporate trust
office of the Senior Indenture Trustee in Atlanta, Georgia, and the
corporate trust office of the Subordinated Indenture Trustee in
Richmond, Virginia, or as described under "Available Information."
The Indentures are subject to, and governed by, the Trust Indenture
Act of 1939, as amended (the "TIA"). The statements made hereunder
relating to the Indentures and the Debt Securities are summaries of
certain provisions thereof, do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all
provisions of the Indentures and the Debt Securities. All section
references appearing herein are to sections of the Indentures, and
capitalized terms used but not defined herein have the respective
meanings set forth in the Indentures and the Debt Securities.
Terms
The Debt Securities will be direct, unsecured obligations of the
Trust. The indebtedness represented by the Senior Securities will
rank equally with all other unsecured and unsubordinated indebtedness
of the Trust. The indebtedness represented by the Subordinated
Securities will be subordinated in right of payment to the prior
payment in full of the Senior Debt of the Trust, as described under
"Subordination."
Each Indenture provides that the Debt Securities may be issued
without limit as to aggregate principal amount, in one or more series,
in each case as established from time to time in or pursuant to
authority granted by a resolution of the Board of Directors of the
Trust or as established in one or more indentures supplemental to such
Indenture. Debt Securities may be issued with terms different from
those of Debt Securities previously issued; all Debt Securities of one
series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders
of the Debt Securities of such series, for issuances of additional
Debt Securities of such series (Section 301 of each Indenture).
Each Indenture provides that there may be more than one Trustee
thereunder, each with respect to one or more series of Debt
Securities. Any Trustee under either Indenture may resign or be
removed with respect to one or more series of Debt Securities, and a
successor Trustee may be appointed to act with respect to such series
(Section 608 of each Indenture). In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a Trustee of a trust under the
applicable Indenture separate and apart from the trust administered by
any other Trustee (Sections 101 and 609 of each Indenture), and,
except as otherwise indicated herein, any action described herein to
be taken by the Trustee may be taken by each such Trustee with respect
to, and only with respect to, the one or more series of Debt
Securities for which it is Trustee under the applicable Indenture.
Reference is made to the Prospectus Supplement relating to the
series of Debt Securities being offered for the specific terms
thereof, including:
(1) the title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated Securities;
(2) the aggregate principal amount of such Debt Securities
and any limit on such principal amount;
(3) the percentage of the principal amount at which such
Debt Securities will be issued and, if other than the principal
amount thereof, the portion of the principal amount payable upon
declaration of acceleration of the maturity thereof, or (if
applicable) the portion of the principal amount of such Debt
Securities that is convertible into Capital Stock, or the method
by which any such portion will be determined;
(4) if convertible, in connection with the preservation of
the Trust's status as a REIT, any applicable limitations on the
ownership or transferability of the Capital Stock into which such
Debt Securities are convertible;
(5) the date or dates, or the method by which such date or
dates will be determined, on which the principal of such Debt
Securities will be payable and the amount of principal payable
thereon;
(6) the rate or rates (which may be fixed or variable) at
which such Debt Securities will bear interest, if any, or the
method by which such rate or rates will be determined, the date
or dates from which such interest will accrue or the method by
which such date or dates will be determined, the Interest Payment
Dates on which any such interest will be payable and the Regular
Record Dates for such Interest Payment Dates, or the method by
which such Dates will be determined, and the basis upon which
interest will be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(7) the place or places where the principal of (and premium
or Make-Whole Amount (as defined), if any), interest, if any, on,
and Additional Amounts, if any, payable in respect of, such Debt
Securities will be payable, where such Debt Securities may be
surrendered for registration of transfer or exchange and where
notices or demands to or upon the Trust in respect of such Debt
Securities and the applicable Indenture may be served;
(8) the period or periods within which, the price or prices
(including premium or Make-Whole Amount, if any) at which, the
currency or currencies, currency unit or units or composite
currency or currencies in which and other terms and conditions
upon which such Debt Securities may be redeemed in whole or in
part, at the option of the Trust, if the Trust is to have the
option;
(9) the obligation, if any, of the Trust to redeem, repay
or purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency
unit or units or composite currency or currencies in which, and
other terms and conditions upon which such Debt Securities will
be redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
(10) whether such Debt Securities will be in registered or
bearer form and terms and conditions relating thereto, and, if
other than $1,000 and any integral multiple thereof, the
denominations in which any registered Debt Securities will be
issuable and, if other than $5,000, the denomination or
denominations in which any bearer Debt Securities will be
issuable;
(11) if other than United States dollars, the currency or
currencies in which such Debt Securities will be denominated and
payable, which may be a foreign currency or units of two or more
foreign currencies or a composite currency or currencies;
(12) whether the amount of payments of principal of (and
premium or Make-Whole Amount, if any) or interest, if any, on
such Debt Securities may be determined with reference to an
index, formula or other method (which index, formula or method
may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices
or other indices), and the manner in which such amounts will be
determined;
(13) whether the principal of (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, if any, on
such Debt Securities are to be payable, at the election of the
Trust or a Holder thereof, in a currency or currencies, currency
unit or units or composite currency or currencies other than that
in which such Debt Securities are denominated or stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time
and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the
currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are
denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are to be so payable;
(14) provisions, if any, granting special rights to the
Holders of such Debt Securities upon the occurrence of such
events as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default or covenants of the Trust with respect to
such Debt Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth in the applicable Indenture;
(16) whether such Debt Securities will be issued in
certificated or book-entry form;
(17) the applicability, if any, of the defeasance and
covenant defeasance provisions of Article Fourteen of the
applicable Indenture;
(18) whether and under what circumstances the Trust will pay
Additional Amounts as contemplated in the Indenture on such Debt
Securities in respect of any tax, assessment or governmental
charge and, if so, whether the Trust will have the option to
redeem such Debt Securities rather than pay such Additional
Amounts (and the terms of any such option); and
(19) any other terms of such Debt Securities not
inconsistent with the provisions of the applicable Indenture
(Section 301 of each Indenture).
The Debt Securities may provide for less than the entire
principal amount thereof to be payable upon declaration of
acceleration of the maturity thereof ("Original Issue Discount
Securities") (Section 502 of each Indenture). Special United States
federal income tax, accounting and other considerations applicable to
Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
Denominations, Interest, Registration and Transfer
Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities of any series issued in registered
form will be issuable in denominations of $1,000 and integral
multiples thereof. Unless otherwise specified in the applicable
Prospectus Supplement, the Debt Securities of any series issued in
bearer form will be issuable in denominations of $5,000 (Section 302
of each Indenture).
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of (and premium or Make-Whole Amount, if
any) and interest on any series of Senior Securities will be payable
at the corporate trust office of the Senior Indenture Trustee located
at 715 Peachtree Street, N.E., Midtown Center, 7th Floor, Atlanta,
Georgia 30308-1297 and the principal of (and premium or Make-Whole
Amount, if any) and interest on any series of Subordinated Securities
will be payable at the corporate trust office of the Subordinated
Indenture Trustee located at 919 East Main Street, Richmond, Virginia
23219; provided that at the option of the Trust payment of interest on
any series of Debt Securities may be made by check mailed to the
address of the Person entitled thereto as it appears in the Security
Register for such series or by wire transfer of funds to such Person
at an account maintained within the United States (Sections 301, 305,
306, 307 and 1002 of each Indenture).
Any interest not punctually paid or duly provided for on any
Interest Payment Date with respect to a Debt Security ("Defaulted
Interest") will forthwith cease to be payable to the Holder on the
applicable Regular Record Date and may either be paid to the Person in
whose name such Debt Security is registered at the close of business
on a special record date (the "Special Record Date") for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to the Holder of such Debt Security not less than 10
days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, all as more completely described in the
applicable Indenture (Section 307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities
issued in book-entry form, the Debt Securities of any series will be
exchangeable for other Debt Securities of the same series and of a
like aggregate principal amount and tenor of different authorized
denominations upon surrender of such Debt Securities at the corporate
trust office of the Trustee referred to above. In addition, subject
to certain limitations imposed upon Debt Securities issued in book-
entry form, the Debt Securities of any series may be surrendered for
conversion or registration of transfer thereof at the corporate trust
office of the Trustee referred to above. Every Debt Security
surrendered for conversion, registration of transfer or exchange shall
be duly endorsed or accompanied by a written instrument of transfer.
No service charge will be made for any registration or transfer or
exchange of any Debt Securities, but the Trust may require payment of
a sum sufficient to cover any tax or other governmental charge payable
in connection therewith (Section 305 of each Indenture). If the
applicable Prospectus Supplement refers to any transfer agent (in
addition to the Trustee) initially designated by the Trust with
respect to any series of Debt Securities, the Trust may at any time
rescind the designation of any such transfer agent or approve a change
in the location through which such transfer agent acts, except that
the Trust will be required to maintain a transfer agent in each Place
of Payment for such series. The Trust may at any time designate
additional transfer agents with respect to any series of Debt
Securities (Section 1002 of each Indenture).
Neither the Trust nor the Trustee shall be required to (i) issue,
register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before
any selection of Debt Securities of that series to be redeemed and
ending at the close of business on the day of mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any
Debt Security, or portion thereof, called for redemption, except the
unredeemed portion of any Debt Security being redeemed in part; or
(iii) issue, register the transfer of or exchange any Debt Security
which has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Debt Security not to be so repaid
(Section 305 of each Indenture).
Merger, Consolidation or Sale
The Trust may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
entity, provided that (a) either the Trust shall be the continuing
entity, or the successor entity (if other than the Trust) formed by or
resulting from any such consolidation or merger or which shall have
received the transfer of such assets is a Person organized and
existing under the laws of the United States or any State thereof and
shall expressly assume payment of the principal of (and premium or
Make-Whole Amount, if any) and interest on all of the Debt Securities
and the due and punctual performance and observance of all of the
covenants and conditions contained in each Indenture; (b) immediately
after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Trust or any Subsidiary as a result
thereof as having been incurred by the Trust or such Subsidiary at the
time of such transaction, no Event of Default under an Indenture, and
no event which, after notice or the lapse of time, or both, would
become such an Event of Default, shall have occurred and be
continuing; and (c) an Officers' Certificate and legal opinion
covering such conditions shall be delivered to the Trustee (Sections
801 and 803 of each Indenture).
Certain Covenants
Limitations on Incurrence of Debt. The Trust will not, and will
not permit any Subsidiary to, incur any Debt (as defined below) if,
immediately after giving effect to the incurrence of such Debt and the
application of the proceeds thereof, the aggregate principal amount of
all outstanding Debt of the Trust and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted
accounting principles is greater than 60% of the sum of (without
duplication) (i) the Trust's Total Assets as of the end of the
calendar quarter covered in the Trust's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Commission (or, if such filing is not permitted under the
Exchange Act, with the Trustee) prior to the incurrence of such
additional Debt and (ii) the purchase price of any real estate assets
or mortgages receivable acquired, and the amount of any securities
offering proceeds received (to the extent such proceeds were not used
to acquire real estate assets or mortgages receivable or used to
reduce Debt), by the Trust or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with
the incurrence of such additional Debt (Section 1004 of the Senior
Indenture). The Subordinated Indenture does not limit the incurrence
of Debt.
In addition to the foregoing limitation on the incurrence of
Debt, the Trust will not, and will not permit any Subsidiary to, incur
any Debt secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the property of the Trust or
any Subsidiary if, immediately after giving effect to the incurrence
of such Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Trust and
its Subsidiaries on a consolidated basis which is secured by any
mortgage, lien, charge, pledge, encumbrance or security interest on
property of the Trust or any Subsidiary is greater than 40% of the
Trust's Total Assets (Section 1004 of the Senior Indenture).
In addition to the foregoing limitations on the incurrence of
Debt, the Trust will not, and will not permit any Subsidiary to, incur
any Debt if the ratio of Consolidated Income Available for Debt
Service (as defined below) to the Annual Service Charge (as defined
below) for the four consecutive fiscal quarters most recently ended
prior to the date on which such additional Debt is to be incurred
shall have been less than 1.5, on a pro forma basis after giving
effect thereto and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Debt and any other Debt
incurred by the Trust and its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds therefrom,
including to refinance other Debt, had occurred at the beginning of
such period; (ii) the repayment or retirement of any other Debt by the
Trust and its Subsidiaries since the first day of such four-quarter
period had been incurred, repaid or retired at the beginning of such
period (except that, in making such computation, the amount of Debt
under any revolving credit facility shall be computed based upon the
average daily balance of such Debt during such period); (iii) in the
case of Acquired Debt (as defined below) or Debt incurred in
connection with any acquisition since the first day of such
four-quarter period, the related acquisition had occurred as of the
first day of such period with the appropriate adjustments with respect
to such acquisition being included in such pro forma calculation; and
(iv) in the case of any acquisition or disposition by the Trust or its
Subsidiaries of any asset or group of assets since the first day of
such four-quarter period, whether by merger, stock purchase or sale,
or asset purchase or sale, such acquisition or disposition or any
related repayment of Debt had occurred as of the first day of such
period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma
calculation (Section 1004 of the Senior Indenture).
As used herein,
"Acquired Debt" means Debt of a Person (i) existing at the time
such Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets from such Person, in each case, other than
Debt incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition. Acquired Debt shall be
deemed to be incurred on the date of the related acquisition of assets
from any Person or the date the acquired Person becomes a Subsidiary.
"Annual Service Charge" as of any date means the maximum amount
which is payable in any period for interest on, and original issue
discount of, Debt of the Trust and its Subsidiaries and the amount of
dividends which are payable in respect of any Disqualified Stock (as
defined below).
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations
or other ownership interests (however designated) of such Person and
any rights (other than debt securities convertible into or
exchangeable for corporate stock), warrants or options to purchase any
thereof.
"Consolidated Income Available for Debt Service" for any period
means Funds from Operations (as defined below) of the Trust and its
Subsidiaries plus amounts which have been deducted for interest on
Debt of the Trust and its Subsidiaries.
"Debt" of the Trust or any Subsidiary means any indebtedness of
the Trust, or any Subsidiary, whether or not contingent, in respect of
(without duplication) (i) borrowed money or evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by the Trust or any Subsidiary, (iii) the
reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense
or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Trust or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock or (v) any
lease of property by the Trust or any Subsidiary as lessee which is
reflected on the Trust's consolidated balance sheet as a capitalized
lease in accordance with generally accepted accounting principles to
the extent, in the case of items of indebtedness under (i) through
(iii) above, that any such items (other than letters of credit) would
appear as a liability on the Trust's consolidated balance sheet in
accordance with generally accepted accounting principles, and also
includes, to the extent not otherwise included, any obligation of the
Trust or any Subsidiary to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), Debt of another Person (other than the
Trust or any Subsidiary) (it being understood that Debt shall be
deemed to be incurred by the Trust or any Subsidiary whenever the
Trust or such Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof).
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock
(or by the terms of any security into which it is convertible or for
which it is exchangeable or exercisable), upon the happening of any
event or otherwise (i) matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, (ii) is convertible into or
exchangeable or exercisable for Debt or Disqualified Stock or (iii) is
redeemable at the option of the holder thereof, in whole or in part,
in each case on or prior to the Stated Maturity of the series of Debt
Securities.
"Funds from Operations" for any period means income before gains
(losses) on investments and extraordinary items plus amounts which
have been deducted, and minus amounts which have been added, for the
following non-cash items (without duplication): (a) provision for
federal income taxes of the Trust and its Subsidiaries, (b)
amortization of debt discount, (c) provision for property depreciation
and amortization, (d) the effect of any noncash charge resulting from
a change in accounting principles in determining income before gains
(losses) on investments and extraordinary items for such period and
(e) amortization of deferred charges, as reflected in the financial
statements of the Trust and its Subsidiaries for such period
determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Total Assets" as of any date means the sum of (i) the Trust's
Undepreciated Real Estate Assets and (ii) all other assets of the
Trust determined in accordance with generally accepted accounting
principles (but excluding intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Trust and its Subsidiaries on such date, before depreciation and
amortization determined on a consolidated basis in accordance with
generally accepted accounting principles.
Except as described above, the Indentures do not contain any
provisions that would limit the ability of the Trust to incur
indebtedness or that would afford Holders of the Debt Securities
protection in the event of a highly leveraged or similar transaction
involving the Trust or in the event of a change of control. However,
the Articles of Incorporation of the Trust include provisions for
mandatory redemption and stopping transfer of its Common Stock
designed to preserve the Trust's status as a REIT. The Code provides
that concentration of more than 50% in value of direct or indirect
ownership of Common Stock in five or fewer individual shareholders
during the last six months of any year will result in disqualification
of the Trust as a REIT. Enforcement of the provisions of the Trust's
Articles of Incorporation would prevent such concentration and,
therefore, prevent or hinder a change of control. Reference is made
to the applicable Prospectus Supplement for information with respect
to any deletions from, modifications of or additions to the Events of
Default or covenants of the Trust that are described herein, including
any addition of a covenant or other provision providing event risk or
similar protection.
Existence. Except as described above under "-Merger,
Consolidation or Sale," the Trust will do or cause to be done all
things necessary to preserve and keep in full force and effect the
existence, rights (charter and statutory) and franchises of the Trust
and its Subsidiaries; provided, however, that the Trust shall not be
required to preserve any right or franchise if it determines that the
preservation thereof is no longer desirable in the conduct of the
business of the Trust and its Subsidiaries as a whole and that the
loss thereof is not disadvantageous in any material respect to the
Holders of the Debt Securities of any series (Section 1005 of each
Indenture).
Maintenance of Properties. The Trust will cause all of its
properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the
judgment of the Trust may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted
at all times; provided, however, that the Trust and its Subsidiaries
shall not be prevented from selling or otherwise disposing of for
value their properties in the ordinary course of business (Section
1006 of each Indenture).
Insurance. The Trust will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured against
loss or damage in an amount at least equal to their then full
insurable value with financially sound and reputable insurance
companies (Section 1007 of each Indenture).
Payment of Taxes and Other Claims. The Trust will pay or
discharge or cause to be paid or discharged, before the same become
delinquent, (i) all taxes, assessments and governmental charges levied
or imposed upon it or any Subsidiary or upon the income, profits or
property of the Trust or any Subsidiary, and (ii) all lawful claims
for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Trust or any Subsidiary;
provided, however, that the Trust shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings (Section 1008 of
each Indenture).
Provision of Financial Information. Whether or not the Trust is
subject to Section 13 or 15(d) of the Exchange Act, the Trust will, to
the extent permitted under the Exchange Act, file with the Commission
the annual reports, quarterly reports and other documents which the
Trust would have been required to file with the Commission pursuant to
such Section 13 and 15(d) if the Trust were so subject, such documents
to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Trust would have been
required so to file such documents if the Trust were so subject. The
Trust will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders of Debt Securities, as
their names and addresses appear in the Security Register, without
cost to such Holders, copies of the annual reports and quarterly
reports which the Trust would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Trust were subject to such Sections and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents
which the Trust would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act if the Trust were
subject to such Sections and (y) if filing such documents by the Trust
with the Commission is not permitted under the Exchange Act, promptly
upon written request and payment of the reasonable cost of duplication
and delivery, supply copies of such documents to any prospective
Holder (Section 1009 of each Indenture).
Events of Default, Notice and Waiver
Each Indenture provides that the following events are "Events of
Default" with respect to any series of Debt Securities issued
thereunder: (a) default for 30 days in the payment of any installment
of interest or Additional Amounts payable on any Debt Security of such
series; (b) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Debt Security of such series at its
Maturity; (c) default in making any sinking fund payment as required
for any Debt Security of such series; (d) default in the performance
of any other covenant of the Trust contained in the Indenture (other
than a covenant added to the Indenture solely for the benefit of a
series of Debt Securities issued thereunder other than such series),
continued for 60 days after written notice as provided in the
Indenture; (e) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed
by the Trust (or by any Subsidiary, the repayment of which the Trust
has guaranteed or for which the Trust is directly responsible or
liable as obligor or guarantor) having an aggregate principal amount
outstanding of at least $10,000,000, whether such indebtedness now
exists or shall hereafter be created, which default shall have
resulted in such indebtedness being declared due and payable prior to
the date on which it would otherwise have become due and payable,
without such acceleration having been rescinded or annulled within 10
days after written notice as provided in the Indenture; (f) the entry
by a court of competent jurisdiction of one or more judgments, orders
or decrees against the Trust or any Subsidiary in an aggregate amount
(excluding amounts fully covered by insurance) in excess of
$10,000,000 and such judgments, orders or decrees remain undischarged,
unstayed and unsatisfied in an aggregate amount (excluding amounts
fully covered by insurance) in excess of $10,000,000 for a period of
30 consecutive days; (g) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or
trustee of the Trust or any Significant Subsidiary or for all or
substantially all of either of its property; and (h) any other Event
of Default provided with respect to such series of Debt Securities
(Section 501 of each Indenture). The term "Significant Subsidiary"
means each significant subsidiary (as defined in Regulation S-X
promulgated under the Securities Act) of the Trust.
If an Event of Default under either Indenture with respect to
Debt Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount as may be
specified in the terms thereof) of, and premium or Make-Whole Amount,
if any, on, all of the Debt Securities of that series to be due and
payable immediately by written notice thereof to the Trust (and to the
Trustee if given by the Holders). However, at any time after such
declaration of acceleration with respect to Debt Securities of such
series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by
the Trustee, the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of such series (or of all
Debt Securities then Outstanding under the applicable Indenture, as
the case may be) may rescind and annul such declaration and its
consequences if (a) the Trust shall have deposited with the Trustee
all required payments of the principal of (and premium or Make-Whole
Amount, if any) and interest, and any Additional Amounts, on the Debt
Securities of such series (or of all Debt Securities then Outstanding
under the applicable Indenture, as the case may be), plus certain
fees, expenses, disbursements and advances of the Trustee and (b) all
Events of Default, other than the nonpayment of accelerated principal
(or specified portion thereof and the premium or Make-Whole Amount, if
any) or interest, with respect to the Debt Securities of such series
(or of all Debt Securities then Outstanding under the applicable
Indenture, as the case may be) have been cured or waived as provided
in the Indenture (Section 502 of each Indenture). Each Indenture also
provides that the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series (or of all
Debt Securities then Outstanding under the applicable Indenture, as
the case may be) may waive any past default with respect to such
series and its consequences, except a default (x) in the payment of
the principal of (or premium or Make-Whole Amount, if any) or interest
or Additional Amounts payable on any Debt Security of such series or
(y) in respect of a covenant or provision contained in the applicable
Indenture that cannot be modified or amended without the consent of
the Holder of each Outstanding Debt Security affected thereby (Section
513 of each Indenture).
Each Trustee is required to give notice to the Holders of Debt
Securities within 90 days of a default under the applicable Indenture;
provided, however, that such Trustee may withhold notice to the
Holders of any series of Debt Securities of any default with respect
to such series (except a default in the payment of the principal of
(or premium or Make-Whole Amount, if any) or interest or Additional
Amounts payable on any Debt Security of such series or in the payment
of any sinking fund installment in respect of any Debt Security of
such series) if the Responsible Officers of such Trustee consider such
withholding to be in the interest of such Holders (Section 601 of each
Indenture).
Each Indenture provides that no Holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with
respect to such Indenture or for any remedy thereunder, except in the
case of failure of the Trustee, for 60 days, to act after it has
received a written request to institute proceedings in respect of an
Event of Default from the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of such series, as well as
an offer of reasonable indemnity (Section 507 of each Indenture). This
provision will not prevent, however, any Holder of Debt Securities
from instituting suit for the enforcement of payment of the principal
of (and premium or Make-Whole Amount, if any), interest on and
Additional Amounts payable with respect to, such Debt Securities at
the respective due dates thereof (Section 508 of each Indenture).
Modification of the Indentures
Modifications and amendments of either Indenture may be made with
the consent of the Holders of not less than a majority in principal
amount of all Outstanding Debt Securities issued under such Indenture
that are affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the
consent of the Holder of each such Debt Security affected thereby, (a)
change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any), or any installment of principal of or
interest or Additional Amounts payable on, any such Debt Security; (b)
reduce the principal amount of, or the rate or amount of interest on,
or any premium or Make-Whole Amount payable on redemption of, or any
Additional Amount payable with respect to, any such Debt Security, or
reduce the amount of principal of an Original Issue Discount Security
or Make-Whole Amount, if any, that would be due and payable upon
declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of repayment of
the Holder of any such Debt Security; (c) change the Place of Payment,
or the coin or currency, for payment of principal of (and premium or
Make-Whole Amount, if any), or interest on, or any Additional Amounts
payable with respect to, any such Debt Security; (d) impair the right
to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (e) reduce the percentage of
Outstanding Debt Securities of any series necessary to modify or amend
the applicable Indenture, to waive compliance with certain provisions
thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the Indenture; or (f)
modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to
provide that certain other provisions may not be modified or waived
without the consent of the Holder of such Debt Security (Section 902
of each Indenture).
The Holders of not less than a majority in principal amount of
Outstanding Debt Securities issued under either Indenture have the
right to waive compliance by the Trust with certain covenants in such
Indenture (Section 1012 of each Indenture).
Subordination
Upon any distribution to creditors of the Trust in a liquidation,
dissolution or reorganization, the payment of the principal of and
interest on the Subordinated Securities will be subordinated to the
extent provided in the Subordinated Indenture in right of payment to
the prior payment in full of all Senior Debt (Sections 1601 and 1602
of the Subordinated Indenture), but the obligation of the Trust to
make payment of the principal and interest on the Subordinated
Securities will not otherwise be affected (Section 1608 of the
Subordinated Indenture). No payment of principal or interest may be
made on the Subordinated Securities at any time if a default on Senior
Debt exists that permits the holders of such Senior Debt to accelerate
its maturity and the default is the subject of judicial proceedings or
the Trust receives notice of the default (Section 1603 of the
Subordinated Indenture). After all Senior Debt is paid in full and
until the Subordinated Securities are paid in full, holders will be
subrogated to the rights of holders of Senior Debt to the extent that
distributions otherwise payable to holders have been applied to the
payment of Senior Debt (Section 1607 of the Subordinated Indenture).
By reason of such subordination, in the event of a distribution of
assets upon insolvency, certain general creditors of the Trust may
recover more, ratably, than holders of the Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the
principal of and interest on, or substantially similar payments to be
made by the Trust in respect of, the following, whether outstanding at
the date of execution of the Subordinated Indenture or thereafter
incurred, created or assumed: (a) indebtedness of the Trust for money
borrowed or represented by purchase-money obligations, (b)
indebtedness of the Trust evidenced by notes, debentures, or bonds, or
other securities issued under the provisions of an indenture, fiscal
agency agreement or other instrument, (c) obligations of the Trust as
lessee under leases of property either made as part of any sale and
leaseback transaction to which the Trust is a party or otherwise, (d)
indebtedness of partnerships and joint ventures that is included in
the consolidated financial statements of the Trust, (e) indebtedness,
obligations and liabilities of others in respect of which the Trust is
liable contingently or otherwise to pay or advance money or property
or as guarantor, endorser or otherwise or which the Trust has agreed
to purchase or otherwise acquire, and (f) any binding commitment of
the Trust to fund any real estate investment or to fund any investment
in any entity making such real estate investment, in each case other
than (1) any such indebtedness, obligation or liability referred to in
clauses (a) through (f) above as to which, in the instrument creating
or evidencing the same pursuant to which the same is outstanding, it
is provided that such indebtedness, obligation or liability is not
superior in right of payment to the Subordinated Securities or ranks
pari passu with the Subordinated Securities, (2) any such
indebtedness, obligation or liability which is subordinated to
indebtedness of the Trust to substantially the same extent as or to a
greater extent than the Subordinated Securities are subordinated, and
(3) the Subordinated Securities (Section 101 of the Subordinated
Indenture). At July 31, 1994, Senior Debt aggregated approximately
$378 million. There are no restrictions in the Subordinated Indenture
upon the creation of additional Senior Debt. However, the Senior
Indenture contains limitations on incurrence of indebtedness by the
Trust. See "Certain Covenants -- Limitations on Incurrence of Debt."
Discharge, Defeasance and Covenant Defeasance
Under each Indenture, the Trust may discharge certain obligations
to Holders of any series of Debt Securities issued thereunder that
have not already been delivered to the applicable Trustee for
cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption
within one year) by irrevocably depositing with the applicable
Trustee, in trust, funds in such currency or currencies, currency unit
or units or composite currency or currencies in which such Debt
Securities are payable in an amount sufficient to pay the entire
indebtedness on such Debt Securities in respect of principal (and
premium or Make-Whole Amount, if any) and interest and any Additional
Amounts payable to the date of such deposit (if such Debt Securities
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be (Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article
Fourteen thereof are made applicable to the Debt Securities of or
within any series pursuant to Section 301 of such Indenture, the Trust
may elect either (a) to defease and be discharged from any and all
obligations with respect to such Debt Securities (except for the
obligation to pay Additional Amounts, if any, upon the occurrence of
certain events of tax, assessment or governmental charge with respect
to payments on such Debt Securities and the obligations to register
the transfer or exchange of such Debt Securities, to replace temporary
or mutilated, destroyed, lost or stolen Debt Securities, to maintain
an office or agency in respect of such Debt Securities and to hold
moneys for payment in trust) ("defeasance") (Section 1402 of each
Indenture) or (b) to be released from its obligations with respect to
such Debt Securities under provisions of each Indenture described
under "-Certain Covenants," or, if provided pursuant to Section 301 of
each Indenture, its obligations with respect to any other covenant,
and any omission to comply with such obligations shall not constitute
a default or an Event or Default with respect to such Debt Securities
("covenant defeasance") (Section 1403 of each Indenture), in either
case upon the irrevocable deposit by the Trust with the applicable
Trustee, in trust, of an amount, in such currency or currencies,
currency unit or currency units or composite currency or currencies in
which such Debt Securities are payable at Stated Maturity, or
Government Obligations (as defined below), or both, applicable to such
Debt Securities which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium or Make-Whole
Amount, if any) and interest on such Debt Securities, and any
mandatory sinking fund or analogous payments thereon, on the scheduled
due dates therefor.
Such a trust may only be established if, among other things, the
Trust has delivered to the applicable Trustee an Opinion of Counsel
(as specified in each Indenture) to the effect that the Holders of
such Debt Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such Opinion of Counsel, in the case
of defeasance, must refer to and be based upon a ruling of the
Internal Revenue Service or a change in applicable United States
federal income tax laws occurring after the date of such Indenture
(Section 1404 of each Indenture).
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which
issued the Foreign Currency in which the Debt Securities of a
particular series are payable, for the payment of which its full faith
and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America or the government which issued the Foreign Currency
in which the Debt Securities of such series are payable, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for
the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository
receipt (Section 101 of each Indenture).
Unless otherwise provided in the applicable Prospectus
Supplement, if after the Trust has deposited funds and/or Government
Obligations to effect defeasance or covenant defeasance with respect
to Debt Securities of any series, (a) the Holder of a Debt Security of
such series is entitled to, and does, elect pursuant to Section 301 of
either Indenture or the terms of such Debt Security to receive payment
in a currency, currency unit or composite currency other than that in
which such deposit has been made in respect to such Debt Security, or
(b) a Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which such deposit
has been made, the indebtedness represented by such Debt Security
shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or
Make-Whole Amount, if any) and interest on such Debt Security as they
become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the currency, currency
unit or composite currency in which such Debt Security becomes payable
as a result of such election or such cessation of usage based on the
applicable market exchange rate (Section 1405 of each Indenture).
"Conversion Event" means the cessation of use of (i) a currency,
currency unit or composite currency (other than the ECU or other
currency unit) both by the government of the country that issued such
currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within
the European Communities or (iii) any currency unit or composite
currency other than the ECU for the purposes for which it was
established. Unless otherwise provided in the applicable Prospectus
Supplement, all payments of principal of (and premium or Make-Whole
Amount, if any) and interest on any Debt Security that is payable in a
Foreign Currency that ceases to be used by its government of issuance
shall be made in United States dollars (Section 101 of each
Indenture).
In the event the Trust effects covenant defeasance with respect
to any Debt Securities and such Debt Securities are declared due and
payable because of the occurrence of any Event of Default other than
the Event of Default described in clause (d) under "-Events of
Default, Notice and Waiver" with respect to Sections 1004 to 1009,
inclusive, of either Indenture (which Sections would no longer be
applicable to such Debt Securities) or described in clause (g) under
"-Events of Default, Notice and Waiver" with respect to a covenant as
to which there has been covenant defeasance, the amount in such
currency, currency unit or composite currency in which such Debt
Securities are payable, and Government Obligations on deposit with the
Trustee, will be sufficient to pay amounts due on such Debt Securities
at the time of their Stated Maturity but may not be sufficient to pay
amounts due on such Debt Securities at the time of the acceleration
resulting from such Event of Default. However, the Trust would remain
liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with
respect to the Debt Securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which the Debt Securities
are convertible into Capital Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into Capital Stock, the
conversion price (or manner of calculation thereof), the conversion
period, provisions as to whether conversion will be at the option of
the Holders or the Trust, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of
the redemption of such Debt Securities.
Book-Entry System
The Debt Securities of a series may be issued in whole or in part
in the form of one or more global securities ("Global Securities")
that will be deposited with, or on behalf of a depository (the
"Depository") identified in the Prospectus Supplement relating to such
series. Global Securities, if any, are expected be deposited with The
Depository Trust Company, as Depository. Global Securities may be
issued in fully registered form and may be issued in either temporary
or permanent form. Unless and until it is exchanged in whole or in
part for the individual Debt Securities represented thereby, a Global
Security may not be transferred except as a whole by the Depository
for such Global Security to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of
such Depository or by such Depository or any nominee of such
Depository to a successor Depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to
a series of Debt Securities will be described in the Prospectus
Supplement relating to such series. The Trust expects that unless
otherwise indicated in the applicable Prospectus Supplement the
following provisions will apply to depository arrangements.
Upon the issuance of a Global Security, the Depository for such
Global Security or its nominee will credit on its book-entry
registration and transfer system the respective principal amounts of
the individual Debt Securities represented by such Global Security to
the accounts of persons that have accounts with such Depository
("Participants"). Such accounts shall be designated by the
underwriters, dealers or agents with respect to such Debt Securities
or by the Trust if such Debt Securities are offered directly by the
Trust. 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 in such Global
Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depository for such
Global Security or its nominee (with respect to beneficial interests
of Participants) and records of Participants (with respect to
beneficial interests of persons who hold through Participants). The
laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits
and laws may impair the ability to own, pledge or transfer beneficial
interest in a Global Security.
So long as the Depository for a Global Security or its nominee is
the registered owner of such Global Security, such Depository 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 applicable Indenture. Except as described below
or in the applicable Prospectus Supplement, owners of beneficial
interest in a Global Security will not be entitled to have any of the
individual Debt Securities represented by such Global Security
registered in their names, will not receive or be entitled to receive
physical delivery of any such Debt Securities in definitive form and
will not be considered the owners or holders thereof under the
applicable Indenture.
Payments of principal of, any premium or Make-Whole Amount and
any interest on, or any Additional Amounts payable with respect to,
individual Debt Securities represented by a Global Security registered
in the name of a Depository or its nominee will be made to the
Depository or its nominee, as the case may be, as the registered owner
of the Global Security. None of the Trust, the Trustee, any Paying
Agent or the Security Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in the
Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
The Trust expects that the Depository for any Debt Securities or
its nominee, upon receipt of any payment of principal, premium,
Make-Whole Amount, interest or Additional Amounts in respect of the
Global Security representing such Debt Securities will immediately
credit Participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of
such Global Security as shown on the records of such Depository or its
nominee. The Trust also expects that payments by Participants to
owners of beneficial interests in such Global Security held through
such Participants will be governed by standing instructions and
customary practices, as is the case with securities held for the
account of customers in bearer form or registered in street name. Such
payments will be the responsibility of such Participants.
If a Depository for any Debt Securities is at any time unwilling,
unable or ineligible to continue as depository and a successor
depository is not appointed by the Trust within 90 days, the Trust
will issue individual Debt Securities in exchange for the Global
Security representing such Debt Securities. In addition, the Trust may
at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Debt
Securities, determine not to have any of such Debt Securities
represented by one or more Global Securities and in such event will
issue individual Debt Securities in exchange for the Global Security
or Securities representing such Debt Securities. Individual Debt
Securities so issued will be issued in denominations of $1,000 and
integral multiples thereof.
Trustees
NationsBank of Virginia, N.A., and Crestar Bank participate in
the Trust's revolving credit and line of credit facilities and from
time to time directly or through affiliates perform other services for
the Trust in the normal course of business.
DESCRIPTION OF CAPITAL STOCK
General
The Trust is authorized to issue 100,000,000 shares of Common
Stock, $1 par value, and 25,000,000 shares of Preferred Stock, no par
value. At August 3, 1994, there were 50,214,440 shares of Common
Stock outstanding and no shares of Preferred Stock outstanding.
The following statements with respect to the capital stock of the
Trust are subject to the detailed provisions of the Trust's Restated
Articles of Incorporation, as amended (the "Articles"), and bylaws
(the "Bylaws") as currently in effect. These statements do not
purport to be complete, or to give full effect to the terms of the
provisions of statutory or common law, and are subject to, and are
qualified in their entirety by reference to, the terms of the Articles
and Bylaws, which are filed as exhibits to the Registration Statement.
Common Stock
Holders of Common Stock are entitled to receive dividends when
and as declared by the Board of Directors after payment of, or
provision for, full cumulative dividends on and any required
redemptions of shares of Preferred Stock then outstanding. Holders of
Common Stock have one vote per share and non-cumulative voting rights,
which means that holders of more than 50% of the shares voting can
elect all of the directors if they choose to do so, and, in such
event, the holders of the remaining shares will not be able to elect
any directors. In the event of any voluntary or involuntary
liquidation or dissolution of the Trust, holders of Common Stock are
entitled to share ratably in the distributable assets of the Trust
remaining after satisfaction of the prior preferential rights of the
Preferred Stock and the satisfaction of all debts and liabilities of
the Trust. Holders of Common Stock do not have preemptive rights.
The Transfer Agent for the Common Stock is Mellon Securities
Trust Company, Pittsburgh, Pennsylvania. The Common Stock is traded
on the New York Stock Exchange under the symbol "UDR."
Preferred Stock
The following description of the terms of the Preferred Stock
sets forth certain general terms and provisions of the Preferred Stock
to which a Prospectus Supplement may relate. Specific terms of any
series of Preferred Stock offered by a Prospectus Supplement will be
described in that Prospectus Supplement. The description set forth
below is subject to and qualified in its entirety by reference to the
Articles of Amendment to the Articles fixing the preferences,
limitations and relative rights of a particular series of Preferred
Stock.
General. Under the Articles, the Board of Directors of the Trust
is authorized, without further shareholder action, to provide for the
issuance of up to 25,000,000 shares of Preferred Stock, in one or more
series, with such voting powers and with such designations,
preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions, as the Board
of Directors shall approve.
The Preferred Stock will have the dividend, liquidation,
redemption, conversion and voting rights set forth below unless
otherwise provided in the Prospectus Supplement relating to a
particular series of Preferred Stock. Reference is made to the
Prospectus Supplement relating to the particular series of Preferred
Stock offered thereby for specific terms, including: (i) the title
and liquidation preference per share of such Preferred Stock and the
number of shares offered; (ii) the price at which such series will be
issued; (iii) the dividend rate (or method of calculation), the dates
on which dividends shall be payable and the dates from which dividends
shall commence to accumulate; (iv) any redemption or sinking fund
provisions of such series; (v) any conversion provisions of such
series; and (vi) any additional dividend, liquidation, redemption,
sinking fund and other rights, preferences, privileges, limitations
and restrictions of such series.
The Preferred Stock will, when issued, be fully paid and
nonassessable. Unless otherwise specified in the Prospectus
Supplement relating to a particular series of Preferred Stock, each
series will rank on a parity as to dividends and distributions in the
event of a liquidation with each other series of Preferred Stock and,
in all cases, will be senior to the Common Stock.
Dividend Rights. Holders of Preferred Stock of each series will
be entitled to receive, when, as and if declared by the Board of
Directors, out of assets of the Trust legally available therefor, cash
dividends at such rates and on such dates as are set forth in the
Prospectus Supplement relating to such series of Preferred Stock.
Such rate may be fixed or variable or both and may be cumulative,
noncumulative or partially cumulative.
If the applicable Prospectus Supplement so provides, as long as
any shares of Preferred Stock are outstanding, no dividends will be
declared or paid or any distributions be made on the Common Stock,
other than a dividend payable in Common Stock, unless the accrued
dividends on each series of Preferred Stock have been fully paid or
declared and set apart for payment and the Trust shall have set apart
all amounts, if any, required to be set apart for all sinking funds,
if any, for each series of Preferred Stock.
If the applicable Prospectus Supplement so provides, when
dividends are not paid in full upon any series of Preferred Stock and
any other series of Preferred Stock ranking on a parity as to
dividends with such series of Preferred Stock, all dividends declared
upon such series of Preferred Stock and any other series of Preferred
Stock ranking on a parity as to dividends will be declared pro rata so
that the amount of dividends declared per share on such series of
Preferred Stock and such other series will in all cases bear to each
other the same ratio that accrued dividends per share on such series
of Preferred Stock and such other series bear to each other.
Each series of Preferred Stock will be entitled to dividends as
described in the Prospectus Supplement relating to such series, which
may be based upon one or more methods of determination. Different
series of Preferred Stock may be entitled to dividends at different
dividend rates or based upon different methods of determination.
Except as provided in the applicable Prospectus Supplement, no series
of Preferred Stock will be entitled to participate in the earnings or
assets of the Trust.
Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Trust, the
holders of each series of Preferred Stock will be entitled to receive
out of the assets of the Trust available for distribution to
shareholders the amount stated or determined on the basis set forth in
the Prospectus Supplement relating to such series, which may include
accrued dividends, if such liquidation, dissolution or winding up is
involuntary or may equal the current redemption price per share
(otherwise than for the sinking fund, if any provided for such series)
provided for such series set forth in such Prospectus Supplement, if
such liquidation, dissolution or winding up is voluntary, and on such
preferential basis as is set forth in such Prospectus Supplement. If,
upon any voluntary or involuntary liquidation, dissolution or winding
up of the Trust, the amounts payable with respect to Preferred Stock
of any series and any other shares of stock of the Trust ranking as to
any such distribution on a parity with such series of Preferred Stock
are not paid in full, the holders of Preferred Stock of such series
and of such other shares will share ratably in any such distribution
of assets of the Trust in proportion to the full respective
preferential amounts to which they are entitled or on such other basis
as is set forth in the applicable Prospectus Supplement. The rights,
if any, of the holders of any series of Preferred Stock to participate
in the assets of the Trust remaining after the holders of other series
of Preferred Stock have been paid their respective specified
liquidation preferences upon any liquidation, dissolution or winding
up of the Trust will be described in the Prospectus Supplement
relating to such series.
Redemption. A series of Preferred Stock may be redeemable, in
whole or in part, at the option of the Trust, and may be subject to
mandatory redemption pursuant to a sinking fund, in each case upon
terms, at the times, the redemption prices and for the types of
consideration set forth in the Prospectus Supplement relating to such
series. The Prospectus Supplement relating to a series of Preferred
Stock which is subject to mandatory redemption shall specify the
number of shares of such series that shall be redeemed by the Trust in
each year commencing after a date to be specified, at a redemption
price per share to be specified, together with an amount equal to any
accrued and unpaid dividends thereon to the date of redemption.
If, after giving notice of redemption to the holders of a series
of Preferred Stock, the Trust deposits with a designated bank funds
sufficient to redeem such Preferred Stock, then from and after such
deposit, all shares called for redemption will no longer be
outstanding for any purpose, other than the right to receive the
redemption price and the right to convert such shares into other
classes of stock of the Trust. The redemption price will be stated in
the Prospectus Supplement relating to a particular series of Preferred
Stock.
Except as indicated in the applicable Prospectus Supplement, the
Preferred Stock is not subject to any mandatory redemption at the
option of the holder.
Sinking Fund. The Prospectus Supplement for any series of
Preferred Stock will state the terms, if any, of a sinking fund for
the purchase or redemption of that series.
Conversion Rights. The Prospectus Supplement for any series of
Preferred Stock will state the terms, if any, on which shares of that
series are convertible into shares of Common Stock or another series
of Preferred Stock. The Preferred Stock will have no preemptive
rights.
Voting Rights. Except as indicated in the Prospectus Supplement
relating to a particular series of Preferred Stock, or except as
expressly required by Virginia law, a holder of Preferred Stock will
not be entitled to vote. Except as indicated in the Prospectus
Supplement relating to a particular series of Preferred Stock, in the
event the Trust issues full shares of any series of Preferred Stock,
each such share will be entitled to one vote on matters on which
holders of such series of Preferred Stock are entitled to vote.
Under Virginia law, the affirmative vote of the holders of a
majority of the outstanding shares of all series of Preferred Stock,
voting as a separate voting group, will be required for (i) the
authorization of any class of stock ranking prior to or on parity with
Preferred Stock or the increase in the number of authorized shares of
any such stock, (ii) any increase in the number of authorized shares
of Preferred Stock and (iii) certain amendments to the Articles that
may be adverse to the rights of Preferred Stock outstanding.
Transfer Agent and Registrar. The transfer agent, registrar and
dividend disbursement agent for a series of Preferred Stock will be
selected by the Trust and be described in the applicable Prospectus
Supplement. The registrar for shares of Preferred Stock will send
notices to shareholders of any meetings at which holders of Preferred
Stock have the right to vote on any matter.
Dividend Restrictions
Covenants in its loan agreements with certain lenders restrict
the payment of distributions in excess of the sum of (i) current "cash
flow," (ii) varying additional amounts and (iii) the proceeds of
Common Stock offerings subsequent to various dates, all as defined in
the particular loan agreement. The covenants do not prohibit the Trust
from paying distributions in order to continue its qualification as a
REIT under the Code.
Affiliated Transactions
The Virginia Stock Corporation Act contains provisions governing
"Affiliated Transactions" designed to deter uninvited takeovers of
Virginia corporations. These provisions, with several exceptions
discussed below, require approval of material acquisition transactions
between a Virginia corporation and any holder of more than 10% of any
class of its outstanding voting shares (an "Interested Shareholder")
by the holders of at least two-thirds of the remaining voting shares.
For three years following the time that the Interested Shareholder
becomes an owner of 10% of the outstanding voting shares, Virginia
corporations cannot engage in an Affiliated Transaction with such
Interested Shareholder without approval of two-thirds of the voting
shares other than those shares beneficially owned by the Interested
Shareholder, and majority approval of the "Disinterested Directors."
At the expiration of the three year period, the statute requires
approval of Affiliated Transactions by two-thirds of the voting shares
other than those beneficially owned by the Interested Shareholder
absent an exception. The principal exceptions to the special voting
requirement apply to transactions proposed after the three year period
has expired and require either that the transaction be approved by a
majority of the corporation's Disinterested Directors or that the
transaction satisfy the fair-price requirements of the law.
The Virginia Stock Corporation Act also provides that shares
acquired in a transaction that would cause the acquiring person's
voting strength to cross any of three thresholds (20%, 33%, or 50%)
have no voting rights unless granted by a majority vote of shares not
owned by the acquiring person or any officer or employee-director of
the Trust. An acquiring person may require the Trust to hold a special
meeting of shareholders to consider the matter within 50 days of its
request.
Redemption and Restrictions on Transfer
In order to preserve the Trust's status as a REIT as defined in
the Code, the Trust can redeem or stop the transfer of its shares. The
Articles provide that the Trust is organized to qualify as a REIT.
Because the Code provides that the concentration of more than 50% in
value of the direct or indirect ownership of its shares in five or
fewer individual shareholders during the last six months of any year
would result in the disqualification of the Trust as a REIT, the
Articles provide that the Trust shall have the power (i) to redeem
that number of concentrated shares sufficient in the opinion of the
Board of Directors of the Trust to maintain or bring the direct or
indirect ownership of shares into conformity with the requirements of
the Code, and (ii) to stop the transfer of shares to any person whose
acquisition thereof would, in the opinion of the Trust's Board of
Directors, result in such disqualification. The per share redemption
price of any shares redeemed by the Trust pursuant to this provision
shall be the last reported sale price for the shares as of the
business day preceding the day on which notice of redemption is given.
The Board of Directors of the Trust can require shareholders to
disclose in writing to the Trust such information with respect to
ownership of its shares as it deems necessary to comply with the REIT
provisions of the Code.
REIT Qualification
The Trust operates in a manner intended to qualify for treatment
as a REIT under the Code. In general, a REIT which distributes to its
shareholders at least 95% of its taxable income (other than net
capital gain) for a taxable year and which meets certain other
conditions will not be subject to federal income taxation on income
(including net capital gain) distributed for that year. If the Trust
fails to qualify in any taxable year, it will be taxed for federal
income tax purposes as a corporation for that year and distributions
to shareholders will not be deductible by the Trust in computing its
taxable income. Under such circumstances, the Trust also will be
disqualified from being treated as a REIT under the Code for the
ensuing four fiscal years. Failure to qualify could result in the
Trust's incurring indebtedness and perhaps liquidating investments in
order to pay the resultant taxes.
PLAN OF DISTRIBUTION
The Trust may sell Offered Securities to or through underwriters
or may sell Offered Securities to investors directly or through
designated agents. Any such underwriter or agent involved in the
offer and sale of the Offered Securities will be named in the
applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed
price or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Trust also may,
from time to time, authorize underwriters acting as agents to offer
and sell the Offered Securities upon the terms and conditions set
forth in any Prospectus Supplement. In connection with the sale of
Offered Securities, underwriters may be deemed to have received
compensation from the Trust in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of
Offered Securities for whom they may act as agent. Underwriters may
sell Offered Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or
commissions (which may be changed from time to time) from the
underwriters and/or from the purchasers for whom they may act as
agent.
Any underwriting compensation paid by the Trust to underwriters
or agents in connection with the offering of Offered Securities and
any discounts, concessions or commissions allowed by underwriters to
participating dealers will be set forth in the applicable Prospectus
Supplement. Underwriters, dealers and agents participating in the
distribution of the Offered Securities may be deemed to be
underwriters, and any discounts and commissions received by them and
any profit realized by them on resale of the Offered Securities may be
deemed to be underwriting discounts and commissions under the
Securities Act. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Trust, to indemnification
against and contribution toward certain civil liabilities, including
liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the
Trust will authorize dealers acting as the Trust's agents to solicit
offers by certain institutions to purchase Offered Securities from the
Trust at the public offering price set forth in such Prospectus
Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date or dates stated in such
Prospectus Supplement. Each Contract will be for an amount not less
than, and the principal amount of Offered Securities sold pursuant to
Contracts shall not be less nor more than, the respective amounts
stated in such Prospectus Supplement. Institutions with which
Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but
will in all cases be subject to the approval of the Trust. Contracts
will not be subject to any conditions except (i) the purchase by an
institution of the Offered Securities covered by its Contract shall
not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject
and (ii) the Trust shall have sold to such underwriters the total
principal amount of the Offered Securities less the principal amount
thereof covered by Contracts. A commission indicated in the
Prospectus Supplement will be paid to agents and underwriters
soliciting purchases of Offered Securities pursuant to Contracts
accepted by the Trust. Agents and underwriters shall have no
responsibility in respect of the delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be customers
of, engage in transactions with, and perform services for, the Trust
in the ordinary course of business.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon for
the Trust by Hunton & Williams, Richmond, Virginia. Brown & Wood, New
York, New York will act as counsel to any underwriters, dealers or
agents.
EXPERTS
The financial statements of the Trust incorporated by reference
in its annual report on Form 10-K for the year ended December 31, 1993
have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein
by reference. Such financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The combined historical summary of gross income and direct
operating expenses of Holly Tree Park Apartments, Knolls at Newgate
and Mallard Green Apartments, included in the Trust's Current Report
on Form 8-K, dated May 26, 1994, incorporated by reference in this
Prospectus has been audited by BDO Seidman, independent certified
public accountants, to the extent and for the periods set forth in
their report incorporated herein by reference, and are incorporated
herein in reliance upon such report given upon the authority of said
firm as experts in auditing and accounting. The combined statement of
rental operations of Clover Financial Partnership Properties, included
in the Trust's Current Report on Form 8-K, dated May 26, 1994,
incorporated by reference herein, has been incorporated herein in
reliance upon the report dated May 19, 1994, of Alloy, Silverstein,
Shapiro, Adams, Mulford & Co., independent auditors, also incorporated
by reference herein, and upon the authority of such firm as experts in
accounting and auditing. The statement of rental operations of The
Shire Apartments, included in the Trust's Current Report on Form 8-K,
dated April 15, 1994, incorporated by reference herein, has been
incorporated herein in reliance upon the report dated May 12, 1994, of
L. P. Martin & Company, P.C., independent auditors, also incorporated
by reference herein, and upon the authority of such firm as experts in
accounting and auditing. The statement of rental operations of
Lakewood Place Apartments, included in the Trust's Current Report on
Form 8-K, dated April 15, 1994, incorporated by reference herein, has
been incorporated herein in reliance upon the report dated May 13,
1994, of L. P. Martin & Company, P.C., independent auditors, also
incorporated by reference herein, and upon the authority of such firm
as experts in accounting and auditing. The statements of rental
operations of River Place Apartments and Lakeside North Apartments,
included in the Trust's Current Report on Form 8-K, dated April 15,
1994, incorporated by reference herein, have been incorporated herein
in reliance upon the reports dated May 24, 1994, of L. P. Martin &
Company, P.C., independent auditors, also incorporated by reference
herein, and upon the authority of such firm as experts in accounting
and auditing. The statement of rental operations of Walnut Creek
Apartments, included in the Trust's Current Report on Form 8-K, dated
May 17, 1994, incorporated by reference herein, has been incorporated
herein in reliance upon the report dated June 24, 1994, of L. P.
Martin & Company, P.C., independent auditors, also incorporated by
reference herein, and upon the authority of such firm as experts in
accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the offering are as
follows:
Securities and Exchange Commission registration
fee. . . . . . . . . . . . . . . . . . . . $ 137,932
Accounting fees and expenses. . . . . . . . 150,000
Blue Sky fees and expenses. . . . . . . . . 45,000
Legal fees and expenses . . . . . . . . . . 110,000
Trustees' fees and expenses . . . . . . . . 30,000
Rating agency fees. . . . . . . . . . . . . 100,000
Printing. . . . . . . . . . . . . . . . . . 75,000
Miscellaneous . . . . . . . . . . . . . . . 52,068
TOTAL. . . . . . . . . . . . . . . . . $ 700,000
Item 15. Indemnification of Officers and Directors
Directors and officers of the Trust may be indemnified against
liabilities, fines, penalties, and claims imposed upon or asserted
against them as provided in the Virginia Stock Corporation Act and the
Articles of Incorporation. Such indemnification covers all costs and
expenses reasonably incurred by a director or officer. The Board of
Directors, by a majority vote of a quorum of disinterested directors
or, under certain circumstances, independent counsel appointed by the
Board of Directors, must determine that the director or officer
seeking indemnification was not guilty of willful misconduct or a
knowing violation of the criminal law. In addition, the Virginia Stock
Corporation Act and the Trust's Articles of Incorporation may under
certain circumstances eliminate the liability of directors and
officers in a shareholder or derivative proceeding.
If the person involved is not a director or officer of the Trust,
the Board of Directors may cause the Trust to indemnify to the same
extent allowed for directors and officers of the Trust such person who
was or is a party to a proceeding, by reason of the fact that he is or
was an employee or agent of the Trust, or is or was serving at the
request of the Trust as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise.
Item 16. Exhibits
1 (a) - Form of Underwriting
Agreement for Debt
Securities
1 (b) - Form of Underwriting
Agreement for
Preferred Stock and
Common Stock
4 (i)(a) -Specimen Common Stock Certificate (filed as Exhibit 4(i) to
the Trust's Annual Report on Form 10-K for the year ended
December 31, 1993, and incorporated by reference herein)
4 (i)(b) -Specimen Preferred Stock Certificate
4 (i)(c) -Restated Articles of Incorporation (filed as Exhibit 3 to
the Trust's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1992, and incorporated by reference herein)
4 (i)(d) -Amendment of Restated Articles of Incorporation (filed as
Exhibit 6(a)(1) to Amendment No. 3 to the Trust's Form 8-A
Registration Statement dated April 20, 1993, and
incorporated by reference herein)
4 (i)(e) -Amendment of Restated Articles of Incorporation (filed as
Exhibit 6(a)(2) to an amendment to the Trust's Form 8-A
Registration Statement dated May 26, 1994, and incorporated
by reference herein)
4 (i)(f) -Form of Articles of Amendment setting forth the designations
of the Preferred Stock
4 (i)(g) -Bylaws (filed as Exhibit 4(c) to the Trust's Form S-3
Registration Statement (Registration No. 33-44743) filed
with the Commission on December 31, 1991, and incorporated
by reference herein)
4 (i)(h) -Loan Agreement dated as of November 7, 1991, between the
Trust and Aid Association for Lutherans (filed as Exhibit
6(c)(1) to Amendment No. 1 to the Trust's Form 8-A
Registration Statement dated December 31, 1991, and
incorporated by reference herein)
4 (i)(i) -Loan Agreement dated as of November 14, 1991, between the
Trust and Signet Bank/Virginia (filed as Exhibit 6(c)(2) to
Amendment No. 1 to the Trust's Form 8-A Registration
Statement dated December 31, 1991, and incorporated by
reference herein)
4 (i)(j) -Note Purchase Agreement dated as of February 19, 1992, between
the Trust and Principal Mutual Life Insurance Company (filed as
Exhibit 6(c)(3) to Amendment No. 3 to the Trust's Form 8-A
Registration Statement dated December 31, 1991, and incorporated by
reference herein)
4 (i)(k) -Credit Agreement dated as of December 15, 1992, between the
Trust and Signet Bank/Virginia (filed as Exhibit 6(c)(4) to
Amendment No. 3 to the Trust's Form 8-A Registration
Statement dated April 20, 1993, and incorporated by
reference herein)
4 (i)(l) -Note Purchase Agreement dated as of January 15, 1993,
between the Trust and CIGNA Property and Casualty Insurance
Company, Connecticut General Life Insurance Company,
Connecticut General Life Insurance Company, on behalf of one
or more separate accounts, Insurance Company of North
America, Principal Mutual Life Insurance Company and Aid
Association for Lutherans (filed as Exhibit 6(c)(5) to
Amendment No. 3 to the Trust's Form 8-A Registration
Statement dated April 20, 1993, and incorporated by
reference herein)
4 (i)(m) -Senior Indenture dated as of April 1, 1994, between the
Trust and NationsBank of Virginia, N.A., as Trustee (filed
as Exhibit 4(ii)(f)(1) to the Trust's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1994, and
incorporated by reference herein)
4 (i)(n) -Form of Subordinated Indenture dated as of August 1, 1994,
between the Trust and Crestar Bank, as Trustee
4 (i)(o) -Form of Senior Security
4 (i)(p) -Form of Subordinated Security
5 -Opinion of Hunton & Williams
12 -Statement regarding computation of ratios
23 (a) -Consent of Ernst & Young LLP
23 (b) -Consent of BDO Seidman
23 (c) -Consent of Alloy, Silverstein, Shapiro, Adams, Mulford & Co.
23 (d) -Consent of L. P. Martin & Company, P.C.
23 (e) -Consent of Hunton & Williams (included in Exhibit 5)
24 -Power of Attorney (located on the signature page of this
Registration Statement)
25 (a) -Statement of Eligibility and Qualification on Form T-1 of
NationsBank of Virginia, N.A., as Trustee under the Senior
Indenture, under the Trust Indenture Act of 1939 (filed as
Exhibit 25 to the Trust's Form S-3 Registration Statement
(Registration No. 33-52521) filed with the Commission on March
7, 1994 and incorporated by reference herein)
25 (b) -Statement of Eligibility and Qualification on Form T-1 of
Crestar Bank, as Trustee under the Subordinated Indenture,
under the Trust Indenture Act of 1939
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 post-effective
amendment to this registration statement (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information
with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information
in the registration statement; provided, however, that the
undertakings set forth in subparagraphs (i) and (ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
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 provisions
described under Item 15 above or otherwise, the registrant has been
advised that the 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 against the
registrant by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in the form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
The undersigned registrant hereby undertakes to file an
application for purposes of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Richmond,
Commonwealth of Virginia on the 19th day of August, 1994.
UNITED DOMINION REALTY TRUST, INC.
By John P. McCann
John P. McCann
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on August 19, 1994. Each of the undersigned
officers and directors of the registrant hereby constitutes John P.
McCann and James Dolphin, either of whom may act, his true and lawful
attorneys-in-fact with full power to sign for him and in his name in
the capacities indicated below and to file any and all amendments to
the registration statement filed herewith, making such changes in the
registration statement as the registrant deems appropriate, and
generally to do all such things in his name and behalf in his capacity
as an officer and director to enable the registrant to comply with the
provisions of the Securities Act of 1933 and all requirements of the
Securities and Exchange Commission.
Signature Title & Capacity
John P. McCann President, Chief Executive
John P. McCann Officer (Principal Executive
Officer) and Director
James Dolphin Senior Vice President, Chief
James Dolphin Financial Officer, (Principal
Financial and Accounting
Officer) and Director
Jeff C. Bane Director
Jeff C. Bane
Barry M. Kornblau Director
Barry M. Kornblau
H. Franklin Minor Director
H. Franklin Minor
Exhibit 1(a)
8/17/94 draft
United Dominion Realty Trust, Inc.
Debt Securities
Underwriting Agreement
__________ , 1994
[To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.]
Ladies and Gentlemen:
From time to time United Dominion Realty Trust, Inc., a
Virginia corporation (the Company"), proposes to enter into one
or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as the
parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement
(such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the securities specified therein) certain
of its debt securities (the "Securities") specified in Schedule
II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"). [Delayed delivery
provisions, if any]
The terms and rights of any particular issuance of
Designated Securities shall be as specified in the Pricing
Agreement relating thereto and in or pursuant to the indenture
(the "Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made
from time to time to the Underwriters of such Securities, for
whom the firms designated as representatives of the Underwriters
of such Securities in the Pricing Agreement relating thereto will
act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or
their representatives. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue
and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced
by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall
specify the aggregate principal amount of such Designated
Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such
Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated
Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated
Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-
____) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to
such registration statement, but including all documents
incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission
in such form; no other document with respect to such
registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing
with the Commission (other than prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the
"Act") each in the form heretofore delivered to the
Representatives); and no stop order suspending the
effectiveness of such registration statement has been issued
and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various
parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the
time such part of the registration statement became
effective but excluding Form T-1, each as amended at the
time such part of the registration statement became
effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, is hereinafter called
the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Sections 13(a) or
15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in
the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form
in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference
in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in
all material respects to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such
Securities;
(d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
the Commonwealth of Virginia, with full power and authority
to own, lease and operate its properties and conduct its
business as described in the Prospectus; and the Company is
duly qualified to transact business in all jurisdictions in
which the conduct of its business requires such
qualification except where the failure to so qualify would
not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company;
(e) Each subsidiary of the Company has been duly
organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with full power and authority to own, lease
and operate its properties and conduct its business as
described in the Prospectus and is duly qualified to
transact business in all jurisdictions in which the conduct
of its business requires such qualification except where the
failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of such
subsidiary; all of the issued and outstanding capital stock
of each such subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the
Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(f) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital
stock, total assets or long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, shareholders" equity or results of operations of
the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(g) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(h) The Securities have been duly authorized, and,
when Designated Securities are issued and delivered pursuant
to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as
an exhibit to the Registration Statement; the Indenture has
been duly authorized and duly qualified under the Trust
Indenture Act and, at the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors" rights and to general
equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions
thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(i) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is
bound or to which any of the property or assets of the
Company is subject, nor will such action result in any
violation of the provisions of the Articles of Incorporation
or By-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture, except such as have
been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications 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) The statements set forth in the Prospectus under
the captions "Description of Debt Securities" and
"Description of Notes", insofar as they purport to
constitute a summary of the terms of the Securities and
under the captions "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the
provisions of the documents referred to therein, are
accurate, complete and fair;
(k) Neither the Company nor any of its subsidiaries is
in violation of its Articles of Incorporation or By-laws or
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a
party or by which it or its properties may be bound;
(l) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders" equity
or results of operations of the Company and its
subsidiaries; and, to the best of the Company"s knowledge,
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(m) The financial statements together with related
notes and schedules of the Company and its subsidiaries as
set forth or incorporated by reference in the Registration
Statement present fairly the financial position and the
results of operations of the Company and its subsidiaries at
the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently
applied throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such
periods have been made. The summary financial and
statistical data included in the Prospectus present fairly
the information shown therein and have been compiled on a
basis consistent with the financial statements presented
therein;
(n) The Company and its subsidiaries have good and
marketable title to, or valid and enforceable leasehold
estates in, all items of real and personal property referred
to in the Prospectus as owned or leased by them, in each
case free and clear of all liens, encumbrances, claims,
security interests and defects, other than those referred to
in the Prospectus or which are not material in amount. Each
lease of real property by the Company or any of its
subsidiaries as lessor requiring annual lease payments in
excess of $100,000 is the legal, valid and binding
obligation of the lessee in accordance with its terms
(except that the remedy of specific performance and
injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought
and to the Bankruptcy Act) and the rents which at present
have remained due and unpaid for more than 30 days are not
payable under leases such that, were no further rental
payments to be received under such leases, the financial
condition or results of operations of the Company and its
subsidiaries would be materially adversely affected thereby.
The Company has no reason to believe that the lessee under
any lease (excluding leases for which rent payments due for
the remainder of such lease are less than $500,000) calling
for annual lease payments in excess of $500,000 is not
financially capable of performing its obligations
thereunder;
(o) The Company has filed all Federal, local and
foreign income tax returns which have been required to be
filed and has paid all taxes indicated by said returns and
all assessments received by it to the extent that such taxes
have become due and are not being contested in good faith;
(p) The Company and each of its subsidiaries hold all
material licenses, certificates and permits from
governmental authorities which are necessary to the conduct
of their respective businesses; and neither the Company nor
any of its subsidiaries has infringed any patents, patent
rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company or
any of its subsidiaries;
(q) With respect to all tax periods regarding which
the Internal Revenue Service is or will be entitled to
assert any claim, the Company has met the requirements for
qualification as a real estate investment trust under
Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet
such requirements;
(r) The conditions for use of registration statements
on Form S-3 set forth in the General Instructions on Form
S-3 have been satisfied and the Company is entitled to use
such form for the transaction contemplated herein;
(s) The Company has no knowledge of (a) the unlawful
presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "Hazard-
ous Materials") on any of the properties owned by it or any
of its subsidiaries, or of (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that
have occurred or are presently occurring off such properties
as a result of any construction on or operation and use of
such properties which presence or occurrence would
materially adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company or any of its subsidiaries. In
connection with the construction on or operation and use of
the properties owned by the Company or any of its
subsidiaries, the Company represents that it has no
knowledge of any material failure to comply with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous
Materials;
(t) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act");
(u) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes; and
(v) Ernst & Young, who have certified certain
financial statements of the Company and its subsidiaries,
[and list of other accountants whose reports appear or are
incorporated by reference in the Registration Statement or
the Prospectus, who have certified certain financial
statements of [names of all other applicable entities]] are
[each] independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable
to any Designated Securities and authorization by the
Representatives of the release of such Designated Securities, the
several Underwriters propose to offer such Designated Securities
for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto,
in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours"
prior notice to the Company, shall be delivered by or on behalf
of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf
of the purchase price therefor by certified or official bank
check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time
and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Company
may agree upon in writing, such time and date being herein called
the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or
supplemented in relation to the applicable Designated
Securities in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission"s close of business on the
second business day following the execution and delivery of
the Pricing Agreement relating to the applicable Designated
Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved
by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time
of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of
such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event
of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as
the Representatives may reasonably request to qualify such
Securities for offering and sale under the securities laws
of such jurisdictions as the Representatives may request and
to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as
the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period
to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders
as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and
continuing to and including the later of (i) the termination
of trading restrictions for such Designated Securities, as
notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company which mature more than one
year after such Time of Delivery and which are substantially
similar to such Designated Securities, without the prior
written consent of the Representatives;
(f) To use the net proceeds received by it from the
sale of the Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(g) To continue to elect to qualify as a "real estate
investment trust" under the Code, and to use its best
efforts to continue to meet the requirements to qualify as a
"real estate investment trust".
6. The Company covenants and agrees with the several
Underwriters 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 Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Surveys 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 as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment Surveys; (iv)
any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing
the Securities; (vii) the fees and expenses of any Trustee and
any agent of any Trustee and the fees and disbursements of
counsel for any Trustee in connection with any Indenture and the
Securities; and (viii) 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, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such
Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated
by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the
Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in
relation to the applicable Designated Securities shall have
been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on
the part of the Commission shall have been complied with to
the Representatives" reasonable satisfaction;
(b) Brown & Wood, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or
opinions, dated the Time of Delivery for such Designated
Securities, with respect to the matters covered in
paragraphs (i), (ii), (vi), (vii), (viii), (xiii), (xiv) and
(xv) of subsection (c) below as well as such other related
matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon
such matters;
(c) Hunton & Williams, counsel for the Company, shall
have furnished to the Representatives their written opinion,
dated the Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing
under the laws of the Commonwealth of Virginia, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus as amended or
supplemented and all of the issued shares of capital
stock of the Company have been duly and validly
authorized and issued and are fully paid and
non-assessable;
(iii) The Company is duly qualified to transact
business in all jurisdictions in which the conduct of
its business requires such qualification, or in which
the failure to qualify would have a materially adverse
effect upon the business of the Company;
(iv) Each subsidiary of the Company has been duly
organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and
other) to own its properties and conduct its business
as described in the Prospectus as amended or
supplemented; each such subsidiary is duly qualified to
transact business in all jurisdictions in which the
conduct of its business requires such qualification, or
in which the failure to qualify would have a materially
adverse effect upon the business of such subsidiary;
all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned
by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(v) To the best of such counsel"s knowledge and
other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of
which any property of the Company or any of its
subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material
adverse effect on the current or future consolidated
financial position, shareholders" equity or results of
operations of the Company and its subsidiaries; and, to
the best of such counsel"s knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and
delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated
Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or
supplemented;
(viii) The Indenture has been duly authorized,
executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors" rights and to
general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated
Securities and the compliance by the Company with all
of the provisions of the Designated Securities, the
Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which
the Company is a party or by which the Company is bound
or to which any of the property or assets of the
Company is subject, nor will such actions result in any
violation of the provisions of the Articles of
Incorporation or By-laws of the Company or any statute
or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the
issue and sale of the Designated Securities or the
consummation by the Company of the transactions
contemplated by this Agreement or such Pricing
Agreement or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, orders,
registrations or qualifications as may be required
under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated
Securities by the Underwriters;
(xi) Neither the Company nor any of its
subsidiaries is in violation of its charter or in
default in the performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it
is a party or by which it or its properties may be
bound;
(xii) The statements set forth in the Prospectus
under the captions "Description of Debt Securities" and
"Description of Notes", insofar as they purport to
constitute a summary of the terms of the Securities,
under the captions "Certain Federal Income Tax
Consequences" and "Description of Capital Stock", and
under the captions "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the
provisions of the documents referred to therein, are
accurate, complete and fair;
(xiii) The Company is not an "investment
company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment
Company Act;
(xiv) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than
the financial statements and related schedules therein,
as to which such counsel need express no opinion), when
they became effective or were filed with the
Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and they have
no reason to believe that any of such documents, when
they became effective or were so filed, as the case may
be, contained, in the case of a registration statement
which became effective under the Act, an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or, in the case of other documents which
were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
(xv) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments
and supplements thereto made by the Company prior to
the Time of Delivery for the Designated Securities
(other than the financial statements and related
schedules therein, as to which such counsel need
express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements
contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion
in subsection (xii) of this Section 7(c), they have no
reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto
made by the Company prior to the Time of Delivery
(other than the financial statements and related
schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as
to which such counsel need express no opinion)
contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading or that, as
of the Time of Delivery, either the Registration
Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than
the financial statements and related schedules therein,
as to which such counsel need express no opinion)
contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; and they do
not know of any amendment to the Registration Statement
required to be filed or any contracts or other
documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as
amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by
reference or described as required;
(d) Hunton & Williams, counsel for the Company, shall
have furnished to the Representatives their written opinion,
dated the Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives,
to the effect that the Company has qualified to be taxed as
a real estate investment trust pursuant to Sections 856
through 860 of the Code for its most recently ended fiscal
year and for the four fiscal years immediately preceding
such year, and the Company's organization and contemplated
method of operation are such as to enable it to continue to
so qualify for its current fiscal year;
(e) On the date of the Pricing Agreement for such
Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the
Company who have certified the financial statements of the
Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished
to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent
report filed with the Commission containing financial
statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto,
and with respect to such letter dated such Time of Delivery,
as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to
the Representatives;
(f) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated
by reference in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated
Securities any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the
capital stock, total assets or long-term debt of the Company
or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders"
equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in
the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, the effect
of which, in any such case described in Clause (i) or (ii),
is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading
shall have occurred in the rating accorded the Company"s
debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of
the Company"s debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company"s securities on the New
York Stock Exchange; (iii) a general moratorium on
commercial banking activities in New York declared by either
Federal or New York State authorities; or (iv) the outbreak
or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this
Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as
first amended or supplemented relating to the Designated
Securities; and
(i) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for
the Designated Securities a certificate or certificates of
officers of the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and
(f) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented
and any other prospectus relating to the Securities, or any
amendment 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 will reimburse each
Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided,
however, that the Company shall 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 an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented
and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to
such Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to
the Securities, or any amendment 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, in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(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 of the Designated
Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. 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 of the Designated Securities 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 such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company on the one hand or such 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 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 applicable
Designated 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 obligations
of the Underwriters of Designated Securities in this subsection
(d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not
joint.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation
to purchase the Designated Securities which it has agreed to
purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange
for themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure
another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such
terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for
the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus
as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount
of such Designated Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the
Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Designated Securities which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter
agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount
of Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the Company
and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of
and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant
to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Designated
Securities covered by such Pricing Agreement except as provided
in Section 6 and Section 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall
then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each
of such Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Representatives as set forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters" Questionnaire, or telex
constituting such Questionnaire, which address will be supplied
to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections
8 and 10 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement.
As used herein, "business day" shall mean any day when the
Commission"s office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
16. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in
any number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall together
constitute one and the same instrument.
Very truly yours,
United Dominion Realty Trust,
Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
ANNEX I
Pricing Agreement
[Names of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Name and Address of Representative]
__________, 19__
Dear Sirs:
United Dominion Realty Trust, Inc., a Virginia corporation
(the "Company"), proposes, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated
___________, 19__ (the "Underwriting Agreement"), between the
Company on the one hand and [names of Representatives named
therein] on the other hand, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities").
Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein; and each of
the representations and warranties set forth therein shall be
deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as
of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to
the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of
the Underwriters of the Designated Securities pursuant to Section
12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement
to the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us ________ counterparts hereof, and
upon acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein
by reference, shall constitute a binding agreement between each
of the Underwriters and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters
is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be
submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
United Dominion Realty Trust,
Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
Accepted as of the date hereof:
......................................
[(Name(s) of Co-Representative(s)]
On behalf of each of the Underwriters
SCHEDULE I Principal Amount of Designated Securities to be
Underwriter Purchased $
Total $
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and
accrued amortization, if any, from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and accrued
amortization, if any, from to
]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture:
Indenture dated , 1994, between the
Company and ________________________________, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than
through the sinking fund, in whole or in part at the option
of the Company, in the amount of [$ ] or an integral
multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If
[redeemed on or before , %, and if] redeemed
during the 12-month period beginning ,
Redemption Year Price
and thereafter at 100% of their principal amount,
together in each case with accrued interest to the
redemption date.]
[on any interest payment date falling on or after
, , at the election of the Company, at a
redemption price equal to the principal amount thereof,
plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as
mandatory redemption upon occurrence of certain events
or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire [$ ] principal amount of
Designated Securities on in each of the years
through at 100% of their principal amount plus
accrued interest] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to
retire an additional [$ ] principal amount of
Designated Securities in the years through
at 100% of their principal amount plus accrued interest].
[If Securities are extendable Debt Securities, insert--
Extendable provisions:
Securities are repayable on , [insert
date and years], at the option of the holder, at their
principal amount with accrued interest. Initial annual
interest rate will be %, and thereafter annual
interest rate will be adjusted on , and
to a rate not less than % of the effective
annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to
maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each ,
, and ] [to an annual rate of %
above the average rate for -year
[month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual
interest rate [thereafter] [from through ]
will be the interest yield equivalent of the weekly average
per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the
excess, if any, of (i) then current weekly average per annum
secondary market yield for -month certificates of
deposit over (ii) then current interest yield equivalent of
the weekly average per annum market discount rate for
-month Treasury bills); [from and thereafter the rate
will be the then current interest yield equivalent plus %
of Interest Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location for Delivery of Securities:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]*:
* A description of particular tax, accounting or other
unusual features (such as the addition of event risk provisions)
of the Securities should be set forth, or referenced to an
attached and accompanying description, if necessary to ensure
agreement as to the terms of the Securities to be purchased and
sold. Such a description might appropriately be in the form in
which such features will be described in the Prospectus
Supplement for the offering.
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the
effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and,
if applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma
financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of
the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
[separately] furnished to the representative or representatives
of the Underwriters (the "Representatives") such term to include
an Underwriter or Underwriters who act without any firm being
designated as its or their representatives [and are attached
hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included in the
Company"s quarterly report on Form 10-Q incorporated by reference
into the Prospectus as indicated in their reports thereon copies
of which [have been separately furnished to the
Representatives][are attached hereto]; and on the basis of
specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable
accounting requirements of the [Act and the Exchange] Act and the
related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting
requirements of the [Act and the Exchange] Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years
included in the Prospectus and included or incorporated by
reference in Item 6 of the Company"s Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Company"s
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified
in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d)
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the Company
and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in
the Company"s Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus or included in the Company"s Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated
by reference in the Company"s Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference
in the Company"s Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or stockholders" equity
or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference
in the Prospectus to the specified date referred to in
Clause (E) there were any decreases in consolidated net
revenues, rental income or operating profit or the total or
per share amounts of consolidated net income or income
before gains (losses) on investments and extraordinary items
or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Representatives, except in each case
for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which
are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified
by the Representatives or in documents incorporated by reference
in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents
incorporated by reference therein) as defined in the Underwriting
Agreement as of the date of the letter delivered on the date of
the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable
Designated Securities for purposes of the letter delivered at the
Time of Delivery for such Designated Securities.
Draft: 8/18/94
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
Common Stock and Preferred Stock
UNDERWRITING AGREEMENT
______________, 199__
[Name[s] of Representative[s]]
Dear Sirs:
United Dominion Realty Trust, Inc., a Virginia corporation
(the "Company"), proposes to issue and sell shares of common
stock, par value $1.00 per share (the "Common Stock"), and shares
of preferred stock without par value (the "Preferred Stock") from
time to time, in one or more offerings on terms to be determined
at the time of sale. Each series of Preferred Stock may vary as
to the specific number of shares, title, stated value,
liquidation preference, issuance price, ranking, dividend rate or
rates (or method of calculation), dividend payment dates, any
redemption or sinking fund requirements, any conversion
provisions and any other variable terms as set forth in the
applicable Articles of Amendment to the Company's Articles of
Incorporation (each, the "Articles of Amendment") relating to
such series of Preferred Stock. As used herein, "Securities"
shall mean the Common Stock and the Preferred Stock. As used
herein, "you" and "your", unless the context otherwise requires,
shall mean the parties to whom this Agreement is addressed
together with the other parties, if any, identified in the
applicable Terms Agreement (as hereinafter defined) as additional
co-managers with respect to Underwritten Securities (as
hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of
Securities through you or through an underwriting syndicate
managed by you, the Company will enter into an agreement (the
"Terms Agreement") providing for the sale of such Securities (the
"Underwritten Securities") to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on
their behalf (the "Underwriters", which term shall include you
whether acting alone in the sale of the Underwritten Securities
or as a member of an underwriting syndicate and any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify
the number of Underwritten Securities of each class or series to
be initially issued (the "Initial Underwritten Securities"), the
names of the Underwriters participating in such offering (subject
to substitution as provided in Section 10 hereof), the number of
Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, the names of such of you or such
other Underwriters acting as co-managers, if any, in connection
with such offering, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the time, date and
place of delivery and payment, any delayed delivery arrangements
and any other variable terms of the Initial Underwritten
Securities (including, but not limited to, current ratings (in
the case of Preferred Stock only), designations, liquidation
preferences, conversion provisions, redemption provisions and
sinking fund requirements). In addition, each Terms Agreement
shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the number of
Underwritten Securities subject to such option (the "Option
Securities"). As used herein, the term "Underwritten Securities"
shall include the Initial Underwritten Securities and all or any
portion of the Option Securities agreed to be purchased by the
Underwriters as provided herein, if any. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of
Underwritten Securities through you or through an underwriting
syndicate managed by you will be governed by this Agreement, as
supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Com-
mission (the "Commission") a registration statement on Form S-3
(No. 33-_______) for the registration of the Securities
(including the Underwritten Securities) and certain of the
Company's debt securities under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed such amendments thereto as may have
been required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission. Such
registration statement (as amended, if applicable), on the one
hand, and the prospectus constituting a part thereof and each
prospectus supplement relating to the offering of Underwritten
Securities provided to the Underwriters for use (whether or not
such prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations) (the
"Prospectus Supplement"), on the other hand, including all
documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or otherwise,
are referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a Prospectus
Supplement shall be deemed to have supplemented the Prospectus
only with respect to the offering of Underwritten Securities to
which it relates. All references in this Agreement to financial
statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement
or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include,
without limitation, any document filed under the 1934 Act which
is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to you, as of the
date hereof, and to you and each other Underwriter named in the
applicable Terms Agreement, as of the date thereof (such latter
date being referred to herein as a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective,
complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of
the 1933 Act and 1933 Act Regulations; the Registration
Statement, at the time the Registration Statement became
effective, did not, and as of the applicable Representation
Date, will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; the Prospectus, as of the date hereof does not,
and as of the applicable Representation Date and at Closing
Time (as hereinafter defined) will not, include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to that
part of the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished
to the Company in writing by any Underwriter through you
expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were or
hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission
under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus,
at the time the Registration Statement became effective and
as of the applicable Representation Date or Closing Time or
during the period specified in Section 3(f), did not and
will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein, not misleading.
(iii) The accountants who certified the financial
statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement
and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements and supporting schedules
included in, or incorporated by reference into, the Regis-
tration Statement and the Prospectus present fairly in all
material respects the financial position of the Company and
its subsidiaries as of the dates indicated and the results
of their operations for the periods specified; except as
otherwise stated in the Registration Statement and the
Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules
included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material
respects the information required to be stated therein.
(v) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no
material adverse change or development involving a
prospective material adverse change in or affecting the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or
not occurring in the ordinary course of business, (B) there
have been no transactions or acquisitions entered into by
the Company or any of its subsidiaries other than those
arising in the ordinary course of business, and (C) except
for regular quarterly dividends on the Company's shares of
common stock, or dividends declared, paid or made in
accordance with the terms of any series of the Company's
preferred stock, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any
series of its common stock or preferred stock.
(vi) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
the Commonwealth of Virginia, with full power and authority
to own, lease and operate its properties and conduct its
business as described in the Prospectus; and the Company is
duly qualified to transact business in all jurisdictions in
which the conduct of its business requires such
qualification except where the failure to so qualify would
not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company.
(vii) Each subsidiary of the Company has been duly
organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with full power and authority to own, lease
and operate its properties and conduct its business as
described in the Prospectus and is duly qualified to
transact business in all jurisdictions in which the conduct
of its business requires such qualification except where the
failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of such
subsidiary; all of the issued and outstanding capital stock
of each such subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the
Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) The authorized, issued and outstanding shares of
common and preferred stock of the Company are as set forth
in the Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations,
agreements or the exercise of convertible securities
referred to in the Registration Statement including, without
limitation, exercise of stock options, granting of stock
options or issuance of shares pursuant to the dividend
reinvestment plan); and such shares of common stock and
preferred stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and are
not subject to preemptive or other similar rights.
(ix) The applicable Underwritten Securities have been
duly authorized by the Company for issuance and sale
pursuant to this Agreement and, when issued and delivered
pursuant to this Agreement against payment of the
consideration therefor specified in the applicable Terms
Agreement or any Delayed Delivery Contract (as hereinafter
defined), such Underwritten Securities will be duly and
validly issued, fully paid and non-assessable; the Preferred
Stock, if applicable, conforms to the provisions of the
Articles of Amendment; such Underwritten Securities conform
in all material respects to all statements relating thereto
contained in the Prospectus; and the issuance of such
Underwritten Securities is not subject to preemptive or
other similar rights.
(x) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Stock will have been
duly and validly authorized and reserved for issuance upon
such conversion or exercise by all necessary action and such
shares, when issued upon such conversion or exercise, will
be duly and validly issued, fully paid and non-assessable,
and the issuance of such shares upon such conversion or
exercise will not be subject to preemptive or other similar
rights; the Common Stock so issuable conforms in all
material respects to all statements relating thereto
contained in the Prospectus.
(xi) Neither the Company nor any of its subsidiaries
is in violation of its Articles of Incorporation or By-Laws
or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note,
lease (other than as disclosed in the Prospectus) or other
instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of
its subsidiaries is subject and which default is of material
significance in respect of the business or financial
condition of the Company and its subsidiaries considered as
one enterprise; and the execution, delivery and performance
of this Agreement and the applicable Terms Agreement and the
consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all
necessary action on the part of the Company, and will not
conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any
property or assets of the Company or any of its subsidiaries
is subject, or result in any violation of the Articles of
Incorporation or By-Laws of the Company or any law,
administrative regulation or administrative or court decree.
(xii) With respect to all tax periods regarding which
the Internal Revenue Service is or will be entitled to
assert any claim, the Company has met the requirements for
qualification as a real estate investment trust under
Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet
such requirements; and the Company is not an "investment
company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(xiii) The conditions for use of registration
statements on Form S-3 set forth in the General Instructions
on Form S-3 have been satisfied and the Company is entitled
to use such form for the transaction contemplated herein and
in any applicable Terms Agreement.
(xiv) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries
which is required to be disclosed in the Prospectus (other
than as disclosed therein) or which might result in any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise, or which might materially and adversely
affect the properties or assets thereof or which might
materially and adversely affect the consummation of this
Agreement or the applicable Terms Agreement or the
transactions contemplated herein and therein; all pending
legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of their
respective property is the subject which are not described
in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or
documents of the Company or any of its subsidiaries which
would be required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the
Registration Statement.
(xv) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the consummation by the Company of the transactions
contemplated by this Agreement or the applicable Terms
Agreement, except such as may be required under the 1933 Act
or the 1933 Act Regulations or state securities or Blue Sky
laws.
(xvi) The Company has full right, power and authority
to enter into this Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, and this
Agreement has been, and as of the applicable Representation
Date, the applicable Terms Agreement and the Delayed
Delivery Contracts, if any, will have been, duly authorized,
executed and delivered by the Company.
(xvii) The Company and its subsidiaries have good and
marketable title to, or valid and enforceable leasehold
estates in, all items of real and personal property referred
to in the Prospectus as owned or leased by them, in each
case free and clear of all liens, encumbrances, claims,
security interests and defects, other than those referred to
in the Prospectus or which are not material in amount. Each
lease of real property by the Company or any of its
subsidiaries as lessor requiring annual lease payments in
excess of $100,000 is the legal, valid and binding
obligation of the lessee in accordance with its terms
(except that the remedy of specific performance and
injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought
and to the Bankruptcy Act) and the rents which at present
have remained due and unpaid for more than 30 days are not
payable under leases such that, were no further rental
payments to be received under such leases, the financial
condition or results of operations of the Company and its
subsidiaries would be materially adversely affected thereby.
The Company has no reason to believe that the lessee under
any lease (excluding leases for which rent payments due for
the remainder of such lease are less than $500,000) calling
for annual lease payments in excess of $500,000 is not
financially capable of performing its obligations
thereunder.
(xviii) The Company has filed all Federal, local and
foreign income tax returns which have been required to be
filed and has paid all taxes indicated by said returns and
all assessments received by it to the extent that such taxes
have become due and are not being contested in good faith.
(xix) The Company and each of its subsidiaries hold
all material licenses, certificates and permits from
governmental authorities which are necessary to the conduct
of their respective businesses; and neither the Company nor
any of its subsidiaries has infringed any patents, patent
rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company or
any of its subsidiaries.
(xx) The Company has no knowledge of (a) the unlawful
presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively,
"Hazardous Materials") on any of the properties owned by it
or any of its subsidiaries, or of (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that
have occurred or are presently occurring off such properties
as a result of any construction on or operation and use of
such properties which presence or occurrence would
materially adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company or any of its subsidiaries. In
connection with the construction on or operation and use of
the properties owned by the Company or any of its
subsidiaries, the Company represents that it has no
knowledge of any material failure to comply with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous
Materials.
(xxi) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes.
(b) Any certificate signed by any officer of the Company
and delivered to you or to counsel for the Underwriters in
connection with the offering of the Underwritten Securities shall
be deemed a representation and warranty by the Company to each
Underwriter participating in such offering as to the matters
covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at the applicable
Representation Date subsequent thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Company may grant, if so
provided in the applicable Terms Agreement relating to the
Initial Underwritten Securities, an option to the Underwriters
named in such Terms Agreement, severally and not jointly, to
purchase up to the number of Option Securities set forth therein
at the same price per Option Security as is applicable to the
Initial Underwritten Securities. Such option, if granted, will
expire 30 days (or such lesser number of days as may be specified
in the applicable Terms Agreement) after the Representation Date
relating to the Initial Underwritten Securities, and may be
exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial
Underwritten Securities upon notice by you to the Company setting
forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date
of payment and delivery for such Option Securities. Any such
time, date and place of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than seven full
business days nor earlier than two full business days after the
exercise of said option, nor in any event prior to Closing Time,
unless otherwise agreed upon by you and the Company. If the
option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of
Initial Underwritten Securities each such Underwriter has
severally agreed to purchase as set forth in the applicable Terms
Agreement bears to the total number of Initial Underwritten
Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as you in your discretion
shall make to eliminate any sales or purchases of fractional
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall
be made at the office of Brown & Wood, 58th Floor, One World
Trade Center, New York, New York 10048-0557, or at such other
place as shall be agreed upon by you and the Company, at 10:00
A.M., New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section 10 herein)
following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Company (each
such time and date of payment and delivery being referred to
herein as the "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of
certificates representing, such Option Securities, shall be made
at the above-mentioned offices of Brown & Wood, or at such other
place as shall be agreed upon by you and the Company on each Date
of Delivery as specified in the notice from you to the Company.
Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company by certified or official
bank check or checks in New York Clearing House funds payable to
the order of the Company against delivery to you for the
respective accounts of the Underwriters of the certificates for
the Underwritten Securities to be purchased by them. The
Underwritten Securities shall be in such authorized denominations
and registered in such names as you may request in writing at
least two business days prior to the Closing Time or Date of
Delivery, as the case may be. The Underwritten Securities, which
may be in temporary form, will be made available for examination
and packaging by you on or before the first business day prior to
the Closing Time or the Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase
Underwritten Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially
in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to you at Closing Time,
for the respective accounts of the Underwriters, a fee specified
in the applicable Terms Agreement for each of the Underwritten
Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement.
Any Delayed Delivery Contracts are to be with institutional
investors of the types described in the Prospectus. At the
Closing Time, the Company will enter into Delayed Delivery
Contracts (for not less than the minimum number of Underwritten
Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as provided
below, but not for an aggregate number of Underwritten Securities
in excess of that specified in the applicable Terms Agreement.
The Underwriters will not have any responsibility for the
validity or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least three business
days prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter
into Delayed Delivery Contracts and the number of Underwritten
Securities to be purchased by each of them, and the Company will
advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the number of
Underwritten Securities to be covered by each such Delayed
Delivery Contract.
The number of Underwritten Securities agreed to be purchased
by the several Underwriters pursuant to the applicable Terms
Agreement shall be reduced by the number of Underwritten
Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by you to
the Company; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall
be the total number of Underwritten Securities covered by the
applicable Terms Agreement, less the number of Underwritten
Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants
with you, and with each Underwriter participating in the offering
of Underwritten Securities, as follows:
(a) Immediately following the execution of the applicable
Terms Agreement, the Company will prepare a Prospectus Supplement
setting forth the number of Underwritten Securities covered
thereby and their terms not otherwise specified in the Prospectus
pursuant to which the Underwritten Securities are being issued,
the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has
agreed to purchase, the names of the Underwriters acting as co-
managers in connection with the offering, the price at which the
Underwritten Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, if any, the
selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company
deem appropriate in connection with the offering of the
Underwritten Securities; and the Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will
furnish to the Underwriters named therein as many copies of the
Prospectus (including such Prospectus Supplement) as you shall
reasonably request.
(b) The Company will notify you immediately, and confirm
such notice in writing, of (i) the effectiveness of any amendment
to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus Supplement or other
supplement or amendment to the Prospectus to be filed pursuant to
the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; and the Company will make every
reasonable effort to prevent the issuance of any such stop order
and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, the Company will give you
notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, and will furnish you with copies of any such amendment
or supplement a reasonable amount of time prior to such proposed
filing and, unless required by law, will not file or use any such
amendment or supplement or other documents in a form to which you
or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter a signed
copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith and
documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act) as you reasonably request and
will also deliver to each Underwriter a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (including documents incorporated by reference but
without exhibits).
(e) The Company will furnish to each Underwriter, from time
to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations.
(f) If at any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities any event shall occur or
condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters, to amend or supplement
the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in
the opinion of such counsel, at any such time to amend or
supplement the Registration Statement or the Prospectus in order
to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and file with
the Commission such amendment or supplement, whether by filing
documents pursuant to the 1933 Act, the 1934 Act or otherwise, as
may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with
such requirements.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities and the
Common Stock issuable upon conversion of the Preferred Stock, if
any, for offering and sale under the applicable securities laws
and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate; and in
each jurisdiction in which the Underwritten Securities and the
Common Stock issuable upon conversion of the Preferred Stock, if
any, have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long
as may be required for the distribution of the Underwritten
Securities and the Common Stock issuable upon conversion of the
Preferred Stock, if any; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any
jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities,
the Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later
than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in such Rule 158) of the Regis-
tration Statement.
(i) The Company will continue to elect to qualify as a
"real estate investment trust" under the Code and will use its
best efforts to continue to meet the requirements to qualify as a
"real estate investment trust."
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Company will not, between the date of the
applicable Terms Agreement and the termination of any trading
restrictions or the Closing Time, whichever is later, with
respect to the Underwritten Securities covered thereby, without
your prior written consent, offer or sell, grant any option for
the sale of, or enter into any agreement to sell, any securities
of the same class or series or ranking on a parity with such
Underwritten Securities (other than the Underwritten Securities
which are to be sold pursuant to such Terms Agreement), or if
such Terms Agreement relates to Preferred Stock that is
convertible into Common Stock, any Common Stock or any security
convertible into Common Stock (except for Common Stock issued
pursuant to reservations, agreements, employee benefit plans,
dividend reinvestment plans, or employee and director stock
option plans), except as may otherwise be provided in the
applicable Terms Agreement.
(l) If the Preferred Stock is convertible into Common
Stock, the Company will reserve and keep available at all times,
free of preemptive rights or other similar rights, a sufficient
number of shares of Common Stock for the purpose of enabling the
Company to satisfy any obligations to issue such shares upon
conversion of the Preferred Stock.
(m) If the Preferred Stock is convertible into Common
Stock, the Company will use its best efforts to list the shares
of Common Stock issuable upon conversion of the Preferred Stock
on the New York Stock Exchange or such other national exchange on
which the Company's Common Stock is then listed.
(n) The Company has complied and will comply with all of
the provisions of Florida H.B. 1771, Section 1, paragraph 17,130 of the
Florida Securities and Investors Act, and all regulations
thereunder relating to issuers doing business with Cuba.
(o) The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner
specified in the Prospectus under the caption "Use of Proceeds."
Section 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under
this Agreement or the applicable Terms Agreement, including (i)
the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the cost of
printing, filing and distributing to the Underwriters copies of
this Agreement and the applicable Terms Agreement, (iii) the
preparation, issuance and delivery of the Underwritten Securities
to the Underwriters, (iv) the fees and disbursements of the
Company's counsel and accountants, (v) the qualification of the
Underwritten Securities and the Common Stock issuable upon
conversion of the Preferred Stock, if any, under securities laws
and real estate syndication laws in accordance with the
provisions of Section 3(g), including filing fees and the fees
and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of
each amendment thereto, and of the Prospectus and any amendments
or supplements thereto, (vii) the cost of reproducing and
distributing to the Underwriters copies of the Blue Sky Survey,
(viii) any fees charged by nationally recognized statistical
rating organizations for the rating of the Securities, (ix) the
fees and expenses, if any, incurred with respect to the listing
of the Underwritten Securities or the Common Stock issuable upon
conversion of the Preferred Stock, if any, on any national
securities exchange, and (x) the fees and expenses, if any,
incurred with respect to any filing with the National Association
of Securities Dealers, Inc.
If the applicable Terms Agreement is canceled or terminated
by you in accordance with the provisions of Section 5 or Section
9(b)(i), the Company shall reimburse the Underwriters named in
such Terms Agreement for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for
the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase Underwritten
Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the
Company herein contained, to the accuracy of the statements of
the Company's officers made in any certificate pursuant to the
provisions hereof, to the performance by the Company of all of
its covenants and other obligations hereunder, and to the
following further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission and (ii) if Preferred Stock is being
offered, the rating assigned by any nationally recognized
statistical rating organization to any preferred stock of the
Company as of the date of the applicable Terms Agreement shall
not have been lowered since such date nor shall any such rating
organization have publicly announced that it has placed the
Company on what is commonly termed a "watch list" for possible
downgrading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time,
of Hunton & Williams, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation and in good standing
under the laws of the Commonwealth of Virginia, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus as amended or supplemented.
(ii) The Company is duly qualified to transact
business in all jurisdictions in which the conduct of
its business requires such qualification, or in which
the failure to qualify would have a materially adverse
effect upon the business of the Company.
(iii) Each subsidiary of the Company has been duly
organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and
other) to own its properties and conduct its business
as described in the Prospectus as amended or
supplemented; each such subsidiary is duly qualified to
transact business in all jurisdictions in which the
conduct of its business requires such qualification, or
in which the failure to qualify would have a materially
adverse effect upon the business of such subsidiary;
all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned
by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(iv) The Company has authorized and outstanding
capital stock as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements or the
exercise of convertible securities referred to in the
Registration Statement including, without limitation,
exercise of stock options, granting of stock options or
issuance of shares pursuant to the Company's dividend
reinvestment plan); the authorized capital stock of the
Company has been duly authorized; and the outstanding
shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable and are not subject to preemptive or
other similar rights arising by operation of law or, to
the best of such counsel's knowledge, otherwise.
(v) The applicable Underwritten Securities have
been duly and validly authorized by all necessary
corporate action and, when issued and delivered
pursuant to this Agreement against payment of the
consideration therefor specified in the applicable
Terms Agreement or the Delayed Delivery Contracts, the
applicable Underwritten Securities will be validly
issued, fully paid and non-assessable; and the
Preferred Stock, if applicable, conforms to the
provisions of the Articles of Amendment.
(vi) If applicable, the shares of Common Stock
issuable upon conversion of any of the Preferred Stock
have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all
necessary corporate action and such shares, when issued
upon such conversion or exercise, will be duly and
validly issued and will be fully paid and non-
assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to
preemptive or other similar rights arising by operation
of law or, to the best of such counsel's knowledge,
otherwise.
(vii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any,
has been duly authorized, executed and delivered by the
Company.
(viii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The Registration Statement and the
Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or
issue dates, comply as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations; it being understood, however, that no
opinion need be rendered with respect to the financial
statements, schedules and other financial and
statistical data included or incorporated by reference
in the Registration Statement or the Prospectus.
(x) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and
other financial and statistical data included therein,
as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed (or as when
amended prior to the Representation Date) as to form in
all material respects with the 1934 Act and the 1934
Act Regulations.
(xi) If applicable, the relative rights,
preferences, interests and powers of the Preferred
Stock are as set forth in the Articles of Amendment
relating thereto, and all such provisions are valid
under applicable Virginia law; and the form of
certificate used to evidence the Preferred Stock is in
due and proper form under applicable Virginia law, and
complies in all material respects with all applicable
statutory requirements.
(xii) The Underwritten Securities and the Common
Stock issuable upon conversion of the Preferred Stock
conform in all material respects to the statements
relating thereto contained in the Prospectus.
(xiii) To the best of such counsel's knowledge and
information, there are no legal or governmental
proceedings pending or threatened which are required to
be disclosed in the Prospectus, other than those dis-
closed therein, and all pending legal or governmental
proceedings to which the Company or any of its
subsidiaries is a party or of which any of the property
of the Company or its subsidiaries is the subject which
are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are,
considered in the aggregate, not material to the
business of the Company and its subsidiaries considered
as one enterprise.
(xiv) To the best of such counsel's knowledge and
information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in
the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement other
than those described or referred to therein or filed as
exhibits thereto, the descriptions thereof or
references thereto are correct, and, to the best of
such counsel's knowledge and information, no default
exists in the due performance or observance of any
obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument so described, referred
to or filed which would have a material adverse effect
on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise.
(xv) No authorization, approval or consent of any
court or governmental authority or agency is required
that has not been obtained in connection with the
consummation by the Company of the transactions
contemplated by this Agreement and the applicable Terms
Agreement, except such as may be required under the
1933 Act, the 1934 Act and state securities laws or
real estate syndication laws; and to the best of such
counsel's knowledge and information, the execution and
delivery of this Agreement and the applicable Terms
Agreement and the consummation of the transactions
contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder
will not conflict with or constitute a breach of, or
default under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries
pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by
which they may be bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such action result in violation of
the provisions of the Articles of Incorporation or By-
Laws of the Company or any law, administrative
regulation or court decree.
(xvi) The Company is not required to be registered
under the 1940 Act.
(xvii) The statements under the captions
"Description of Capital Stock" and "Certain Federal
Income Tax Consequences" in the Prospectus, insofar as
such statements constitute a summary of documents
referred to therein or matters of law, are accurate
summaries and fairly and correctly present the
information called for with respect to such documents
and matters.
(2) The favorable opinion, dated as of Closing Time,
of Hunton & Williams, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to
the effect that the Company has qualified to be taxed as a
real estate investment trust pursuant to Sections 856
through 860 of the Code for its most recently ended fiscal
year and for the four fiscal years immediately preceding
such year, and the Company's organization and contemplated
method of operation are such as to enable it to continue to
so qualify for its current fiscal year.
(3) The favorable opinion, dated as of the Closing
Time, of Brown & Wood, counsel for the Underwriters, with
respect to the matters set forth in (i), (v) to (ix),
inclusive, and (xii) of subsection (b)(1) of this Section.
In rendering their opinion, Brown & Wood may rely as to
matters of Virginia law upon the opinion of Hunton &
Williams.
(4) In giving their opinions required by subsections
(b)(1) and (b)(3), respectively, of this Section, Hunton &
Williams and Brown & Wood shall each additionally state that
nothing has come to their attention that would lead them to
believe that the Registration Statement or any amendment
thereto (excluding the financial statements and financial
schedules included or incorporated by reference therein, as
to which such counsel need express no belief), at the time
it became effective or at the time an Annual Report on Form
10-K was filed by the Company with the Commission (whichever
is later), or at the Representation Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (excluding
the financial statements and financial schedules included or
incorporated by reference therein, as to which such counsel
need express no belief), at the Representation Date or at
Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(c) At Closing Time, there shall not have been, since the
date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; and
you shall have received a certificate of the President and Chief
Executive Officer and the Senior Vice President and Chief
Financial Officer of the Company, dated as of such Closing Time,
to the effect that (i) there has been no such material adverse
change and (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though
such Closing Time were a Representation Date. As used in this
Section 5(c), the term "Prospectus" means the Prospectus in the
form first used to confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms
Agreement, you shall have received from Ernst & Young a letter
dated such date, in form and substance satisfactory to you, to
the effect that (i) they are independent accountants with respect
to the Company and its subsidiaries within the meaning of the
1933 Act and the 1933 Act Regulations; (ii) it is their opinion
that the consolidated financial statements and supporting
schedules of the Company included or incorporated by reference in
the Registration Statement and the Prospectus and covered by
their opinions therein comply in form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the
latest available unaudited interim consolidated financial
statements of the Company, a reading of the minute books of the
Company, inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, and on the basis of such limited review and procedures
nothing came to their attention that caused them to believe that
(A) the unaudited financial statements and financial statement
schedules of the Company included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, (B)
the unaudited operating data and balance sheet data of the
Company in the Registration Statement and the Prospectus under
the caption "Selected Financial Data" were not determined on a
basis substantially consistent with that used in determining the
corresponding amounts in the audited financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus, (C) at a specified date not more
than five days prior to the date of the applicable Terms
Agreement, there has been any change in the capital stock of the
Company or in the consolidated long-term debt or short-term
borrowings of the Company or any decrease in the net assets of
the Company, as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus or,
during the period from the date of the most recent consolidated
statement of operations included or incorporated by reference in
the Registration Statement and the Prospectus to a specified date
not more than five days prior to the date of the applicable Terms
Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated net
revenues, rental income or operating profit or decrease in the
total or per share amounts of net income or income before gains
(losses) on investments and extraordinary items of the Company,
except in all instances for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the audit referred
to in their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included
or incorporated by reference in the Registration Statement and
the Prospectus and which are specified by you, and have found
such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such
letter.
(e) At Closing Time, you shall have received from Ernst &
Young a letter dated as of such Closing Time to the effect that
they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the
"specified date" referred to shall be a date not more than five
days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Underwritten Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance
and sale of the Underwritten Securities as herein contemplated
shall be satisfactory in form and substance to you and counsel
for the Underwriters.
(g) In the event the Underwriters exercise their option
provided in a Terms Agreement as set forth in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company
hereunder shall be true and correct as of each Date of Delivery,
and you shall have received:
(1) A certificate, dated such Date of Delivery, of the
President and Chief Executive Officer and the Senior Vice
President and Chief Financial Officer of the Company, in
their capacities as such, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinions of Hunton & Williams,
counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities and otherwise
substantially to the same effect as the opinions required by
Sections 5(b)(1) and 5(b)(2) hereof.
(3) The favorable opinion of Brown & Wood, counsel for
the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b)(3) hereof.
(4) A letter from Ernst & Young, in form and substance
satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter
furnished to you pursuant to Section 5(e) hereof, except
that the "specified date" in the letter furnished pursuant
to this Section 5(g)(4) shall be a date not more than five
days prior to such Date of Delivery.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement may be terminated by you by notice to
the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any un-
true statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission, or alleged omission therefrom, of
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission referred to
in subsection (1) above, or any such alleged untrue
statement or omission, if such settlement is effected with
the written consent of the Company; and
(3) against any and all expense whatsoever, as
incurred (including, the fees and disbursements of counsel
chosen by you), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceedings by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who
signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933
Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through you expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability which it
may have otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters with
respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such
proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount appearing on the cover page of the applicable Prospectus
Supplement in respect of such offering bears to the initial
public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which
the Underwritten Securities purchased by it pursuant to the
applicable Terms Agreement 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 in respect of
such losses, liabilities, claims, damages and expenses. For
purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement or the applicable Terms Agreement, or
contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or
investigation made by or on behalf of any Underwriter or any
controlling person, or by or on behalf of the Company and shall
survive delivery of and payment for the Underwritten Securities
to the Underwriters.
Section 9. Termination of Agreement. (a) This Agreement
(excluding the applicable Terms Agreement) may be terminated for
any reason at any time by the Company or by you upon the giving
of 30 days' written notice of such termination to the other party
hereto; provided that this Agreement may not be terminated prior
to the Closing Time set forth in any applicable Terms Agreement.
(b) You may also terminate the applicable Terms Agreement,
by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United
States or any outbreak of hostilities or other calamity or crisis
or escalation of any existing hostilities, the effect of which is
such as to make it, in your judgment, impracticable to market the
Underwritten Securities or enforce contracts for the sale of the
Underwritten Securities, or (iii) if trading in any of the
securities of the Company has been suspended by the Commission or
the New York Stock Exchange, or if trading generally on either
the New York Stock Exchange or the American Stock Exchange has
been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or Virginia
authorities, or (iv) if Preferred Stock is being offered and the
rating assigned by any nationally recognized statistical rating
organization to any preferred stock of the Company as of the date
of the applicable Terms Agreement shall have been lowered since
such date or if any such rating organization shall have publicly
announced that it has placed any preferred stock of the Company
on what is commonly termed a "watch list" for possible
downgrading. As used in this Section 9(b), the term "Prospectus"
means the Prospectus in the form first used to confirm sales of
the Underwritten Securities.
(t In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of
Underwritten Securities shall remain in effect so long as any
Underwriter owns any such Underwritten Securities purchased from
the Company pursuant to the applicable Terms Agreement and (y)
the covenant set forth in Section 3(h) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections
8 and 13 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time to
purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then you shall have the right, within 48
hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities
in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, you shall not have completed such
arrangements within such 48-hour period, then:
(a) if the total number of Defaulted Securities does not
exceed 10% of the total number of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10%
of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement
shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default
under this Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the
Company shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
c/o [name and address of Representative], attention of
______________________________; and notices to the Company shall
be directed to it at 10 South 6th Street, Suite 203, Richmond,
Virginia 23219, attention of John P. McCann, President and Chief
Executive Officer.
Section 12. Parties. This Agreement and the applicable
Terms Agreement shall inure to the benefit of and be binding upon
you and the Company and any Underwriter who becomes a party to
such Terms Agreement, and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable Terms
Agreement is intended or shall be construed to give any person,
firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or such Terms Agreement or any provision herein or
therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors and
said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified
times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the
applicable Terms Agreement may be executed in one or more
counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counter-
part hereof, whereupon this instrument along with all counter-
parts will become a binding agreement between you and the Company
in accordance with its terms.
Very truly yours,
UNITED DOMINION REALTY TRUST, INC.
By:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[Names[s] of Representative[s]]
By:
Exhibit A
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
[Title of Securities]
TERMS AGREEMENT
Dated: _____________, 199__
To: United Dominion Realty Trust, Inc.
10 South 6th Street, Suite 203
Richmond, Virginia 23219
Attention: President and Chief Executive Officer
Dear Sirs:
We (the "Representative[s]") understand that United Dominion
Realty Trust, Inc., a Virginia corporation (the "Company"),
proposes to issue and sell the number of its [shares of common
stock (the "Common Stock")] [shares of preferred stock (the
"Preferred Stock")] (such [Common Stock]) [Preferred Stock] being
collectively hereinafter [also] referred to as the "Underwritten
Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below
(the "Underwriters") offer to purchase, severally and not
jointly, the respective numbers of [Initial Underwritten
Securities (as defined in the Underwriting Agreement referred to
below)] set forth below opposite their respective names, and a
proportionate share of Option Securities (as defined in the
Underwriting Agreement referred to below) to the extent any are
purchased, at the purchase price set forth below.
Number of Shares
of Initial
Underwriter Underwritten Securities
__________
Total $
The Underwritten Securities shall have the following terms:
[Common Stock] [Preferred Stock]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if
any, from , 19 .]
Purchase price per share: $ [, plus accumulated dividends, if any,
from , 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of Option Securities, if any, that may be purchased by the
Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee:]
Additional co-managers, if any:
Other terms:
Closing time, date and location:
All the provisions contained in the document attached as
Annex A hereto entitled "United Dominion Realty Trust, Inc.-
Common Stock and Preferred Stock-Underwriting Agreement" are
hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein
defined.
Please accept this offer no later than o'clock P.M. (New
York City time) on by signing a copy of this Terms
Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
[NAME[S] OF REPRESENTATIVE[S]
By:_________________________
Acting on behalf of [itself]
[themselves] and the other named
Underwriters.
Accepted:
UNITED DOMINION REALTY TRUST, INC.
By:_________________________
Name:
Title:
Exhibit B
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_____________, 19__
United Dominion Realty Trust, Inc.
10 South 6th Street, Suite 203
Richmond, Virginia 23219
Attention: President and Chief Executive Officer
Dear Sirs:
The undersigned hereby agrees to purchase from United
Dominion Realty Trust, Inc. (the "Company"), and the Company
agrees to sell to the undersigned on __________, 19__ (the
"Delivery Date"),
of the Company's [insert title of security] (the "Securities"),
offered by the Company's Prospectus dated __________, 19__, as
supplemented by its Prospectus Supplement dated ___________,
19__, receipt of which is hereby acknowledged, at a purchase
price of [$__________], on the Delivery Date, and on the further
terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed
to purchase on the Delivery Date shall be made to the Company or
its order by certified or official bank check in New York
Clearing House funds at the office of
, on the Delivery Date, upon delivery
to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date shall be subject
only to the conditions that (1) the purchase of Securities to be
made by the undersigned shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before
__________, 19__, shall have sold to the Underwriters of the
Securities (the "Underwriters") such principal amount of the
Securities as is to be sold to them pursuant to the Terms
Agreement dated __________, 19__ between the Company and the
Underwriters. The obligation of the undersigned to take delivery
of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments
for Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters,
the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a
copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the Company that all necessary action for the due
execution and delivery of this contract and the payment for and
purchase of the Securities has been taken by it and no further
authorization or approval of any governmental or other regulatory
authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and
mailing or delivery of a copy as provided below, this contract
will constitute a valid and binding agreement of the undersigned
in accordance with its terms.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that the Company will not accept Delayed
Delivery Contracts for a number of Securities in excess of
________ and that the acceptance of any Delayed Delivery Contract
is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address
set forth below. This will become a binding contract between the
Company and the undersigned when such copy is so mailed or
delivered.
This Agreement shall be governed by the laws of the State of
New York.
Yours very truly,
_____________________________
(Name of Purchaser)
By:__________________________
(Title)
_____________________________
_____________________________
(Address)
Accepted as of the date
first above written.
UNITED DOMINION REALTY TRUST, INC.
By:__________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may
be discussed are as follows: (Please print.)
Telephone No.
(including
Name Area Code)
Exhibit 4(i)(b)
PREFERRED STOCK PREFERRED STOCK
Number Shares
See reverse for certain definitions CUSIP ___________
UNITED DOMINION REALTY TRUST, INC.
Incorporated under the laws of the Commonwealth of Virginia
This certifies that is the owner
of
fully paid and non-assessable shares of [___%] Series [__]
[Cumulative] [Redeemable] [Convertible] Preferred Stock, no par
value, in
UNITED DOMINION REALTY TRUST, INC.
The holder and every transferee or assignee of this certificate
or shares represented hereby, or of any interest therein, accepts
and agrees to be bound by the provisions of the Articles of
Incorporation of the Company. This certificate and the shares
represented hereby are transferable on the books of the Company
by the registered holder hereof in person or by attorney upon
surrender of this certificate properly endorsed. This
certificate is not valid until countersigned and registered by
the Transfer Agent and registered by the Registrar.
In Witness Whereof, the Company has caused this certificate
to be signed by the facsimile signatures of its President and
Secretary.
Dated:
[Facsimile signature] [Facsimile signature]
Secretary President
Countersigned and registered:
[Name] Transfer Agent and Registrar
By
Authorized Signature
UNITED DOMINION REALTY TRUST, INC.
Under the Articles of Incorporation of the Company, transfer of
the shares represented hereby may be stopped, and such shares are
subject to redemption, in order to preserve the qualification of
the Company as a "real estate investment trust" under the
Internal Revenue Code.
The Company will furnish to the registered holder of this
certificate on request in writing, without charge, the
designations, relative rights, preferences and limitations
applicable to each class of authorized shares and the variations
in rights, preferences and limitations determined for each series
within a class (and the authority of the Board of Directors to
determine variations for future series).
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COMM -- as tenants in common UNIF GIFT MIN ACT -- ..Custodian ..
TEN ENT --as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to
survivorship and not as tenants Minors Act
in common
Additional abbreviations may also be used though not on the above list.
For Value Received, _____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
______________________________________________________________________________
_________________________________________________ Shares of
Preferred Stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint
_________________________________ Attorney to transfer the said
Shares on the books of the within-named Company with full power
of substitution in the premises.
Dated ___________________________
_______________________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the Certificate, in every
particular, without alteration or enlargement, or any change
whatever.
Exhibit 4(i)(f)
ARTICLES OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION OF
UNITED DOMINION REALTY TRUST, INC.
Under Section 13.1-639 of the Virginia Stock Corporation Act
1. The name of the corporation is United Dominion Realty Trust, Inc.
2. The corporation's Articles of Incorporation shall be amended to add a new
subsection (a) to Article 3 to read as follows:
(a) Series __ Preferred Stock.
(1) Designation and Number. A series of the preferred stock,
designated the "Series __ Preferred Stock" (the "Series __
Preferred"), is hereby established. The number of shares of the
Series __ Preferred shall be _______.
(2) Relative Seniority. In respect of rights to receive
dividends and to participate in distributions or payments in the event
of any liquidation, dissolution or winding up of the corporation, the
Series __ Preferred shall rank senior to the common stock and any
other class or series of stock of the corporation ranking, as to
dividends and upon liquidation, junior to the Series __ Preferred
(collectively, "Junior Stock").
(3) Dividends. The holders of the then outstanding Series __
Preferred shall be entitled to receive, when and as declared by the
Board of Directors out of any funds legally available therefor,
cumulative dividends at the rate of $______ per share per year,
payable in equal amounts of $_______ per share quarterly in cash on
the last day, or the next succeeding business day, of _____, _____,
_____ and _____ in each year, beginning _______________ (each such day
being hereinafter called a "Quarterly Dividend Date" and each period
ending on a Quarterly Dividend Date being hereinafter called a
"Dividend Period"), to shareholders of record at the close of business
on such date as shall be fixed by the Board of Directors at the time
of declaration of the dividend (the "Record Date"), which shall be not
less than __ nor more than __ days preceding the Quarterly Dividend
Date. The amount of any dividend payable for the initial Dividend
Period and for any other Dividend Period shorter than a full Dividend
Period shall be prorated and computed on the basis of a 360-day year
of twelve 30-day months. Dividends on each share of Series __
Preferred shall accrue and be cumulative from and including the date
of original issue thereof, whether or not (i) dividends on such shares
are earned or declared or (ii) on any Quarterly Dividend Date there
shall be funds legally available for the payment of dividends.
Dividends paid on the shares of Series __ Preferred in an amount less
than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a per share
basis among all such shares at the time outstanding.
The amount of any dividends accrued on any shares of Series __
Preferred at any Quarterly Dividend Date shall be the amount of any
unpaid dividends accumulated thereon, to and including such Quarterly
Dividend Date, whether or not earned or declared, and the amount of
dividends accrued on any shares of Series __ Preferred at any date
other than a Quarterly Dividend Date shall be equal to the sum of the
amount of any unpaid dividends accumulated thereon, to and including
the last preceding Quarterly Dividend Date, whether or not earned or
declared, plus an amount calculated on the basis of the annual
dividend rate of $______ for the period after such last preceding
Quarterly Dividend Date to and including the date as of which the
calculation is made, based on a 360-day year of twelve 30-day months.
Except as provided in these Articles, the Series __ Preferred
shall not be entitled to participate in the earnings or assets of the
corporation.
(4) Liquidation Rights.
(A) Upon the voluntary or involuntary dissolution, liquidation
or winding up of the corporation, the holders of shares of the Series
__ Preferred then outstanding shall be entitled to receive and to be
paid out of the assets of the corporation available for distribution
to its shareholders, before any payment or distribution shall be made
on any Junior Stock, the amount of $___ per share, plus accrued and
unpaid dividends thereon.
(B) After the payment to the holders of the shares of the Series
__ Preferred of the full preferential amounts provided for in this
paragraph (4), the holders of the Series __ Preferred as such shall
have no right or claim to any of the remaining assets of the
corporation.
(C) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the corporation, the amounts payable
with respect to the preference value of the shares of the Series __
Preferred and any other shares of stock of the corporation ranking as
to any such distribution on a parity with the shares of the Series __
Preferred are not paid in full, the holders of the shares of the
Series __ Preferred and of such other shares will share ratably in any
such distribution of assets of the corporation in proportion to the
full respective preference amounts to which they are entitled.
(D) Neither the sale of all or substantially all the property or
business of the corporation, nor the merger or consolidation of the
corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the corporation,
shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this paragraph (4).
(5) Redemption.
(A) Optional Redemption. The corporation may, at its option,
redeem at any time all or, from time to time, part of the Series __
Preferred at a price per share (the "Series __ Redemption Price"),
payable in cash, of $___, together with all accrued and unpaid
dividends to and including the date fixed for redemption (the "Series
__ Redemption Date").
(B) Procedures for Redemption.
(i) Notice of any redemption will be mailed by the corporation,
postage prepaid, not less than 30 nor more than 60 days prior to the
Series __ Redemption Date, addressed to the holders of record of the
Series __ Preferred to be redeemed at their addresses as they appear
on the stock transfer records of the corporation. No failure to give
such notice or any defect therein or in the mailing thereof shall
affect the validity of the proceedings for the redemption of any
Series __ Preferred except as to the holder to whom the corporation
has failed to give notice or except as to the holder to whom notice
was defective. In addition to any information required by law or by
the applicable rules of any exchange upon which Series __ Preferred
may be listed or admitted to trading, such notice shall state: (a)
the Series __ Redemption Date; (b) the Series __ Redemption Price; (c)
the number of shares of Series __ Preferred to be redeemed; (d) the
place or places where certificates for such shares are to be
surrendered for payment of the Series __ Redemption Price; (d) that
dividends on the shares to be redeemed will cease to accumulate on the
Series __ Redemption Date; and (e) the date on which conversion rights
shall expire, the conversion price and the place or places where
certificates for such shares are to be surrendered for conversion.
(ii) If notice has been mailed in accordance with subparagraph
(5)(B)(i) above and provided that on or before the Series __
Redemption Date specified in such notice all funds necessary for such
redemption shall have been irrevocably set aside by the corporation,
separate and apart from its other funds in trust for the pro rata
benefit of the holders of the shares of Series __ Preferred so called
for redemption, so as to be, and to continue to be available therefor,
then, from and after the Series __ Redemption Date, dividends on the
Series __ Preferred so called for redemption shall cease to
accumulate, and said shares shall no longer be deemed to be
outstanding and shall not have the status of Series __ Preferred and
all rights of the holders thereof as shareholders of the corporation
(except the right to receive the Series __ Redemption Price) shall
cease. Upon surrender, in accordance with said notice, of the
certificates for any shares of Series __ Preferred so redeemed
(properly endorsed or assigned for transfer, if the corporation shall
so require and the notice shall so state), such shares of Series __
Preferred shall be redeemed by the corporation at the Series __
Redemption Price. In case fewer than all the shares of Series __
Preferred represented by any such certificate are redeemed, a new
certificate or certificates shall be issued representing the
unredeemed shares of Series __ Preferred without cost to the holder
thereof.
(iii) Any funds deposited with a bank or trust company for
the purpose of redeeming Series __ Preferred shall be irrevocable
except that:
(a) the corporation shall be entitled to receive from such
bank or trust company the interest or other earnings, if any,
earned on any money so deposited in trust, and the holders of any
shares redeemed shall have no claim to such interest or other
earnings; and
(b) any balance of monies so deposited by the corporation
and unclaimed by the holders of the Series __ Preferred entitled
thereto at the expiration of two years from the applicable Series
__ Redemption Date shall be repaid, together with any interest or
other earnings earned thereon, to the corporation, and after any
such repayment, the holders of the shares entitled to the funds
so repaid to the corporation shall look only to the corporation
for payment without interest or other earnings.
(iv) No Series __ Preferred may be redeemed except with funds
legally available for the payment of the Series __ Redemption Price.
(v) Unless full accumulated dividends on all shares of Series __
Preferred shall have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for
payment for all past Dividend Periods and the then current Dividend
Period, no Series __ Preferred shall be redeemed (unless all
outstanding shares of Series __ Preferred are simultaneously redeemed)
or purchased or otherwise acquired directly or indirectly (except by
conversion into or exchange for capital stock of the corporation
ranking junior to the Series __ Preferred as to dividends and upon
liquidation); provided, however, that the foregoing shall not prevent
the redemption of Series __ Preferred pursuant to Article 4 or the
purchase or acquisition of Series __ Preferred pursuant to a purchase
or exchange offer made on the same terms to holders of all outstanding
shares of Series __ Preferred.
(vi) If the Series __ Redemption Date is after a Record Date and
before the related Quarterly Dividend Date, the dividend payable on
such Quarterly Dividend Date shall be paid to the holder in whose name
the shares of Series __ Preferred to be redeemed are registered at the
close of business on such Record Date notwithstanding the redemption
thereof between such Record Date and the related Quarterly Dividend
Date or the corporation's default in the payment of the dividend due.
(vii) In case of redemption of less than all shares of Series
__ Preferred at the time outstanding, the shares of Series __
Preferred to be redeemed shall be selected pro rata from the holders
of record of such shares in proportion to the number of shares of
Series __ Preferred held by such holders (with adjustments to avoid
redemption of fractional shares) or by any other equitable method
determined by the corporation.
(6) Voting Rights. Except as required by the Act, the holders
of the Series __ Preferred shall not be entitled to vote at any
meeting of the shareholders for election of directors or for any other
purpose or otherwise to participate in any action taken by the
corporation or the shareholders thereof, or to receive notice of any
meeting of shareholders.
(7) Conversion of Series __ Preferred into Common Stock. To be
determined.
3. The amendment of the Articles of Incorporation was duly adopted by the
Board of Directors of the corporation on ________________. Shareholder action
was not required.
Dated __________________________
UNITED DOMINION REALTY TRUST, INC.
By:
John P. McCann
President
Exhibit 4(i)(n)
UNITED DOMINION REALTY TRUST, INC.
TO
CRESTAR BANK
Trustee
Indenture
Dated as of August 1, 1994
Subordinated Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
Acquired Debt . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . 3
Consolidated Income Available for Debt
Service . . . . . . . . . . . . . . . 3
Conversion Event . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . 3
corporation . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . 4
DTC . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . 4
European Monetary System . . . . . . . . 4
Event of Default . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . 4
GAAP . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . 6
Make-Whole Amount . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . 6
i
Opinion of Counsel . . . . . . . . . . . 6
Original Issue Discount Security . . . . 6
Outstanding . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . 8
Repayment Date . . . . . . . . . . . . . 8
Repayment Price . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . 9
Securities Act . . . . . . . . . . . . . 9
Security . . . . . . . . . . . . . . . . 9
Security Register and Security
Registrar . . . . . . . . . . . . . . 9
Senior Debt . . . . . . . . . . . . . . 9
Significant Subsidiary . . . . . . . . . 10
Special Record Date . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . 10
Trust . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA . . . . . . . 10
Trust Request and Trust Order . . . . . 10
Trustee . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . 11
United States person . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions . . . 11
SECTION 103. Form of Documents Delivered to Trustee . . 12
SECTION 104. Acts of Holders . . . . . . . . . . . . . 12
SECTION 105. Notices, etc., to Trustee and Trust . . . 14
SECTION 106. Notice to Holders; Waiver . . . . . . . . 14
SECTION 107. Effect of Headings and Table of Contents . 15
SECTION 108. Successors and Assigns . . . . . . . . . . 16
SECTION 109. Separability Clause . . . . . . . . . . . 16
SECTION 110. Benefits of Indenture . . . . . . . . . . 16
SECTION 111. No Personal Liability . . . . . . . . . . 16
SECTION 112. Governing Law . . . . . . . . . . . . . . 16
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 16
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . 17
SECTION 203. Securities Issuable in Global Form . . . . 18
ii
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication Delivery and
Dating . . . . . . . . . . . . . . . . . 23
SECTION 304. Temporary Securities . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . 31
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . 32
SECTION 308. Persons Deemed Owners . . . . . . . . . . 34
SECTION 309. Cancellation . . . . . . . . . . . . . . . 35
SECTION 310. Computation of Interest . . . . . . . . . 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . 36
SECTION 402. Application of Trust Funds . . . . . . . . 37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . 37
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . 39
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . 40
SECTION 504. Trustee May File Proofs of Claim . . . . . 41
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . 42
SECTION 506. Application of Money Collected . . . . . . 42
SECTION 507. Limitation on Suits . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole
Amount, if any, Interest and Additional
Amounts . . . . . . . . . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . 44
SECTION 511. Delay or Omission Not Waiver . . . . . . . 44
SECTION 512. Control by Holders of Securities . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . 45
SECTION 514. Waiver of Usury, Stay or Extension Laws . 45
SECTION 515. Undertaking for Costs . . . . . . . . . . 46
iii
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . 46
SECTION 602. Certain Rights of Trustee . . . . . . . . 46
SECTION 603. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . 48
SECTION 604. May Hold Securities . . . . . . . . . . . 48
SECTION 605. Money Held in Trust . . . . . . . . . . . 48
SECTION 606. Compensation and Reimbursement . . . . . . 48
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . 49
SECTION 608. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . 49
SECTION 609. Acceptance of Appointment By Successor . . 51
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 52
SECTION 611. Appointment of Authenticating Agent . . . 53
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . . 54
SECTION 702. Reports by Trustee . . . . . . . . . . . . 55
SECTION 703. Reports by Trust . . . . . . . . . . . . . 55
SECTION 704. Trust to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . 55
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Trust and
Sales, Leases and Conveyances Permitted
Subject to Certain Conditions . . . . . 56
SECTION 802. Rights and Duties of Successor
Corporation . . . . . . . . . . . . . . 56
SECTION 803. Officers' Certificate and Opinion of
Counsel . . . . . . . . . . . . . . . . 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . 57
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . 59
SECTION 903. Execution of Supplemental Indentures . . . 60
iv
SECTION 904. Effect of Supplemental Indentures . . . . 60
SECTION 905. Conformity with Trust Indenture Act . . . 60
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . 61
SECTION 907. Notice of Supplemental Indentures . . . . 61
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-
Whole Amount, if any, Interest and
Additional Amounts . . . . . . . . . . . 61
SECTION 1002. Maintenance of Office or Agency . . . . . 61
SECTION 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . 63
SECTION 1004. [Omitted] . . . . . . . . . . . . . . . . 65
SECTION 1005. Existence . . . . . . . . . . . . . . . . 65
SECTION 1006. Maintenance of Properties . . . . . . . . 65
SECTION 1007. Insurance . . . . . . . . . . . . . . . . 65
SECTION 1008. Payment of Taxes and Other Claims . . . . 65
SECTION 1009. Provision of Financial Information . . . . 66
SECTION 1010. Statement as to Compliance . . . . . . . . 66
SECTION 1011. Additional Amounts . . . . . . . . . . . . 66
SECTION 1012. Waiver of Certain Covenants . . . . . . . 67
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . 68
SECTION 1102. Election to Redeem; Notice to Trustee . . 68
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . 68
SECTION 1104. Notice of Redemption . . . . . . . . . . . 69
SECTION 1105. Deposit of Redemption Price . . . . . . . 70
SECTION 1106. Securities Payable on Redemption Date . . 71
SECTION 1107. Securities Redeemed in Part . . . . . . . 71
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . 72
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . 72
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . 73
ARTICLE THIRTEEN
v
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . 73
SECTION 1302. Repayment of Securities . . . . . . . . . 73
SECTION 1303. Exercise of Option . . . . . . . . . . . . 74
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . 74
SECTION 1305. Securities Repaid in Part . . . . . . . . 75
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Trust's Option
to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . 76
SECTION 1402 Defeasance and Discharge . . . . . . . . . 76
SECTION 1403. Covenant Defeasance . . . . . . . . . . . 77
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . 77
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . 79
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . 80
SECTION 1502. Call, Notice and Place of Meetings . . . . 80
SECTION 1503. Persons Entitled to Vote at Meetings . . . 81
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . 81
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . 82
SECTION 1506. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . 83
SECTION 1507. Evidence of Action Taken by Holders . . . 83
SECTION 1508. Proof of Execution of Instruments . . . . 84
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate . . . . . . . . . 84
SECTION 1602. Liquidation; Dissolution; Bankruptcy . . . 84
SECTION 1603. Default on Senior Debt . . . . . . . . . . 84
SECTION 1604. Acceleration of Securities . . . . . . . . 85
SECTION 1605. When Distribution Must Be Paid Over . . . 85
SECTION 1606. Notice by Trust . . . . . . . . . . . . . 85
SECTION 1607. Subrogation . . . . . . . . . . . . . . . 85
SECTION 1608. Relative Rights . . . . . . . . . . . . . 86
vi
SECTION 1609. Subordination May Not Be Impaired by
Trust . . . . . . . . . . . . . . . . . 86
SECTION 1610. Distribution or Notice to Representative . 86
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A FORMS OF CERTIFICATION
vii
UNITED DOMINION REALTY TRUST, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as
amended (the "1939 Act"), and Indenture, dated as of
April 1, 1994
Trust Indenture Act Section Indenture Section
(Section) 310 (a)(1) . . . . . . . . . . . . . . . . . . 607(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 607(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 607(b), 608
(Section) 312 (c) . . . . . . . . . . . . . . . . . . . . . . 701
(Section) 314 (a) . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 1011
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(Section) 315 (b) . . . . . . . . . . . . . . . . . . . . . . 601
(Section) 316 (a) (last sentence) . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(Section) 317 (a)(1). . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(Section) 318 (a) . . . . . . . . . . . . . . . . . . . . . . 112
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 112
__________________________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the
1939 Act, which provides that the provisions of Sections
310 to and including 317 of the 1939 Act are a part of and
govern every qualified indenture, whether or not physically
contained therein.
viii
INDENTURE, dated as of August 1, 1994, between UNITED
DOMINION REALTY TRUST, INC., a Virginia corporation (hereinafter
called the "Trust"), having its principal office at 10 South
Sixth Street, Suite 203, Richmond, Virginia 23219-3802, and
CRESTAR BANK, a Virginia banking corporation, as Trustee
hereunder (hereinafter called the "Trustee"), having its
Corporate Trust Office at 919 East Main Street, Richmond,
Virginia 23219.
RECITALS OF THE TRUST
The Trust deems it necessary to issue from time to time for
its lawful purposes subordinated debt securities (hereinafter
called the "Securities") evidencing its unsecured subordinated
indebtedness, and has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time
of the Securities, unlimited as to aggregate principal amount, to
bear interest at the rates or formulas, to mature at such times
and to have such other provisions as shall be fixed therefor as
hereinafter provided.
All things necessary to make this Indenture a valid
agreement of the Trust, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the TIA, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in those Articles.
In addition, the following terms shall have the indicated
respective meanings:
"Acquired Debt" means Debt of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in
each case, other than Debt incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the
date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security, under circumstances specified therein, to
be paid by the Trust in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of
publication, customarily published on each Business Day, whether
or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the
term is used or in the financial community of each such place.
Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in
the same or in different Authorized Newspapers in the same city
2
meeting the foregoing requirements and in each case on any
Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to
bearer.
"Board of Directors" means the Board of Directors of the
Trust, the executive committee or any other committee of that
board duly authorized to act for it in respect hereof.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Trust to have been
duly adopted by the Board of Directors, and to be in full force
and effect on the date of such certification, and delivered to
the Trustee.
"Business Day," when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 301, any day,
other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions in that Place of Payment
or particular location are authorized or required by law,
regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any
capital stock (including preferred stock), shares, interests,
participations or other ownership interests (however designated)
of such Person and any rights (other than debt securities
convertible or exchangeable for corporate stock), warrants or
options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act,
or, if at any time after execution of this instrument such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing
such duties on such date.
"Conversion Event" means the cessation of use of (i) a
Foreign Currency (other than the ECU or other currency unit) both
by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other
public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System
and for the settlement of transactions by public institutions of
or within the European Communities or (iii) any currency unit (or
3
composite currency) other than the ECU for the purposes for which
it was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is
located at 919 East Main Street, Richmond, Virginia 23219.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning set forth in Section 501.
"Defaulted Interest"has the meaning specifiedin Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the
time shall be legal tender for payment of public and private
debts.
"DTC" means The Depository Trust Company.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear
System.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
"European Monetary System" means the European Monetary
System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
"Event of Default" has the meaning specified in Article
Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by
the Commission.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU,
issued by the government of one or more countries other than the
4
United States of America or by any recognized confederation or
association of such governments.
"GAAP" means generally accepted accounting principles as
used in the United States applied on a consistent basis as in
effect from time to time; provided, that solely for purposes of
any calculation required by the financial covenants contained
herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof,
applied on a consistent basis.
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the
Securities of a particular series are payable, for the payment of
which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such
government which issued the Foreign Currency in which the
Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States of America or such other government, which,
in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to
any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security
Register and, in the case of a Bearer Security, the bearer
thereof and, when used with respect to any coupon, shall mean the
bearer thereof.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of
particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as
originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
5
hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the or those particular series of
Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of
when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee,
was not a party.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount
thereof at original issuance.
"interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, shall mean interest payable after Maturity, and, when
used with respect to a Security which provides for the payment of
Additional Amounts pursuant to Section 1011, includes such
Additional Amounts.
"Interest Payment Date" means, when used with respect to any
Security, the Stated Maturity of an installment of interest on
such Security.
"Make-Whole Amount" means the amount, if any, in addition to
principal which is required by a Security, under the terms and
conditions specified therein or as otherwise specified as
contemplated by Section 301, to be paid by the Trust to the
Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"Maturity" means, when used with respect to any Security,
the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary of an Assistant Secretary, of the Trust,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Trust or other counsel
satisfactory to the Trustee.
6
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption or repayment at the option of the
Holder money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than
the Trust) in trust or set aside and segregated in trust by
the Trust (if the Trust shall act as its own Paying Agent)
for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or other provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except solely to the extent
provided in Sections 1402 or 1403, as applicable, with
respect to which the Trust has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Trust; and
(v) Securities converted into Capital Stock of
the Trust pursuant to or in accordance with this Indenture
if the terms of such Securities provide for convertibility
pursuant to Section 301;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of
Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal
amount of an Original Issue Discount Security that may be counted
in making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the
7
amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar
equivalent, determined pursuant to Section 301 as of the date
such Security is originally issued by the Trust, of the principal
amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent as of such date of original issuance of the
amount determined as provided in clause (i) above) of such
Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and
that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Indexed
Security pursuant to Section 301, and (iv) Securities owned by
the Trust or any other obligor upon the Securities or any
Affiliate of the Trust or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the
Trust or any other obligor upon the Securities or any Affiliate
of the Trust or of such other obligor.
"Paying Agent" means any Person authorized by the Trust to
pay the principal of (and premium or Make-Whole Amount, if any)
or interest on any Securities or coupons on behalf of the Trust,
or if no such Person is authorized, the Trust.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-
stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the
principal of (and premium or Make-Whole Amount, if any)
and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
8
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains.
"Redemption Date" means, when used with respect to any
Security to be redeemed in whole or in part, the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any
Security to be redeemed, the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security which is registered
in the Security Register.
"Regular Record Date" for the installment of interest
payable on any Interest Payment Date on the Registered Securities
of or within any series means the date specified for that purpose
as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any
Security to be repaid or repurchased at the option of the Holder,
the date fixed for such repayment or repurchase by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid or purchased at the option of the Holder,
the price at which it is to be repaid or repurchased by or
pursuant to this Indenture.
"Representative" means the indenture trustee or other
trustee, agent or representative for an issue of Senior Debt.
"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder by
the Commission.
"Security" has the meaning stated in the first recital of
this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture;
provided, however, that, if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture
9
and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities
of or within any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" means the principal of and interest on, or
substantially similar payments to be made by the Trust in respect
of, the following, whether outstanding at the date of execution
of this Indenture or thereafter incurred, created or assumed: (a)
indebtedness of the Trust for money borrowed or represented by
purchase-money obligations, (b) indebtedness of the Trust
evidenced by notes, debentures, or bonds, or other securities
issued under the provisions of an indenture, fiscal agency
agreement or other instrument, (c) obligations of the Trust as
lessee under leases of property either made as part of any sale
and lease-back transaction to which the Trust is a party or
otherwise, (d) indebtedness of partnerships and joint ventures
which is included in the Trust's consolidated financial
statements, (e) indebtedness, obligations and liabilities of
others in respect of which the Trust is liable contingently or
otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Trust has agreed to purchase
or otherwise acquire, and (f) any binding commitment of the Trust
to fund any real estate investment or to fund any investment in
any entity making such real estate investment; but excluding,
however, (1) any such indebtedness, obligation or liability
referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such indebtedness,
obligation or liability is not superior in right of payment to
the Securities, or ranks pari passu with the Securities, (2) any
such indebtedness, obligation or liability which is subordinated
to indebtedness of the Trust to substantially the same extent as
or to a greater extent than the Securities are subordinated and
(3) the Securities. As used in the preceding sentence the term
"purchase-money obligations" shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security
interest but excluding indebtedness or obligations for which
recourse is limited to the property purchased) issued or assumed
as all or a part of the consideration for the acquisition of
property, whether by purchase, merger, consolidation or
otherwise, but shall not include any trade accounts payable. A
distribution may consist of cash, securities or other property.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (within the meaning of Regulation S-X,
promulgated under the Securities Act) of the Trust.
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"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or interest
thereon, the date specified in such Security or a coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (a) the voting
power of the voting equity securities or (b) the outstanding
equity interests of which are owned, directly or indirectly, by
such Person. For the purposes of this definition, "voting equity
securities" means equity securities having voting power for the
election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any
contingency.
"Trust" means the Person named as the "Trust" in the first
paragraph of this Indenture until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trust" shall mean such successor
corporation.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this
Indenture was executed, except as provided in Section 905.
"Trust Request" and "Trust Order" mean, respectively, a
written request or order signed in the name of the Trust by the
President or a Vice President of the Trust, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Trust, and delivered to the Trustee.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder; provided, however, that
if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of or within any series shall
mean only the Trustee with respect to the Securities of that
series.
"United States" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, the United
States of America (including the states and the District of
Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
11
"United States person" means, unless otherwise specified
with respect to any Securities pursuant to Section 301, an
individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in
or under the laws of the United States or an estate or trust the
income of which is subject to United States federal income
taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the
most recent redetermination of interest on such Security) and as
set forth in such Security in accordance with generally accepted
United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Trust to the Trustee
to take any action under any provision of this Indenture, the
Trust shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture (including covenants, compliance with which
constitute conditions precedent) relating to the proposed action
have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (excluding
certificates delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Trust may be
based, insofar as it relates to legal matters, upon an Opinion of
Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the opinion, certificate or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel or certificate
or representations may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Trust stating that the information
as to such factual matters is in the possession of the Trust,
unless such counsel knows that the certificate or opinion or
representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of the Outstanding
Securities of all series or one or more series, as the case
may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing.
If Securities of a series are issuable as Bearer Securities,
any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in
favor thereof, whether in person or by proxies duly
appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance
with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become
13
effective when such instrument or instruments or record or
both are delivered to the Trustee and, where it is hereby
expressly required, to the Trust. Such instrument or
instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the
Trust and any agent of the Trustee or the Trust, if made in
the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be
proved in any other reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) The ownership of Bearer Securities may be proved
by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company,
bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of
the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Trust may assume that
such ownership of any Bearer Security continues until (1)
another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some
other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer
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Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the
Trustee deems sufficient.
(e) If the Trust shall solicit from the Holders of
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Trust
may, at its option, in or pursuant to a Board Resolution,
fix in advance a record date for the determination of
Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other
Act, but the Trust shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall
be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date
30 days prior to the first solicitation of Holders generally
in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall
be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security
and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Trust in
reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. Notices, etc., to Trustee and Trust.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
15
(1) the Trustee by any Holder or by the Trust shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) The Trust by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first
class postage prepaid, to the Trust addressed to it at the
address of its principal office specified in the first
paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Trust.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Trust or the Trustee,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his
address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders
of Bearer Securities given as provided herein. Any notice mailed
to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification
to Holders of Registered Securities as shall be made with the
approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301,
where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given
if published in an Authorized Newspaper in The City of New York
and in such other city or cities as may be specified in such
Securities, and if the Securities of such series are listed on
any stock exchange outside the United States, in any place at
which such Securities are listed on a securities exchange to the
extent that such securities exchange so requires, on a Business
Day, such publication to be not later than the latest date, and
16
not earlier than the earliest date, prescribed for the giving of
such notice. Any such notice shall be deemed to have been given
on the date of such publication or, if published more than once,
on the date of the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to any particular Holder of
Bearer Securities as provided above, nor any defect in any notice
so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency
of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Trust
shall bind its successors and assigns, whether so expressed or
not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security
or coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
17
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons
appertaining thereto, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar,
any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security or coupon
appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such or, against
any past, present or future shareholder, officer or director, as
such, of the Trust or of any successor, either directly or
through the Trust 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 112. Governing Law.
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the law of the
Commonwealth of Virginia. This Indenture is subject to the
provisions of the TIA that are required to be part of this
Indenture and shall, to the extent applicable, be governed by
such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity
or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of
this Indenture or any Security or coupon other than a provision
in the Securities of any series which specifically states that
such provision shall apply in lieu hereof), payment of interest
or any Additional Amounts or principal (and premium or Make-Whole
Amount, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repayment Date or sinking
fund payment date, or at the Stated Maturity or Maturity,
provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be.
18
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, and related coupons of each series,
shall be in substantially the forms as shall be established in or
pursuant to one or more indentures supplemental hereto or Board
Resolutions, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture or any indenture supplemental hereto, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as
the Trust may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any stock exchange on which the
Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
CRESTAR BANK, as Trustee
By
_____________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the
19
Outstanding Securities of such series as shall be specified
therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time
endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Trust Order to be
delivered to the Trustee pursuant to Section 303 or 304. Subject
to the provisions of Section 303 and, if applicable, Section 304,
the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Trust
Order. If a Trust Order pursuant to Section 303 or 304 has been,
or simultaneously is, delivered, any instructions by the Trust
with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Security in global form if
such Security was never issued and sold by the Trust and the
Trust delivers to the Trustee the Security in global form
together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of
Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium or Make-Whole Amount and interest on
any Security in permanent global form shall be made to the Person
or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Trust, the Trustee and
any agent of the Trust and the Trustee shall treat as the Holder
of such principal amount of Outstanding Securities represented by
a permanent global Security (i) in the case of a permanent global
Security in registered form, the Holder of such permanent global
Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
20
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to one or more Board
Resolutions, or indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters
set forth in clauses (1), (2) and (15) below), if so provided,
may be determined from time to time by the Trust with respect to
unissued Securities of or within the series when issued from time
to time):
(1) the title of the Securities of or within the
series (which shall distinguish the Securities of such
series from all other series of Securities);
(2) any limit upon the aggregate principal amount of
the Securities of or within the series that may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other
Securities of or within the series pursuant to Section 304,
305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such
date or dates will be determined, on which the principal of
the Securities of or within the series shall be payable and
the amount of principal payable thereon;
(4) the rate or rates at which the Securities of or
within the series shall bear interest, if any, or the method
by which such rate or rates shall be determined, the date or
dates from which such interest shall accrue or the method by
which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the
method by which such date shall be determined, and the basis
upon which interest shall be calculated if other than that
of a 360-day year consisting of twelve 30-day months;
(5) the place or places, if any, other than or in
addition to the Borough of Manhattan, The City of New York,
where the principal of (and premium or Make-Whole Amount, if
any), interest, if any, on, and Additional Amounts, if any,
payable in respect of, Securities of or within the series
shall be payable, any Registered Securities of or within the
series may be surrendered for registration of transfer,
exchange or conversion and notices or demands to or upon the
21
Trust in respect of the Securities of or within the series
and this Indenture may be served;
(6) the period or periods within which, the price or
prices (including the premium or Make-Whole Amount, if any)
at which, the currency or currencies, currency unit or units
or composite currency or currencies in which and other terms
and conditions upon which Securities of or within the series
may be redeemed in whole or in part, at the option of the
Trust, if the Trust is to have the option;
(7) the obligation, if any, of the Trust to redeem,
repay or purchase Securities of or within the series
pursuant to any sinking fund or analogous provision or at
the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or
prices at which, the currency or currencies, currency unit
or units or composite currency or currencies in which, and
other terms and conditions upon which Securities of or
within the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Registered Securities of or within the series shall be
issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities
of or within the series shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of or within
the series that shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 502
or, if applicable, the portion of the principal amount of
Securities of or within the series that is convertible in
accordance with the provisions of this Indenture, or the
method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium
or Make-Whole Amount, if any) or interest or Additional
Amounts, if any, on the Securities of or within the series
shall be payable or in which the Securities of or within the
series shall be denominated;
(12) whether the amount of payments of principal of
(and premium or Make-Whole Amount, if any) or interest, if
any, on the Securities of or within the series may be
determined with reference to an index, formula or other
22
method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium or Make-
Whole Amount, if any) or interest or Additional Amounts, if
any, on the Securities of or within the series are to be
payable, at the election of the Trust or a Holder thereof,
in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which
such Securities are denominated or stated to be payable, the
period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and
manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between
the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities
are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of or within the series upon the
occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions
to the Events of Default or covenants of the Trust with
respect to Securities of or within the series, whether or
not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(16) whether Securities of or within the series are to
be issuable as Registered Securities, Bearer Securities
(with or without coupons) or both, any restrictions
applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of or
within the series may be exchanged for Registered Securities
of or within the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of
or within the series are to be issuable initially in
temporary global form and whether any Securities of or
within the series are to be issuable in permanent global
form (with or without coupons) and, if so, whether
beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and
denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in
Section 305, and, if Registered Securities of or within the
23
series are to be issuable as a global Security, the identity
of the depositary for such series;
(17) the date as of which any Bearer Securities of or
within the series and any temporary global Security
representing Outstanding Securities of or within the series
shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the
Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner
provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or
1403 to the Securities of or within the series and any
provisions in modification of, in addition to or in lieu of
any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(21) if the Securities of or within the series are to
be issued upon the exercise of debt warrants, the time,
manner and place for such Securities to be authenticated and
delivered;
(22) whether and under what circumstances the Trust
will pay Additional Amounts as contemplated by Section 1011
on the Securities of or within the series to any Holder who
is not a United States person (including any modification to
the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the
Trust will have the option to redeem such Securities rather
than pay such Additional Amounts (and the terms of any such
option);
(23) the obligation, if any, of the Trust to permit the
conversion of the Securities of such series into shares of
24
Capital Stock of the Trust and the terms and conditions upon
which such conversion shall be effected (including, without
limitation, the initial conversion price or rate, the
conversion period, any adjustment of the applicable
conversion price or rate and any requirements relative to
the reservation of such shares for purposes of conversion);
and
(24) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series, if any,
shall be substantially identical except, in the case of
Registered or Bearer Securities issued in global form, as to
denomination and except as may otherwise be provided in or
pursuant to such Board Resolution or in any such indenture
supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board
Resolutions, a copy of an appropriate record of such action(s)
shall be certified by the Secretary or an Assistant Secretary of
the Trust and delivered to the Trustee at or prior to the
delivery of the Trust Order for authentication and delivery of
such Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to
the Securities of any series, the Registered Securities of such
series, other than Registered Securities issued in global form
(which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series other than Bearer Securities
issued in global form (which may be of any denomination), shall
be issuable in denominations of $5,000.
SECTION 303. Execution, Authentication Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Trust by its President or a Vice
President, under its corporate seal reproduced thereon, and
attested by its Secretary or an Assistant Secretary. The
signature of any of these officers on the Securities and coupons
may be manual or facsimile signatures of the present or any
25
future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities or coupons appertaining thereto bearing the
manual or facsimile signatures of individuals who were at any
time the proper officers of the Trust shall bind the Trust,
notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Trust may deliver Securities of
any series, together with any coupon appertaining thereto,
executed by the Trust to the Trustee for authentication, together
with a Trust Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Trust Order
shall authenticate and deliver such Securities; provided,
however, that, in connection with its original issuance, no
Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that, unless
otherwise specified with respect to any series of Securities
pursuant to Section 301 a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a
certificate to Euroclear or CEDEL, as the case may be, in the
form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of
Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is
delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with
the terms of such temporary Security and this Indenture. Except
as permitted by Section 306, the Trustee shall not authenticate
and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and cancelled.
If all of the Securities of any series are not to be issued
at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Trust Order may
set forth procedures acceptable to the Trustee for the issuance
of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest
shall accrue. In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon:
(i) an Opinion of Counsel complying with Section 102
and stating that:
26
(a) the form or forms of such Securities and any
coupons have been, or will have been upon compliance
with such procedures as may be specified therein,
establishedinconformitywiththeprovisionsofthisIndenture;
(b) the terms of such Securities and any coupons
have been, or will have been upon compliance with such
procedures as may be specified therein, established in
conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed pursuant to such
procedures as may be specified therein, and executed
and delivered by the Trust to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Trust
in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Trust, enforceable
in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or
affecting the enforcement of creditors' rights
generally and to general equitable principles and to
such other matters as may be specified therein; and
(ii) an Officers' Certificate complying with Section
102 and stating that all conditions precedent provided for
in this Indenture relating to the issuance of such
Securities have been, or will have been upon compliance with
such procedures as may be specified therein, complied with
and that, to the best of the knowledge of the signers of
such certificate, no Event of Default with respect to such
Securities shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties, obligations or
immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver a
Trust Order, an Opinion of Counsel or an Officers' Certificate
otherwise required pursuant to the preceding paragraph at the
time of issuance of each Security of such series, but such order,
opinion and certificate, with appropriate modifications to cover
such future issuances, shall be delivered at or before the time
of issuance of the first Security of such series.
27
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the
date specified as contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security or the Security
to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Trust, and the Trust
shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) stating that such Security has never been
issued or sold by the Trust, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities
of any series, the Trust may execute, and upon Trust Order
the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination; substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered
form, or, if authorized, in bearer form with one or more
coupons or without coupons; and with such appropriate
insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as
conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with Section
304(b) or as otherwise provided in or pursuant to a Board
Resolution), if temporary Securities of any series are
issued, the Trust will cause definitive Securities of that
series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or
28
agency of the Trust in a Place of Payment for that series,
without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining
thereto), the Trust shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series
of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange
for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance
with the conditions set forth in Section 303. Until so
exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided as contemplated in
Section 301, this Section 304(b) shall govern the exchange
of temporary Securities issued in global form other than
through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL.
Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of,
any such temporary global Security (the "Exchange Date"), the
Trust shall deliver to the Trustee definitive Securities, in an
aggregate principal amount equal to the principal amount of such
temporary global Security, executed by the Trust. On or after
the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the
Trust's agent for such purpose, to be exchanged, in whole or from
time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal
aggregate principal amount of definitive Securities of or within
the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged.
The definitive Securities to be delivered in exchange for any
such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is
so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common
Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and
29
signed by Euroclear as to the portion of such temporary global
Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and
signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the
form set forth in Exhibit A-2 to this Indenture or in such other
form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a
series in a temporary global Security shall be exchanged for
definitive Securities of the same series and of like tenor
following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange
on his behalf and delivers to Euroclear or CEDEL, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant
to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available
from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and
each Paying Agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like
unless such Person takes delivery of such definitive Securities
in person at the offices of Euroclear or CEDEL. Definitive
Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of
such series occurring prior to the applicable Exchange Date shall
be payable to Euroclear and CEDEL on such Interest Payment Date
upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2
to this Indenture (or in such other forms as may be established
pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts of
Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a
30
certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form
set forth as Exhibit A-1 to this Indenture (or in such other
forms as may be established pursuant to Section 301).
Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of
this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the
beneficial owners of the temporary global Security with respect
to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal or interest owing with
respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary
global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and
CEDEL and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Trust.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Trust shall cause to be kept at the Corporate Trust
Office of the Trustee or in any office or agency of the Trust in
a Place of Payment a register for each series of Securities (the
registers maintained in such office or in any such office or
agency of the Trust in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the
Trust shall provide for the registration of Registered Securities
and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being
converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially
appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the
right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon
surrender for registration of transfer of any Registered Security
of any series at any office or agency of the Trust in a Place of
Payment for that series, the Trust shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like
31
aggregate principal amount, bearing a number not
contemporaneously outstanding, and containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like
aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such
Registered Securities are so surrendered for exchange, the Trust
shall execute, and the Trustee shall authenticate and deliver,
the Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified with respect to
any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable
to the Trust in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Trust and the Trustee if
there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered
Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on
the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency
on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon
32
relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect
of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Trust shall execute, and the Trustee shall authenticate and
deliver, the Securities which the holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security
shall be exchangeable only as provided in this paragraph. If the
depositary for any permanent global Security is DTC, then, unless
the terms of such global Security expressly permit such global
Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but
not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected
or approved by the Trust or to a nominee of such successor to
DTC. If at any time DTC notifies the Trust that it is unwilling
or unable to continue as depositary for the applicable global
Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act if so required
by applicable law or regulation, the Trust shall appoint a
successor depositary with respect to such global Security or
Securities. If (x) a successor depositary for such global
Security or Securities is not appointed by the Trust within 90
days after the Trust receives such notice or becomes aware of
such unwillingness, inability or ineligibility, (y) an Event of
Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable
series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such
global Security or Securities or (z) the Trust, in its sole
discretion, determines at any time that all Outstanding
Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no
longer be represented by such global Security or Securities
(provided, however, the Trust may not make such determination
during the 40-day restricted period provided by Regulation S
under the Securities Act or during any other similar period
during which the Securities must be held in global form as may be
required by the Securities Act), then the Trust shall execute,
and the Trustee shall authenticate and deliver definitive
Securities of like series, rank, tenor and terms in definitive
form in an aggregate principal amount equal to the principal
amount of such global Security or Securities. If any beneficial
owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series
33
and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and
provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Trust shall execute, and
the Trustee shall authenticate and deliver definitive Securities
in aggregate principal amount equal to the principal amount of
such beneficial owner's interest in such permanent global
Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be
surrendered for exchange by DTC or such other depositary as shall
be specified in the Trust Order with respect thereto to the
Trustee, as the Trust's agent for such purpose; provided,
however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection
of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided further
that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered
to any location in the United States. If a Registered Security
is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest
in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Trust, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if
so required by thye Trust or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Security Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Trust may require
34
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not
involving any transfer.
The Trust or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any
Security if such Security may be among those selected for
redemption during a period beginning at the opening of business
15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if such
Securities are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if
such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in
part, except, in the case of any Registered Security to be
redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor; provided that
such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee or the
Trust, together with, in proper cases, such security or indemnity
as may be required by the Trust or the Trustee to save each of
them or any agent of either of them harmless, the Trust shall
execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the
surrendered Security.
If there shall be delivered to the Trust and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security or coupon, and (ii) such security or
indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of actual
notice to the Trust or the Trustee that such Security or coupon
35
has been acquired by a bona fide purchaser, the Trust shall
execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security
or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which
such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two
paragraphs, in case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Trust in its discretion may, instead of issuing a
new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that
payment of principal of (and premium or Make-Whole Amount, if
any), any interest on and any Additional Amounts with respect to,
Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by
Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Security under this Section,
the Trust may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Trust, whether
or not the destroyed, lost or stolen Security and its coupons, if
any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
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SECTION 307. Payment of Interest; Interest Rights
Preserved.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301,
interest on any Registered Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the
office or agency of the Trust maintained for such purpose
pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the
Trust's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled
thereto pursuant to Section 308, to the address of such Person as
it appears on the Security Register or (ii) transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, payment of interest
may be made, in the case of a Bearer Security, by transfer to an
account maintained by the payee with a bank located outside the
United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if
any, payable on any Interest Payment Date will be paid to DTC,
Euroclear and/or CEDEL, as the case may be, with respect to that
portion of such permanent global Security held for its account by
Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received
by it in respect of such permanent global Security to the
accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for
such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such
couponwhen due in accordancewith the provisionsof this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any
interest on any Registered Security of any series that is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
37
forthwith cease to be payable to the registered Holder thereof on
the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Trust, at
its election in each case, as provided in clause (1) or (2)
below:
(1) The Trust may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Trust shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same
time the Trust shall deposit with the Trustee an amount of
money in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Trust of
such Special Record Date and, in the name and at the expense
of the Trust, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior
to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Trust,
cause a similar notice to be published at least once in an
Authorized Newspaper in each place of payment, but such
publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
38
longer be payable pursuant to the following clause (2). In
case a Bearer Security of any series is surrendered at the
office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the
close of business at such office or agency on any Special
Record Date and before the opening of business at such
office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed
date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this
Indenture.
(2) The Trust may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Trust to the Trustee
of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Trust, the Trustee and any agent of
the Trust or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium
or Make-Whole Amount, if any), and (subject to Sections 305 and
307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be
overdue, and neither the Trust, the Trustee nor any agent of the
Trust or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Trust, the Trustee and any
agent of the Trust or the Trustee may treat the Holder of any
Bearer Security and the Holder of any coupon as the absolute
owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue,
39
and neither the Trust, the Trustee nor any agent of the Trust or
the Trustee shall be affected by notice to the contrary.
None of the Trust, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Trust, the Trustee, or
any agent of the Trust or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by
any depositary, as a Holder, with respect to such global Security
or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary
(or its nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration
of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and
coupons and Securities and coupons surrendered directly to the
Trustee for any such purpose shall be promptly cancelled by it.
The Trust may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder
which the Trust may have acquired in any manner whatsoever, and
may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Trust has not issued and sold,
and all Securities so delivered shall be promptly cancelled by
the Trustee. If the Trust shall so acquire any of the
Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee
shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Trust, unless by a Trust
Order the Trust directs their return to it.
40
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
with respect to Securities of any series, interest on the
Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Trust Request cease to be of
further effect with respect to any series of Securities specified
in such Trust Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series
herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1011), and the Trustee, upon
receipt of a Trust Order, and at the expense of the Trust, shall
execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has
been waived as provided in Section 305, (ii) Securities
and coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities
and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and
held in trust by the Trust and thereafter repaid to the
Trust or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
41
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Trust, are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of
the Trust,
and the Trust, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies,
currency unit or units or composite currency or
currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation,
for principal (and premium or Make-Whole Amount, if
any) and interest, and any Additional Amounts with
respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable)
or the Stated Maturity or Redemption Date, as the case
may be;
(2) The Trust has paid or caused to be paid all other
sums payable hereunder by the Trust; and
(3) The Trust has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Trust to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Trust to any
Authenticating Agent under Section 611 and, if money shall have
been deposited with and held by the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003, shall
survive.
SECTION 402. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section
401 shall be held in trust and applied by it, in accordance with
the provisions of the Securities, the coupons and this Indenture,
to the payment, either directly or through any Paying Agent
(including the Trust acting as its own Paying Agent) as the
42
Trustee may determine, to the Persons entitled thereto, of the
principal (and premium or Make-Whole Amount, if any), and any
interest and Additional Amounts for whose payment such money has
been deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent
required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions
relating to any series of Securities as contemplated pursuant to
Section 301, "Event of Default," wherever used herein with
respect to any particular series of Securities, means any one of
the following events (whatever the reason for such Event of
Default and whether or not it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of or
within that series or of any coupon appertaining thereto,
when such interest, Additional Amounts or coupon becomes due
and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of
that series when it becomes due and payable at its Maturity;
or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of
that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Trust in this Indenture with
respect to any Security of that series (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered
or certified mail, to the Trust by the Trustee or to the
Trust and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
43
(5) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness
of the Trust for money borrowed by the Trust (or by any
Subsidiary, the repayment of which the Trust has guaranteed
or for which the Trust is directly responsible or liable as
obligor or guarantor), having an aggregate principal amount
outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within a period of 10
days after there shall have been given, by registered or
certified mail, to the Trust by the Trustee or to the Trust
and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the
Trust to cause such indebtedness to be discharged or cause
such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court of competent jurisdiction of
one or more judgments, orders or decrees against the Trust
or any of its Subsidiaries in an aggregate amount (excluding
amounts covered by insurance) in excess of $10,000,000 and
such judgments, orders or decrees remain undischarged,
unstayed and unsatisfied in an aggregate amount (excluding
amounts covered by insurance) in excess of $10,000,000 for a
period of 30 consecutive days; or
(7) the Trust or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors; or
(8) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Trust or any
Significant Subsidiary in an involuntary case,
44
(B) appoints a Custodian of the Trust or any
Significant Subsidiary or for all or substantially all
of either of its property, or
(C) orders the liquidation of the Trust or any
Significant Subsidiary
and the order or decree remains unstayed and in effect for
90 days; or
(9) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
Title 11, U.S. Code or any similar Federal or state law for the
relief of debtors and the term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then and
in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that
series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms
thereof) of, and the Make-Whole Amount, if any, on, all the
Securities of that series to be due and payable immediately, by a
notice in writing to the Trust (and to the Trustee if given by
the Holders), and upon any such declaration such principal or
specified portion thereof shall become immediately due and
payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Trust and the
Trustee, may rescind and annul such declaration and its
consequences if:
(1) The Trust has paid or deposited with the Trustee a
sum sufficient to pay in the currency, currency unit or
composite currency in which the Securities of such series is
payable (except as otherwise specified pursuant to Section
301 for the Securities of such series):
45
(A) all overdue installments of interest on and
any Additional Amounts payable in respect of all
Outstanding Securities of that series and any related
coupons;
(B) the principal of (and premium or Make-Whole
Amount, if any, on) any Outstanding Securities of that
series which have become due otherwise than by such
declaration of acceleration and interest thereon at the
rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or
rates borne by or provided for in such Securities; and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal
of (or premium or Make-Whole Amount, if any) or interest on
Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Trust covenants that if:
(1) default is made in the payment of any installment
of interest or Additional Amounts, if any, on any Security
of any series and any related coupon when such interest or
Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium or Make-Whole Amount, if any, on) any Security
of any series at its Maturity,
then the Trust will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of
such series and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium or Make-
Whole Amount, if any) and interest and Additional Amounts, with
46
interest upon any overdue principal (and premium or Make-Whole
Amount, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates
borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Trust fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the
Trust or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Trust or any
other obligor upon such Securities of such series, wherever
situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Trust or
any other obligor upon the Securities or the property of the
Trust or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Trust for the payment of
overdue principal, premium or Make-Whole Amount, if any, or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities
of such series, of principal (and premium or Make-Whole
Amount, if any) and interest and Additional Amounts, if any,
owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or
47
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder of Securities of
such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor
Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons.
All rights of action and claims under this Indenture or any
of the Securities or coupons may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and coupons in
respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium or Make-Whole Amount,
if any) or interest and any Additional Amounts, upon presentation
of the Securities or coupons, or both, as the case may be, and
48
the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 606,
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest and any
Additional Amounts payable, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and
coupons for principal (and premium or Make-Whole Amount, if
any), interest and Additional Amounts, respectively, and
THIRD: To the payment of the remainder, if any, to the
Trust.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related
coupon shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
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or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if any, Interest and
Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of
(and premium or Make-Whole Amount, if any) and (subject to
Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in
the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the
Trustee or to such Holder, then and in every such case the Trust,
the Trustee and the Holders of Securities and coupons shall,
subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or
coupons in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised front time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series shall have the right
to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining therein
(but the Trustee shall have no obligation as to the
determination of such undue prejudice).
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on or Additional
Amounts payable in respect of any Security of such series or
any related coupons, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
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Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws.
The Trust covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Trust (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in
such suit of any undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or to any suit instituted
by any Holder for the enforcement of the payment of the principal
of (or premium or Make-Whole Amount, if any) or interest on or
Additional Amounts payable with respect to any Security on or
after the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall
transmit in the manner and to the extent provided in TIA Section
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313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of
the principal of (or premium or Make-Whole Amount, if any) or
interest on or any Additional Amounts with respect to any
Security of such series, or in the payment of any sinking fund
installment with respect to the Securities of such series, the
Trustee shall be protected in withholding such notice if and so
long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests
of the Holders of the Securities and coupons of such series; and
provided further that in the case of any default or breach of the
character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through
315(d):
(1) the Trustee shall perform only such duties as are
expressly undertaken by it to perform under this Indenture;
(2) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper
party or parties;
(3) any request or direction of the Trust mentioned
herein shall be sufficiently evidenced by a Trust Request or
Trust Order (other than delivery of any Security, together
with any coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(4) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
53
(5) the Trustee may consult with counsel and as a
condition to the taking, suffering or omission of any action
hereunder may demand an Opinion of Counsel, and the advice
of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(6) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(7) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Trust, personally or
by agent or attorney;
(8) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(9) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities.
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The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, and in any coupons
shall be taken as the statements of the Trust, and neither the
Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it
is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations
hereunder. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Trust of
Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar,
Authenticating Agent or any other agent of the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Securities and coupons and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Trust with the same rights it
would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on, or
investment of, any money received by it hereunder.
SECTION 606. Compensation and Reimbursement.
The Trust agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder,
including extraordinary services rendered in connection with
or during the continuation of a default hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee
upon its request for all reasonable expenses, disbursements
and advances incurred or made by it in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its
agents and counsel), except to the extent any such expense,
disbursement or advance may be attributable to its
negligence or bad faith; and
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(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense, arising out of or in
connection with the acceptance or administration of the
trust or trusts or the performance of its duties hereunder,
including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder except
to the extent any such loss, liability or expense may be
attributable to its own negligence or bad faith.
As security for the performance of the obligations of the
Trust under this Section, the Trustee shall have a lien prior to
the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment
of principal of (or premium or Make-Whole Amount, if any) or
interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests.
There shall at all times be a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and
shall have a combined capital and surplus of at least
$25,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written
notice thereof to the Trust. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of
56
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to
the Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Trust or by any Holder of a Security
who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written
request therefor by the Trust or by any Holder of a
Security who has been a bona fide Holder of a Security
for at least six months, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Trust by or pursuant to a
Board Resolution may remove the Trustee and appoint a
successor Trustee with respect to all Securities, or (ii)
subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause with respect to the
Securities of one or more series, the Trust, by or pursuant
to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of
57
any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trust and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee
appointed by the Trust. If no successor Trustee with
respect to the Securities of any series shall have been so
appointed by the Trust or the Holders of Securities and
accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to
Securities of such series.
(f) The Trust shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such
successor Trustee shall execute, acknowledge and deliver to
the Trust and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request
of the Trust or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
58
more (but not all) series, the Trust, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof,
wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on
request of the Trust or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Trust shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
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SECTION 610. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities or coupons
shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities or coupons. In case any
Securities or coupons shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate
and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding,
the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of
transfer or partial redemption or repayment thereof, and
Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed
by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Trust. Wherever
reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Trust and,
except as may otherwise be provided pursuant to Section 301,
shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws
of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating
60
Agent, having a combined capital and surplus of not less than
$25,000,000 and subject to supervision or examination by Federal
or State authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the
Trustee for such series and to the Trust. The Trustee for any
series of Securities may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Trust. Upon receiving such
a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for
such series may appoint a successor Authenticating Agent which
shall be acceptable to the Trust and shall give notice of such
appointment to all Holders of Securities of or within the series
with respect to which such Authenticating Agent will serve in the
manner set forth in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this
Section.
The Trust agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of
its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
61
endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
CRESTAR BANK, as Trustee
By: ___________________________
as Authenticating Agent
By: ___________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Trust and the Trustee that
neither the Trust nor the Trustee nor any Authenticating Agent
nor any Paying Agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any information as to
the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after August 1 of each year commencing with
the first August 1 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in TIA Section 313(c) a
brief report dated as of such August 1 if required by TIA Section
313(a).
SECTION 703. Reports by Trust.
The Trust will:
(1) file with the Trustee, within 15 days after the
Trust is required to file the same with the Commission,
copies of the annual reports and of the information,
62
documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Trust may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Trust is
not required to file information, documents or reports
pursuant to either of such Sections, then it will file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information,
documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents and reports with respect to compliance by the
Trust with the conditions and covenants of this Indenture as
may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in TIA Section 313(c),
such summaries of any information, documents and reports
required to be filed by the Trust pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Trust to Furnish Trustee Names and Addresses
of Holders.
The Trust will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than 15 days after the
Regular Record Date for interest for each series of
Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such
Regular Record Date, or if there is no Regular Record Date
for interest for such series of Securities, semi-annually,
upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Trust of
any such request, a list of similar form and content as of a
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date not more than 15 days prior to the time such list is
furnished,
provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Trust and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions.
The Trust may consolidate with, or sell, lease or convey all
or substantially all of its assets to, or merge with or into any
other Person, provided that in any such case, (i) either the
Trust shall be the continuing entity, or the successor (if other
than the Trust) entity shall be a Person organized and existing
under the laws of the United States or a State thereof and such
successor entity shall expressly assume the due and punctual
payment of the principal of (and premium or Make-Whole Amount, if
any) and any interest (including all Additional Amounts, if any,
payable pursuant to Section 1011) on all of the Securities,
according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this
Indenture to be performed by the Trust by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such Person and (ii)
immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Trust or any
Subsidiary as a result thereof as having been incurred by the
Trust or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or
conveyance and upon any such assumption by the successor entity,
such successor entity shall succeed to and be substituted for the
Trust, with the same effect as if it had been named herein as the
party of the first part, and the predecessor entity, except in
the event of a lease, shall be relieved of any further obligation
under this Indenture and the Securities. Such successor entity
thereupon may cause to be signed, and may issue either in its own
name or in the name of the Trust, any or all of the Securities
issuable hereunder which theretofore shall not have been signed
by the Trust and delivered to the Trustee; and, upon the order of
such successor entity, instead of the Trust, and subject to all
the terms, conditions and limitations in this Indenture
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prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered
by the officers of the Trust to the Trustee for authentication,
and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued
as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance
permitted under Section 801 is also subject to the condition that
the Trustee receive an Officers' Certificate and an Opinion of
Counsel to the effect that any such consolidation, merger, sale,
lease or conveyance, and the assumption by any successor entity,
complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders of Securities or coupons,
the Trust, when authorized by or pursuant to a Board Resolution,
and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Trust and the assumption by any such successor of the
covenants of the Trust herein and in the Securities
contained; or
(2) to add to the covenants of the Trust for the
benefit of the Holders of all or any series of Securities
(and, if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
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series) or to surrender any right or power herein conferred
upon the Trust; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit of
less than all series of Securities, stating that such Events
of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect
of any such additional Events of Default such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to
which such additional Events of Default apply to waive such
default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium,
Make-Whole Amount or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections
201 and 301, including the provisions and procedures
relating to Securities convertible into Capital Stock; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
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necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with
the provisions of this Indenture or to make any other
changes, provided that in each case, such provisions shall
not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any
material respect; or
(10) to close this Indenture with respect to the
authentication and delivery of additional series of
Securities or to qualify, or maintain qualification of, this
Indenture under the TIA; or
(11) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403; provided
in each case that any such action shall not adversely affect
the interests of the Holders of Securities of such series
and any related coupons or any other series of Securities in
any material respect.
SECTION 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority
in principal amount of all Outstanding Securities affected by
such supplemental indenture, by Act of said Holders delivered to
the Trust and the Trustee, the Trust, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities and any related
coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium or Make-Whole Amount, if any, on) or any installment
of principal of or interest on, any Security; or reduce the
principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect
thereof, or any premium or Make-Whole Amount payable upon
the redemption thereof, or change any obligation of the
Trust to pay Additional Amounts pursuant to Section 1011
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(except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an
Original Issue Discount Security or Make-Whole Amount, if
any, that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at
the option of the Holder of any Security, or change any
Place of Payment where, or the currency or currencies,
currency unit or units or composite currency or currencies
in which, the principal of any Security or any premium or
Make-Whole Amount or any Additional Amounts payable in
respect thereof or the interest thereon is payable, or
impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver with
respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or
voting; or
(3) modify any of the provisions of this Section,
Section 513 or Section 1012, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or
permitted by this Indenture and that all conditions precedent to
the execution of such supplemental indenture have been complied
with. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this
Article may, and shall, if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Trust shall
so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Trust, to any such
supplemental indenture may be prepared and executed by the Trust
and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Trust and the Trustee of
any supplemental indenture pursuant to the provisions of Section
902, the Trust shall give notice thereof to the Holders of each
Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such
supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole
Amount, if any, Interest and Additional Amounts.
The Trust covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium or Make-Whole
Amount, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance
with the terms of such series of Securities, any coupons
appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before
Maturity, other than Additional Amounts, if any, payable as
provided in Section 1011 in respect of principal of (or premium
or Make-Whole Amount, if any, on) such a Security, shall be
payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby
as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 301, at
the option of the Trust, all payments of principal may be paid by
check to the registered Holder of the Registered Security or
other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered
Securities, the Trust shall maintain in each Place of Payment for
any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and
demands to or upon the Trust in respect of the Securities of that
series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Trust will
maintain: (A) in the Borough of Manhattan, The City of New York,
an office or agency where any Registered Securities of that
series may be presented or surrendered for payment or conversion,
where any Registered Securities of that series may be surrendered
for exchange, where notices and demands to or upon the Trust in
respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment or conversion
in the circumstances described in the following paragraph (and
not otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities
of that series and related coupons may be presented and
70
surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section
1011) or conversion; provided, however, that if the Securities of
that series are listed on the Luxembourg Stock Exchange, The
International Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so
require, the Trust will maintain a Paying Agent for the
Securities of that series in Luxembourg, London or any other
required city located outside the United States, as the case may
be, so long as the Securities of that series are listed in such
exchange; and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside
the United States an office or agency where any Securities of
that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange
and where notices and demands to or upon the Trust in respect of
the Securities of that series and this Indenture may be served.
The Trust will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or
agency. If at any time the Trust shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office
of the Trustee, except that Bearer Securities of that series and
the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 1011) at the
offices specified in the Security, in London, England, and the
Trust hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and
the Trust hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium, Make-
Whole Amount or interest on or Additional Amounts in respect of
Bearer Securities shall be made at any office or agency of the
Trust in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that, if
the Securities of a series are payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security
(including any Additional Amounts or Make-Whole Amount payable on
Securities of such series pursuant to Section 1011) shall be made
at the office of the Trust's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium, interest,
Additional Amounts or Make-Whole Amount, as the case may be, at
all offices or agencies outside the United States maintained for
the purpose by the Trust in accordance with this Indenture, is
illegal or effectively precluded by exchange controls or other
similar restrictions.
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The Trust may from time to time designate one or more other
offices or agencies where the Securities of one or more series
and related coupons, if any, may be presented or surrendered for
any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Trust of its
obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for
such purposes. The Trust will give prompt written notice to the
Trustee of any such designation or rescission and of any change
in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities pursuant to
Section 301 with respect to a series of Securities, the Trust
hereby designates as Places of Payment for each series of
Securities the Corporate Trust Office of the Trustee and the
office or agency of Harris Trust Company at 7 Water Street, Fifth
Floor, New York, New York 10005, in the Borough of Manhattan,
The City of New York, initially appoints the Trustee as a Paying
Agent in Richmond, Virginia, and Harris Trust Company as Paying
Agent in the Borough of Manhattan, The City of New York, and
appoints each as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any
series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under
any other provision of the Indenture, then the Trust will
maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust.
If the Trust shall at any time act as its own Paying Agent
with respect to any series of any Securities and any related
coupons, it will, on or before each due date of the principal of
(and premium or Make-Whole Amount, if any), or interest on or
Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (and premium or
Make-Whole Amount, if any) or interest or Additional Amounts so
becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Trust shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or
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before each due date of the principal of (and premium or Make-
Whole Amount, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying
Agent a sum (in the currency or currencies, currency unit or
units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (and premium
or Make-Whole Amount, if any) or interest or Additional Amounts,
so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium, Make-Whole
Amount or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Trust will promptly notify the Trustee
of its action or failure so to act.
The Trust will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of
principal of (and premium or Make-Whole Amount, if any) or
interest on Securities or Additional Amounts in trust for
the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the
Trust (or any other obligor upon the Securities) in the
making of any such payment of principal (and premium or
Make-Whole Amount, if any) or interest or Additional
Amounts; and
(3) at any time during the continuance of any such
default upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Trust may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Trust Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Trust or such Paying
Agent, such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Trust or such
Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any
series, any money deposited with the Trustee or any Paying Agent,
or then held by the Trust, in trust for the payment of the
principal of (and premium or Make-Whole Amount, if any) or
interest on, or any Additional Amounts in respect of, any
Security of any series and remaining unclaimed for two years
73
after such principal (and premiums or Make-Whole Amount, if any),
interest or Additional Amounts has become due and payable shall
be paid to the Trust upon Trust Request or (if then held by the
Trust) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor,
look only to the Trust for payment of such principal of (and
premium or Make-Whole Amount, if any) or interest on, or any
Additional Amounts in respect of, any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Trust
as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Trust cause to
be published once, in an Authorized Newspaper, notice that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining
will be repaid to the Trust.
SECTION 1004. [Omitted].
SECTION 1005. Existence.
Subject to Article Eight, the Trust will do or cause to be
done all things necessary to preserve and keep in full force and
effect the existence, rights (charter and statutory) and
franchises of the Trust and its Subsidiaries; provided, however,
that the Trust shall not be required to preserve any right or
franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Trust and its Subsidiaries as a whole and that
the loss thereof is not disadvantageous in any material respect
to the Holders of Securities of any series.
SECTION 1006. Maintenance of Properties.
The Trust will cause all of its properties used or useful in
the conduct of its business or the business of any Subsidiary to
be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of
the Trust may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section
shall prevent the Trust or any Subsidiary from selling or
otherwise disposing of for value its properties in the ordinary
course of its business.
SECTION 1007. Insurance.
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The Trust will, and will cause each of its Subsidiaries to,
keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with
financially sound and reputable insurance companies.
SECTION 1008. Payment of Taxes and Other Claims.
The Trust will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon it or any Subsidiary or upon the income, profits or property
of the Trust or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Trust or any Subsidiary;
provided, however, that the Trust shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings.
SECTION 1009. Provision of Financial Information.
Whether or not the Trust is subject to Section 13 or 15(d)
of the Exchange Act, the Trust will, to the extent permitted
under the Exchange Act, file with the Commission the annual
reports, quarterly reports and other documents which the Trust
would have been required to file with the Commission pursuant to
such Section 13 or 15(d) (the "Financial Statements") if the
Trust were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Trust would have been required so to
file such documents if the Trust were so subject.
The Trust will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as
their names and addresses appear in the Security Register,
without cost to such Holders, copies of the annual reports and
quarterly reports which the Trust would have been required to
file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Trust were subject to such Sections, and (ii)
file with the Trustee copies of annual reports, quarterly reports
and other documents which the Trust would have been required to
file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Trust were subject to such Sections and (y)
if filing such documents by the Trust with the Commission is not
permitted under the Exchange Act, promptly upon written request
and payment of the reasonable cost of duplication and delivery,
supply copies of such documents to any prospective Holder.
SECTION 1010. Statement as to Compliance.
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The Trust will deliver to the Trustee within 120 days after
the end of each fiscal year, a brief certificate from the
principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the
Trust's compliance with all conditions and covenants under this
Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of
this Section 1010, such compliance shall be determined without
regard to any period of grace or requirement of notice under this
Indenture.
SECTION 1011. Additional Amounts.
If any Securities of a series provide for the payment of
Additional Amounts, the Trust will pay to the Holder of any
Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section
301. Whenever in this Indenture there is mentioned, in any
context except in the case of Section 502(1), the payment of the
principal of or any premium, Make-Whole Amount or interest on, or
in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established pursuant to
Section 301 to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant
to such terms and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section
301, if the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any
premium is made), and at least 10 days prior to each date of
payment of principal and any premium or Make-Whole Amount or
interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Trust
will furnish the Trustee and the Trust's principal Paying Agent
or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be
made to Holders of Securities of that series or any related
coupons who are not United States persons without withholding for
or on account of any tax, assessment or other governmental charge
described in the Securities of or within the series. If any such
withholding shall be required, then such Officers' Certificate
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shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities of that
series or related coupons and the Trust will pay to the Trustee
or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying
Agent, as the case may be, shall not so receive the above-
mentioned certificate, then the Trustee or such Paying Agent
shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related
coupons until it shall have received a certificate advising
otherwise and (ii) to make all payments of principal and interest
with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The
Trust covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section or in reliance on the Trust's
not furnishing such an Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants.
The Trust may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 to
1009, inclusive, and with any other term, provision or condition
with respect to the Securities of any series specified in
accordance with Section 301 (except any such term, provision or
condition which could not be amended without the consent of all
Holders of Securities of such series pursuant to Section 902), if
before or after the time for such compliance the Holders of at
least a majority in principal amount of all outstanding
Securities of such series, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Trust and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by
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Section 301 for Securities of any series) in accordance with this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Trust to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Trust of less than all of the
Securities of any series, the Trust shall, at least 45 days prior
to the giving of the notice of redemption in Section 1104 (unless
a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Trust shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series issued on the
same day with the same terms are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Trust and the Security
Registrar (if other than itself) in writing of the Securities
selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to
be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided
in Section 106, not less than 30 days nor more than 60 days prior
to the Redemption Date, unless a shorter period is specified by
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the terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give
such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder
receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
and Additional Amounts, if any;
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part
only, that on and after the Redemption Date, upon surrender
of such Security, the holder will receive, without a charge,
a new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price
and accrued interest to the Redemption Date payable as
provided in Section 1106, if any, will become due and
payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date;
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with
all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for
conversion;
(7) that the redemption is for a sinking fund, if such
is the case;
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
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subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory
to the Trust, the Trustee for such series and any Paying
Agent is furnished;
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are
not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to the
redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Trust, on
which such exchanges may be made;
(10) the CUSIP number of such Security, if any,
provided that neither the Trust nor the Trustee shall have
any responsibility for any such CUSIP number; and
(11) if applicable, that a Holder of Securities who
desires to convert Securities to be redeemed must satisfy
the requirements for conversion contained in such
Securities, the then existing conversion price or rate and
the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Trust or, at the Trust request, by the Trustee in
the name and at the expense of the Trust.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Trust shall deposit
with the Trustee or with a Paying Agent (or, if the Trust is
acting as its own Paying Agent, which it may not do in the case
of a sinking fund payment under Article Twelve, segregate and
hold in trust as provided in Section 1003) an amount of money in
the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to
be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to
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Section 301 for the Securities of such series) (together with
accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Trust shall default in the payment of
the Redemption Price and accrued interest) such Securities shall,
if the same were interest-bearing, cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in
accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Trust at the Redemption Price,
together with accrued interest, if any, to the Redemption Date;
provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable only at an office or agency located outside
the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of coupons for such
interest; and provided further that except as otherwise provided
with respect to Securities convertible into Capital Stock,
installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions
of Section 307.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all
such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Trust and the Trustee if there be
furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of
which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium
or Make-Whole Amount, if any) shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part.
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Any Security which is to be redeemed only in part (pursuant
to the provisions of this Article or of Article Twelve) shall be
surrendered at a Place of Payment therefor (with, if the Trust or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Trust and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Trust shall execute and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except
as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as
a "mandatory sinking fund payment," and any payment in excess of
such minimum amount provided for by the terms of such Securities
of any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may
be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Trust may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of
a series, (1) deliver Outstanding Securities of such series
(other than any previously called for redemption) together in the
case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of
the Trust pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant
to the terms of such Securities, as provided for by the terms of
such Securities, or which have otherwise been acquired by the
Trust; provided that such Securities so delivered or applied as a
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credit have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at
the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking payment date for
Securities of any series, the Trust will deliver to the Trustee
an Officers' Certificate specifying the amount of the next
ensuing mandatory sinking fund payment for that series pursuant
to the terms of that series, the portion thereof, if any, which
is to be satisfied by payment of cash in the currency or
currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202, and the optional amount, if any,
to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to
be so delivered and credited. If such Officers' Certificate
shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Trust shall thereupon
be obligated to pay the amount therein specified. Not less than
30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and
at the expense of the Trust in the manner provided in Section
1104. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in
accordance with the terms of such Securities, if any, and (except
as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities.
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Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise
provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereon, together with interest, if
any, thereof accrued to the Repayment Date specified in or
pursuant to the terms of such Securities. The Trust covenants
that on or before the Repayment Date it will deposit with the
Trustee or with a Paying Agent (or, if the Trust is acting as its
own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option
of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the
Trustee must receive at the Place of Payment therefor specified
in the terms of such Security (or at such other place or places
of which the Trust shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for
such repayment together with the "Option to Elect Repayment" form
on the reverse thereof duly completed by the Holder (or by the
Holder's attorney duly authorized in writing) or (2) a telegram,
telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of
Securities Dealers, Inc. ("NASD"), or a commercial bank or trust
company in the United States setting forth the name of the Holder
of the Security, the principal amount of the Security, the
principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security,
a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect Repayment"
on the reverse of the Security, will be received by the Trustee
not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided,
however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly
completed are received by the Trustee by such fifth Business Day.
If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of
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the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be
issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid
in part if, following such repayment, the unpaid principal amount
of such Security would be less than the minimum authorized
denomination of Securities of or within the series of which such
Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at
the option of the Holder thereof, exercise of the repayment
option by the Holder shall be irrevocable unless waived by the
Trust.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as
provided in this Article and as provided by or pursuant to the
terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Trust on the Repayment Date
therein specified, and on and after such Repayment Date (unless
the Trust shall default in the payment of such Securities on such
Repayment Date) such Securities shall, if the same were interest-
bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to
the extent provided below, shall be void. Upon surrender of any
such Security for repayment in accordance with such provisions,
together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such security
so to be repaid shall be paid by the Trust, together with accrued
interest, if any, to the Repayment Date; provided, however, that
coupons whose Stated Maturity is on or prior to the Repayment
Date shall be payable only at an office or agency located outside
the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and provided
further that, in the case of Registered Securities, installments
of interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon,
unless the Trust shall default in the payment thereof) to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions
of Section 307.
If any Bearer Security surrendered for repayment shall not
be accompanied by all appurtenant coupons maturing after the
Repayment Date, such Security may be paid after deducting from
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the amount payable therefor as provided in Section 1302 an amount
equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the
Trust and the Trustee if there be furnished to them such security
or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been
made as provided in the preceding sentence, such Holder shall be
entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation
and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such
principal amount (together with interest, if any, thereon accrued
to such Repayment Date) shall, until paid, bear interest from the
Repayment Date at the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be
repaid in part only, the Trust shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Trust, a new
Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Trust's Option to
Effect Defeasance or Covenant Defeasance.
If, pursuant to Section 301, provision is made for either or
both of (a) defeasance of the Securities of or within a series
under Section 1402 or (b) covenant defeasance of the Securities
of or within a series under Section 1403 to be applicable to the
Securities of any series, then the provisions of such Section or
Sections, as the case may be, together with the other provisions
of this Article (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any
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Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Trust may at its option by
Board Resolution, at any time, with respect to such Securities
and any coupons appertaining thereto, elect to defease such
Outstanding Securities and any coupons appertaining thereto
pursuant to Section 1402 (if applicable) or Section 1403 (if
applicable) upon compliance with the conditions set forth below
in this Article.
SECTION 1402 Defeasance and Discharge.
Upon the Trust's exercise of the above option applicable to
this Section with respect to any Securities of or within a
series, the Trust shall be deemed to have been discharged from
its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Trust shall be
deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all of its other obligations under
such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining
thereto are concerned (and the Trustee, at the expense of the
Trust, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities and any coupons appertaining thereto
to receive, solely from the trust fund described in Section 1404
and as more fully set forth in such Section, payments in respect
of the principal of (and premium or Make-Whole Amount, if any)
and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B) the Trust's
obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section
1011, (C) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Trust may exercise its
option under this Section notwithstanding the prior exercise of
its option under Section 1403 with respect to such Securities and
any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance.
Upon the Trust's exercise of the above option applicable to
this Section with respect to any Securities of or within a
series, the Trust shall be released from its obligations under
Sections 1004 to 1009, inclusive, and, if specified pursuant to
Section 301, its obligations under any other covenant, with
respect to such Outstanding Securities and any coupons
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appertaining thereto on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be not "Outstanding" for
the purposes of any direction, waiver, consent or declaration or
Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1009, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding
Securities and any coupons appertaining thereto, the Trust may
omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such
other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a
default or an Event of Default under Section 501(4) or 501(9) or
otherwise, as the case may be, but, except as specified above,
the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of
Section 1402 or Section 1403 to any Outstanding Securities of or
within a series and any coupons appertaining thereto:
(a) The Trust shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree
to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated
Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on
the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are
then specified as payable at Stated Maturity) which through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of
principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a
combination thereof in an amount, sufficient, without
consideration of any reinvestment of such principal and
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interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the
principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii)
any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons
appertaining thereto; provided, that the Trustee shall have
been irrevocably instructed to apply such money or the
proceeds of such Government Obligations to said payments
with respect to such Securities. Before such a deposit, the
Trust may give to the Trustee, in accordance with Section
1102 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series
and Article Eleven hereof, which notice shall be
irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Trust is a party or by which it is
bound (and shall not cause the Trustee to have a conflicting
interest pursuant to Section 310(b) of the TIA with respect
to any Security of the Trust).
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 501(7) and 501(8) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the
Trust shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Trust has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income
89
tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Trust shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Trust shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
under Section 1402 or the covenant defeasance under Section
1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result
of a deposit pursuant to subsection (a) above and the
related exercise of the Trust's option under Section 1402 or
Section 1403 (as the case may be) registration is not
required under the Investment Company Act of 1940, as
amended, by the Trust, with respect to the trust funds
representing such deposit or by the Trustee for such trust
funds or (ii) all necessary registrations under said Act
have been effected.
(g) After the 91st day following the deposit, the
trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally.
(h) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Trust in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as
may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee")
pursuant to Section 1404 in respect of any Outstanding Securities
of any series and any coupons appertaining thereto shall be held
in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or
90
through any Paying Agent (including the Trust acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities and any coupons appertaining thereto of all sums
due and to become due thereon in respect of principal (and
premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in
Section 1404(a) has been made, (a) the Holder of a Security in
respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 301 or the terms of such Security to
receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in
respect of such Security, or (b) a Conversion Event occurs in
respect of the currency or currency unit in which the deposit
pursuant to Section 1404(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or
Make-Whole Amount, if any), and interest, if any, on such
Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of
any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election
or Conversion Event based on the applicable market exchange rate
for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to
a Conversion Event, for such currency or currency unit in effect
(as nearly as feasible) at the time of the Conversion Event.
The Trust shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Trust from time to time
upon Trust Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in
Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be
called at any time and from time to time pursuant to this Article
to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at
such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Trust, pursuant to a Board
Resolution, or the Holders of at least 10% in principal
amount of the Outstanding Securities of any series shall
have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such
request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Trust or the Holders
of Securities of such series in the amount above specified,
as the case may be, may determine the time and the place in
the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection (a) of
this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one
or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Securities
92
of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Trust and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of
not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in
principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with
this Section shall be binding on all the Holders of Securities of
93
such series and the related coupons, whether or not present or
represented at the meeting.
Notwithstanding the foregoing provisions of this Section
1504, if any action is to be taken at a meeting of Holders of
Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
that this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding Securities
of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether
such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities of a
series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the
Person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Trust or by Holders of
Securities as provided in Section 1502(b), in which case the
Trust or the Holders of Securities of or within the series
calling the meeting, as the case may be, shall in like
94
manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each
$1,000 principal amount of the Outstanding Securities of
such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1502 at which a quorum is
present may be adjourned from time to time by Persons
entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the
meeting, and the meeting may be held as so adjourned without
further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots
on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least
in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall
be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be
delivered to the Trust and another to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
95
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by a specified percentage in principal amount of
the Holders of any or all series may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed
by such specified percentage of Holders in person or by agent
duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Proof of
execution of any instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and
(subject to Article Six) conclusive in favor of the Trustee and
the Trust, if made in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a
Holder or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the
Trustee.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate.
The Trust agrees, and each Holder by accepting a Security
agrees, that the indebtedness evidenced by the Securities is
subordinated in right of payment, to the extent and in the manner
provided in this Article, to the prior payment in full of all
Senior Debt and that the subordination is for the benefit of the
holders of Senior Debt.
SECTION 1602. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Trust in a
liquidation or dissolution of the Trust or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding
relating to the Trust or its property:
(1) holders of Senior Debt shall be entitled to
receive payment in full in cash of the principal of and
interest (including interest accruing after the commencement
of any such proceeding) to the date of payment on the Senior
Debt before Holders shall be entitled to receive any payment
of principal of or interest on Securities;
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders would be entitled but for this
Article shall be made to holders of Senior Debt as their
interests may appear, except that Holders may receive
96
securities that are subordinated to Senior Debt to at least
the same extent as the Securities; and
(3) the Trustee is entitled to rely upon an order or
decree of a court of competent jurisdiction or a certificate
of a bankruptcy trustee or other similar official for the
purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Debt and other
Trust debt, the amount thereof or payable thereon and all
other pertinent facts relating to the Trustee's obligations
under this Article Sixteen.
SECTION 1603. Default on Senior Debt.
The Trust may not pay principal of or interest on the
Securities and may not acquire any Securities for cash or
property other than capital stock of the Trust if:
(1) a default on Senior Debt occurs and is continuing
that permits holders of such Senior Debt to accelerate its
maturity, and
(2) the default is the subject of judicial proceedings
or the Trust receives a notice of the default from a person
who may give it pursuant to Section 1611. If the Trust
receives any such notice, a similar notice received within
nine months thereafter relating to the same default on the
same issue of Senior Debt shall not be effective for
purposes of this Section.
The Trust may resume payments on the Securities and may
acquire them when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the
default is not the subject of judicial proceedings.
if this Article otherwise permits the payment or acquisition at
that time.
SECTION 1604. Acceleration of Securities.
If payment of the Securities is accelerated because of an
Event of Default, the Trust shall promptly notify holders of
Senior Debt of the acceleration. The Trust may pay the
Securities when 120 days pass after the acceleration occurs if
this Article permits the payment at that time.
SECTION 1605. When Distribution Must Be Paid Over.
If a distribution is made to Holders that because of this
Article should not have been made to them, the Holders who
receive the distribution shall hold it in trust for holders of
97
Senior Debt and pay it over to them as their interests may
appear.
SECTION 1606. Notice by Trust.
The Trust shall promptly notify the Trustee and any Paying
Agent of any facts known to the Trust that would cause a payment
of principal of or interest on Securities to violate this
Article.
SECTION 1607. Subrogation.
After all Senior Debt is paid in full and until the
Securities are paid in full, Holders shall be subrogated to the
rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article to
holders of Senior Debt which otherwise would have been made to
Holders is not, as between the Trust and Holders, a payment by
the Trust on Senior Debt.
SECTION 1608. Relative Rights.
This Article defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Trust and Holders, the
obligation of the Trust, which is absolute and
unconditional, to pay principal of and interest on the
Securities in accordance with their terms;
(2) affect the relative rights of Holders and
creditors of the Trust other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising
its available remedies upon an Event of Default, subject to
the rights of holders of Senior Debt to receive
distributions otherwise payable to Holders.
If the Trust fails because of this Article to pay principal
of or interest on a Security on the due date, the failure is
still a default.
SECTION 1609. Subordination May Not Be Impaired by Trust.
No right of any holder of Senior Debt to enforce the
subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to act by the Trust or by
its failure to comply with this Indenture.
SECTION 1610. Distribution or Notice to Representative.
98
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the
notice given to their Representative.
SECTION 1611. Rights of Trustee and Paying Agent.
The Trustee or any Paying Agent may continue to make
payments on the Securities until it receives written notice of
facts that would cause a payment of principal of or interest on
the Securities to violate this Article. Only the Trust, a
Representative or a holder of an issue of Senior Debt that has no
Representative may give the written notice.
The Trustee has no fiduciary duty to the holders of Senior
Debt other than as created under this Indenture. The Trustee in
its individual or any other capacity may hold Senior Debt with
the same rights it would have if it were not Trustee.
The Trust's obligation to pay, and the Trust's payment of,
the Trustee's fees pursuant to Section 606 are excluded from the
operation of this Article Sixteen.
* * * * *
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same Indenture.
99
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first above
written.
UNITED DOMINION REALTY TRUST, INC.
By: ___________________________
Name: John P. McCann
Title: President and Chief
Executive Officer
CRESTAR BANK, as Trustee
By: ____________________________
Name:______________________
Title: ____________________
100
STATE OF VIRGINIA
CITY OF RICHMOND
The foregoing instrument was acknowledged before me in the
City of Richmond, State of Virginia, by John P. McCann,
President and Chief Executive Officer of United Dominion Realty
Trust, Inc. a corporation, on behalf of the corporation.
M y c o m m i s s i o n e x p i r e s
________________________________________.
____________________________________
Notary Public
STATE OF _________________________________
CITY/COUNTY OF __________________________
The foregoing instrument was acknowledged before me in the
City/County of _____________________________, State of
_______________________, by __________________,
_______________________________ of Crestar Bank, a Virginia
banking corporation, on behalf of the corporation.
M y c o m m i s s i o n e x p i r e s
________________________________________.
____________________________________
Notary Public
101
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except
as set forth below, the above-captioned Securities held by you
for our account (i) are owned by person(s) that are not citizens
or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of
its source ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and
in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its
agent, that you may advise Property Trust of America or its agent
that such financial institution will provide a certificate within
a reasonable time stating that it agrees to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by a financial
institution for purposes of resale during the restricted period
(as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and, such financial institution described in
clause (iii) above (whether or not also described in clause (i)
or (ii)), certifies that it has not acquired the Securities for
purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
A-1
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your
certification relating to the above-captioned Securities held by
you for our account in accordance with your Operating Procedures
if any applicable statement herein is not correct on such date,
and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not related to [U.S.$]
________________ of such interest in the above-captioned
Securities in respect of which we are not able to certify and as
to which we understand an exchange for an interest in a Permanent
Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot
be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: __________________, 19__
[To be dated no earlier than the 15th day prior
to the earlier of (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making
Certification]
___________________________
(Authorized Signator)
Name:
Title:
A-2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex
or by electronic transmission from each of the persons appearing
in our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]
______________ principal amount of the above-captioned Securities
(i) is owned by person(s) that are not citizens or residents of
the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United
States person(s)"), (ii) is owned by United States person(s) that
are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial
institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either
case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Property
Trust of America or its agent that such financial institution
will provide a certificate within a reasonable time stating that
it agrees to comply with the requirements of Section
165(j)(3)(A), (B), or (C) of the Internal Revenue Code of 1986,
as amended, and the regulations thereunder), or (iii) is owned by
a financial institution for purposes of resale during the
restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and that such
financial institutions described in clause (iii) above (whether
or not also described in clause (i) or (ii)) have certified that
they have not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
A-3
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any
interest) any portion of the temporary global Security
representing the above-captioned Securities excepted in the
above-referenced certificates of Member Organizations and (ii) as
of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements
made by such Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant,
collection of any interest) are no longer true and cannot be
relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: __________________, 19__
[To be dated no earlier than the earlier of
the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange
Date, as applicable]
[Morgan Guaranty Trust
Company of New York,
Brussels Office,] as
Operator of the
Euroclear System
[Cedel S.A.]
By:
_______________________
A-4
Exhibit 4(i)(o)
REGISTERED PRINCIPAL AMOUNT
No.: $
CUSIP No.: _________
UNITED DOMINION REALTY TRUST, INC.
[Designation of Senior Security]
UNITED DOMINION REALTY TRUST, INC., a Virginia corporation (hereinafter
called the "Trust," which term shall include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, upon presentation, the principal sum of
DOLLARS on _____________, and to pay interest on the outstanding principal
amount thereon from _____________, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on _______ and _________ in each year, commencing _______________, at the rate
of __% per annum, until the entire principal amount hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Senior Security (or one or more
Predecessor Senior Securities) is registered at the close of business on the
Regular Record Date for such interest which shall be the ________ or ________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may either be paid to the Person in whose name this Senior
Security (or one or more Predecessor Senior Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Senior Securities of this series not more than 15 days and not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Senior Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. Payment
of the principal of, Make-Whole Amount, if any, on, and interest on this Senior
Security will be made at the office or agency of the Trust maintained for that
purpose in the City of Richmond, State of Virginia, or elsewhere as provided in
the Indenture, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Trust payment of interest may be
made by (i) check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register kept for the Senior Securities
pursuant to Section 305 of the Indenture (the "Security Register") or (ii)
transfer to an account of the Person entitled thereto located inside the United
States.
This Senior Security is one of a duly authorized issue of securities of the
Trust (herein called the "Senior Securities"), issued and to be issued in one or
more series under an Indenture, dated as of April 1, 1994 (herein called the
"Indenture"), between the Trust and NationsBank of Virginia, N.A. (herein called
the "Trustee," which term includes any successor trustee under the Indenture
with respect to the Senior Securities), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trust,
the Trustee and the Holders of the Senior Securities and of the terms upon which
the Senior Securities are, and are to be, authenticated and delivered. This
Senior Security is one of the series designated as the "[designation of Senior
Securities]," limited in aggregate principal amount to $__________.
The Senior Securities may be redeemed at any time at the option of the
Trust, in whole or in part, upon notice of not more than 60 nor less than 30
days prior to the Redemption Date, at a redemption price equal to the sum of (i)
the principal amount of the Senior Securities being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Senior Securities.
The following definitions apply with respect to any redemption of the
Senior Securities of this series at the option of the Trust:
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Senior Security, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment
of each dollar of principal being redeemed or paid and the amount of interest
(exclusive of any interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of such dollar if such
redemption or accelerated payment had not been made, determined by discounting,
on a semiannual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Senior Securities being redeemed or paid.
"Reinvestment Rate" means .25% (one-fourth of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding sentence
and the Reinvestment Rate shall be interpolated or extrapolated from such yields
on a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate, the most
recent Statistical Release published prior to the date of determination of the
Make- Whole Amount shall be used.
"Statistical Release" means the statistical release designated "H.15 (519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by the Trust.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Trust on this Senior Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Trust, in each case, upon compliance by the Trust with certain conditions
set forth in the Indenture, which provisions apply to this Senior Security.
If an Event of Default with respect to the Senior Securities shall occur
and be continuing, the principal of, and the Make- Whole Amount, if any, on, the
Senior Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Senior Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Senior Securities, the Holders of not less than 25% in principal amount of the
Senior Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of the Senior
Securities at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Senior Security for the
enforcement of any payment of principal hereof or any interest on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trust and the rights of the Holders of the Senior Securities under the Indenture
at any time by the Trust and the Trustee with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Senior Securities.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Senior Securities at the time
Outstanding, on behalf of the Holders of all Senior Securities, to waive
compliance by the Trust with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Senior Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Senior Security and of any
Senior Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Senior Security.
No reference herein to the Indenture and no provision of this Senior
Security or of the Indenture shall alter or impair the obligation of the Trust,
which is absolute and unconditional, to pay the principal of, Make-Whole Amount,
if any, on, and interest on this Senior Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Senior Security is registrable in the Security
Register, upon surrender of this Senior Security for registration of transfer at
the office or agency of the Trust in any Place of Payment where the principal
of, Make-Whole Amount, if any, on, and interest on this Senior Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Trust and the Security Registrar for the Senior
Securities (the "Security Registrar") duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Senior
Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Senior Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Senior Securities of this series are exchangeable for a like aggregate
principal amount of Senior Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Trust may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
Prior to due presentment of this Senior Security for registration of
transfer, the Trust, the Trustee and any agent of the Trust or the Trustee may
treat the Person in whose name this Senior Security is registered as the owner
hereof for all purposes, whether or not this Senior Security be overdue, and
neither the Trust, the Trustee nor any such agent shall be affected by notice to
the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Senior Security, or because of any indebtedness
evidenced thereby, shall be had against any promoter, as such or, against any
past, present or future shareholder, officer or director, as such, of the Trust
or of any successor, either directly or through the Trust 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 this Senior
Security by the Holder thereof and as part of the consideration for the issue of
the Senior Securities.
All terms used in this Senior Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SENIOR SECURITIES, INCLUDING THIS SENIOR SECURITY,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF VIRGINIA.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Trust has caused "CUSIP" numbers to be
printed on the Senior Securities as a convenience to the Holders of the Senior
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Senior Securities, and reliance may be placed
only on the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Senior Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Trust has caused this instrument to be duly
executed under its corporate seal this day of , .
UNITED DOMINION REALTY TRUST, INC.
By:_______________________
Name:________________
Title:_______________
Attest:
By:_______________________
Name:________________
Title:_______________
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Senior Securities of the series
designated "[designation of Senior Securities]" pursuant to the
within-mentioned Indenture.
NATIONSBANK OF VIRGINIA, N.A.,
as Trustee
By:________________________
Authorized Signatory<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Senior Security of United Dominion Realty Trust and
__________ hereby does irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorney to transfer said Senior Security on the books of the
within-named Trust with full power of substitution in the
premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with
the name as it appears on the first page of the within Senior
Security in every particular, without alteration or enlargement
or any change whatever.
Exhibit 4(i)(p)
REGISTERED PRINCIPAL AMOUNT
No.: $
CUSIP No.: _________
UNITED DOMINION REALTY TRUST, INC.
[Designation of Subordinated Security]
UNITED DOMINION REALTY TRUST, INC., a Virginia corporation (hereinafter
called the "Trust," which term shall include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, upon presentation, the principal sum of
DOLLARS on _____________, and to pay interest on the outstanding principal
amount thereon from _____________, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on _______ and _________ in each year, commencing _______________, at the rate
of __% per annum, until the entire principal amount hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Subordinated Security (or one or more
Predecessor Subordinated Securities) is registered at the close of business on
the Regular Record Date for such interest which shall be the ________ or
________ (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may either be paid to the Person in whose name this
Subordinated Security (or one or more Predecessor Subordinated Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Subordinated Securities of this series not more than 15 days
and not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Subordinated Securities may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. Payment of the principal of, Make-Whole Amount, if any, on,
and interest on this Subordinated Security will be made at the office or agency
of the Trust maintained for that purpose in the City of Richmond, State of
Virginia, or elsewhere as provided in the Indenture, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Trust payment of interest may be made by (i) check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register kept for the Subordinated Securities pursuant to Section 305 of the
Indenture (the "Security Register") or (ii) transfer to an account of the Person
entitled thereto located inside the United States.
This Subordinated Security is one of a duly authorized issue of securities
of the Trust (herein called the "Subordinated Securities"), issued and to be
issued in one or more series under an Indenture, dated as of August 1, 1994
(herein called the "Indenture"), between the Trust and Crestar Bank (herein
called the "Trustee," which term includes any successor trustee under the
Indenture with respect to the Subordinated Securities), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Trust, the Trustee and the Holders of the Subordinated Securities and of
the terms upon which the Subordinated Securities are, and are to be,
authenticated and delivered. This Subordinated Security is one of the series
designated as the "[designation of Subordinated Securities]," limited in
aggregate principal amount to $__________.
The Subordinated Securities may be redeemed at any time at the option of
the Trust, in whole or in part, upon notice of not more than 60 nor less than 30
days prior to the Redemption Date, at a redemption price equal to the sum of (i)
the principal amount of the Subordinated Securities being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Subordinated Securities.
The following definitions apply with respect to any redemption of the
Subordinated Securities of this series at the option of the Trust:
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Subordinated Security, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment
of each dollar of principal being redeemed or paid and the amount of interest
(exclusive of any interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of such dollar if such
redemption or accelerated payment had not been made, determined by discounting,
on a semiannual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Subordinated Securities being redeemed or paid.
"Reinvestment Rate" means .25% (one-fourth of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding sentence
and the Reinvestment Rate shall be interpolated or extrapolated from such yields
on a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate, the most
recent Statistical Release published prior to the date of determination of the
Make- Whole Amount shall be used.
"Statistical Release" means the statistical release designated "H.15 (519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by the Trust.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Trust on this Subordinated Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Trust, in each case, upon compliance by the Trust with certain conditions
set forth in the Indenture, which provisions apply to this Subordinated
Security.
If an Event of Default with respect to the Subordinated Securities shall
occur and be continuing, the principal of, and the Make-Whole Amount, if any,
on, the Subordinated Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Subordinated Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or
trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Subordinated Securities, the Holders of not less than 25% in
principal amount of the Subordinated Securities at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the Holders of a majority in
principal amount of the Subordinated Securities at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Subordinated Security for the enforcement of any payment of principal
hereof or any interest on or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trust and the rights of the Holders of the Subordinated Securities under the
Indenture at any time by the Trust and the Trustee with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Subordinated Securities. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Subordinated
Securities at the time Outstanding, on behalf of the Holders of all Subordinated
Securities, to waive compliance by the Trust with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Subordinated Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Subordinated Security and of any Subordinated Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Subordinated
Security.
No reference herein to the Indenture and no provision of this Subordinated
Security or of the Indenture shall alter or impair the obligation of the Trust,
which is absolute and unconditional, to pay the principal of, Make-Whole Amount,
if any, on, and interest on this Subordinated Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Subordinated Security is registrable in the Security
Register, upon surrender of this Subordinated Security for registration of
transfer at the office or agency of the Trust in any Place of Payment where the
principal of, Make-Whole Amount, if any, on, and interest on this Subordinated
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Trust and the Security Registrar for the
Subordinated Securities (the "Security Registrar") duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Subordinated Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Subordinated Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Subordinated Securities of this series are exchangeable for a
like aggregate principal amount of Subordinated Securities of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Trust may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
Prior to due presentment of this Subordinated Security for registration of
transfer, the Trust, the Trustee and any agent of the Trust or the Trustee may
treat the Person in whose name this Subordinated Security is registered as the
owner hereof for all purposes, whether or not this Subordinated Security be
overdue, and neither the Trust, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Holder of this Subordinated Security by the acceptance thereof agrees
that the indebtedness evidenced by this Subordinated Security is subordinated in
right of payment, to the extent and in the manner provided in Article Sixteen of
the Indenture, to the prior payment in full of all Senior Debt and that the
subordination is for the benefit of the holders of Senior Debt. The Holder
hereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effect such subordination as provided in the
Indenture and appoints the Trustee his attorney-in-fact for such purpose.
"Senior Debt" is defined in the Indenture as the principal of and interest on,
or substantially similar payments to be made by the Trust in respect of, the
following, whether outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) indebtedness of the Trust for money
borrowed or represented by purchase-money obligations, (b) indebtedness of the
Trust evidenced by notes, debentures, or bonds, or other securities issued under
the provisions of an indenture, fiscal agency agreement or other instrument, (c)
obligations of the Trust as lessee under leases of property either made as part
of any sale and lease-back transaction to which the Trust is a party or
otherwise, (d) indebtedness of partnerships and joint ventures which is included
in the Trust's consolidated financial statements, (e) indebtedness, obligations
and liabilities of others in respect of which the Trust is liable contingently
or otherwise to pay or advance money or property or as guarantor, endorser or
otherwise or which the Trust has agreed to purchase or otherwise acquire, and
(f) any binding commitment of the Trust to fund any real estate investment or to
fund any investment in any entity making such real estate investment; but
excluding, however, (1) any such indebtedness, obligation or liability referred
to in clauses (a) through (f) above as to which, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Securities, or ranks pari passu with the
Subordinated Securities, (2) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Trust to substantially the same
extent as or to a greater extent than the Subordinated Securities are
subordinated and (3) the Subordinated Securities. As used in the preceding
sentence the term "purchase-money obligations" shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other instrument (whether or
not secured by any lien or other security interest but excluding indebtedness or
obligations for which recourse is limited to the property purchased) issued or
assumed as all or a part of the consideration for the acquisition of property,
whether by purchase, merger, consolidation or otherwise, but shall not include
any trade accounts payable. A distribution may consist of cash, securities or
other property.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Subordinated Security, or because of any
indebtedness evidenced thereby, shall be had against any promoter, as such or,
against any past, present or future shareholder, officer or director, as such,
of the Trust or of any successor, either directly or through the Trust 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 this Subordinated Security by the Holder thereof and as part of
the consideration for the issue of the Subordinated Securities.
All terms used in this Subordinated Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SUBORDINATED SECURITIES, INCLUDING THIS SUBORDINATED
SECURITY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF VIRGINIA.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Trust has caused "CUSIP" numbers to be
printed on the Subordinated Securities as a convenience to the Holders of the
Subordinated Securities. No representation is made as to the correctness or
accuracy of such CUSIP numbers as printed on the Subordinated Securities, and
reliance may be placed only on the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Subordinated Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Trust has caused this instrument to be duly
executed under its corporate seal this day of , .
UNITED DOMINION REALTY TRUST, INC.
By:_______________________
Name:________________
Title:_______________
Attest:
By:_______________________
Name:________________
Title:_______________
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Subordinated Securities of the series designated
"[designation of Subordinated Securities]" pursuant to the within-mentioned
Indenture.
CRESTAR BANK, as Trustee
By:________________________
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Subordinated Security of United Dominion Realty Trust
and __________ hereby does irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorney to transfer said Subordinated Security on the books of
the within-named Trust with full power of substitution in the
premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Subordinated Security in every
particular, without alteration or enlargement or any change whatever.
Exhibit 5
Hunton & Williams
RIVERFRONT PLAZA, EAST TOWER
951 EAST BYRD STREET
RICHMOND, VIRGINIA 23219-4074
File No.: 27789.211
Direct Dial: (804) 788-8267
August 19, 1994
Board of Directors
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, Virginia 23219
Registration Statement on Form S-3
$400,000,008 of Offered Securities
Gentlemen:
We are acting as counsel for United Dominion Realty Trust, Inc. (the
"Company") in connection with the registration under the Securities Act of 1933
of debt securities ("Debt Securities"), Preferred Stock, no par value
("Preferred Stock"), and Common Stock, $1 par value ("Common Stock"), of the
Company having an aggregate maximum public offering price of $400,000,000 (the
"Offered Securities"). The Offered Securities are described in the Registration
Statement on Form S-3 of the Company (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") on August 19,
1994. In connection with the filing of the Registration Statement you have
requested our opinion concerning certain corporate matters.
We are of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the Commonwealth of Virginia.
2. When the Offered Securities have been sold as described in the
Registration Statement, the Offered Securities (to the extent consisting of
Preferred Stock and/or Common Stock) will be legally issued, fully paid and
nonassessable and (to the extent consisting of Debt Securities) will be legally
issued, fully paid and nonassessable and will be binding obligations of the
Company.
We consent to the filing of this opinion with the Commission as an exhibit
to the Registration Statement and to the reference to us in the Prospectus
included therein.
Very truly yours,
HUNTON & WILLIAMS
Exhibit 12
United Dominion Realty Trust, Inc.
Computation of Ratio of Earnings to Fixed Charges
(Dollars in thousands)
<TABLE>
Year Ended Six Mos. Ended
December 31, June 30,
1989 1990 1991 1992 1993 1993 1994
<S> <C> <C> <C> <C> <C> <C> <C>
Income before
extraordinary item $ 5,572 $ 4,973 $ 3,604 $ 6,577 $ 11,197 $ 4,839 $ 7,482
Add:
Portion of rents
representative
of the interest factor 37 47 103 126 143 68 78
Interest on indebtedness 9,934 9,435 11,859 11,697 16,938 8,387 10,474
Amortization of debt expense 51 80 59 122 321 158 152
Income as adjusted $15,594 $14,535 $15,625 $18,522 $28,599 $13,452 $18,186
Add:
Depreciation on real estate 8,762 10,464 $12,845 $15,732 $19,764 $ 9,516 $12,020
Other depreciation and
amortization 150 93 160 178 275 258 371
Other income (755) (34)
(Gains) losses on investments (1,433) (417) (26) 1,564 89 0 0
Other 450
Funds from operations
as adjusted $22,318 $24,641 $28,604 $35,996 $48,727 $23,226 $31,027
Fixed charges-
Interest on indebtedness $ 9,934 $ 9,435 $11,859 $11,697 $16,938 $8,387 $10,474
Amortization of debt expense 51 80 59 122 321 158 152
Capitalized interest 717 597 291 73 0 0 0
Portion of rents representative
of the interest factor 37 47 103 126 143 68 78
Fixed charges $10,739 $10,159 $12,312 $12,018 $17,402 $8,613 $10,704
Ratio of earnings to
fixed charges 1.45 1.43 1.27 1.54 1.64 1.56 1.70
Ratio of funds from operations
to fixed charges 2.08 2.43 2.32 3.00 2.80 2.70 2.90
</TABLE>
EXHIBIT 23(a)
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 United Dominion Realty Trust, Inc. for the
registration of debt securities, preferred stock, and common
stock with a proposed maximum aggregate offering price of
$400,000,000 and to the incorporation by reference therein of our
report dated March 3, 1994, with respect to the financial
statements and schedules of United Dominion Realty Trust, Inc.
included in or incorporated by reference in its annual report
(Form 10-K) for the year ended December 31, 1993, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Richmond, Virginia
August 17, 1994
Exhibit 23(b)
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
United Dominion Realty Trust, Inc.
Richmond, Virginia
We hereby consent to the incorporation by reference of our
report dated February 4, 1994, relating to the combined
Historical Summary of Gross Income and Direct Operating
Expenses of Holly Tree Park Apartments, Knolls at Newgate and
Mallard Green Apartments for the year ended December 31,
1993, appearing in the May 26, 1994 Form 8K filed by United
Realty Trust, Inc. and in the shelf registration statement
(Form S-3) and related prospectus of United Dominion Realty
Trust, Inc. for the registration of $400,000,000 of debt
securities, preferred stock or common stock.
We also consent to the reference to us under the caption
"Experts" in the Prospectus.
BDO SEIDMAN
Philadelphia, Pennsylvania
August 18, 1994
Exhibit 23(c)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
United Dominion Realty Trust, Inc.
We consent to the reference to our firm under the
caption "Experts" and to the incorporation by reference of our
report dated May 19, 1994, with respect to the Combined Statement
of Rental Operations of Clover Financial Partnership Properties
for the year ended December 31, 1993, filed with the Securities
and Exchange Commission on Form 8-K dated May 26, 1994 in the
Shelf Registration Statement (Form S-3) and related Prospectus of
United Dominion Realty Trust, Inc. for the Registration of
$400,000,000 of Debt Securities, Preferred Stock or Common Stock.
/s/ Alloy, Silverstein, Shapiro, Adams, Mulford & Co.
ALLOY, SILVERSTEIN, SHAPIRO, ADAMS, MULFORD & CO.
August 17, 1994
Exhibit 23(d)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
United Dominion Realty Trust, Inc.:
We consent to the reference to our firm under the caption
"Experts" and to the incorporation by reference of our reports
(a) dated May 12, 1994, with respect to the Statement of Rental
Operations of The Shire Apartments for the year ended December
31, 1993, filed with the Securities and Exchange Commission on
Form 8-K/A dated June 7, 1994 (b) dated May 13, 1994, with
respect to the Statement of Rental Operations of Lakewood Place
Apartments for the year ended December 31, 1993, filed with the
Securities and Exchange Commission on Form 8-K/A dated June 7,
1994 (c) dated May 24, 1994, with respect to the Statement of
Rental Operations of River Place Apartments for the year ended
December 31, 1993, filed with the Securities and Exchange
Commission on Form 8-K/A dated June 7, 1994 (d) dated May 24,
1994, with respect to the Statement of Rental Operations of
Lakeside North Apartments for the year ended December 31, 1993,
filed with the Securities and Exchange Commission on Form 8-K/A
dated June 7, 1994 (e) dated June 24, 1994, with respect to the
Statement of Rental operations of Walnut Creek Apartments for
the year ended December 31, 1993, filed with the Securities and
Exchange Commission on Form 8-K/A dated July 28, 1994 in the
Shelf Registration Statement (Form S-3) and related Prospectus
of United Dominion Realty Trust, Inc. for the Registration of
$400,000,000 of Debt Securities, Preferred Stock or Common
Stock.
L. P. Martin & Company, P.C.
Certified Public Accountants
August 17, 1994
Exhibit 25(b)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CRESTAR BANK
(Exact name of trustee as specified in its charter)
Virginia 54-1109779
(State of Incorporation) (I.R.S. Employer
Identification No.)
919 East Main Street
Richmond, Virginia 23219
(Address of principal executive officers) (Zip Code)
United Dominion Realty Trust, Inc.
(Exact name of obligor as specified in its charter)
Virginia 54-0857512
(State of Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
10 South 6th Street, Suite 203
Richmond, VA 23219-3802
(Address principal executive officers) (Zip Code)
Subordinated Debt Securities
(Title of indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to trustee:
(a) Name and address of each examining or supervising authority to which
it its subject.
Bureau of Financial Institutions, State Corporation Commission of
Virginia , Richmond, Virginia.
The Board of Governors of the Federal Reserve System, Washington,
DC and Federal Reserve Bank of Richmond, Virginia
Federal Deposit Insurance Corporation, Washington, DC
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise trust powers.
Item 2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee or its parent, describe each such affiliation.
No such affiliation exists.
Item 3. Voting Securities of the Trustee.
Furnish the following information of the Trustee.
August 1, 1994
COL. A COL. B
Title of Class Amount Outstanding
Common stock, par value $47.875 per share. 37,721,218
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture under any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information.
(a) Title of the securities outstanding under each such other indenture.
Newport News Redevelopment and Housing Authority of the City of
Housing Authority Multi-Family Raleigh, NC Multi-Family Housing
Mortgage Revenue Bond, (Heritage Mortgage Revenue Bonds Series 1990
Project) Series 1989 (Oakwood Villas Project)
South Carolina State Housing Finance Harrisonburg Redevelopment and
and Development Authority Housing Authority Multi-Family
Multi-Family Housing Mortgage Housing Revenue Refunding Bonds
Revenue Bonds (United Dominion-Plum (United Dominion Projects) Series
Chase) Series 1991 1992
Howard County, MD 1993 Revenue Alexandria Redevelopment and Housing
Refunding Bonds (Eden Commons and Authority Multi-Family Housing
Braeland Commons Projects Series Revenue Bonds Series 1994 (United
1993A &B Dominion-Parkwood Court)
City of Roanoke Redevelopment and South Carolina Housing Finance and
Housing Authority Multi-Family Development Authority Multi-Family
Housing Revenue Refunding Bonds, Housing Mortgage Revenue Bonds
Series 1994 (United Dominion-Laurel (United Dominion-Forestbrook) Series
Ridge) 1994
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting under any such other indenture, including a statement as to
how the indenture securities will rank interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship as compared with the
the securities issued under such other indenture.
There is no conflicting interest within the meaning of Section
310(b)(1) of the Act because the indenture securities being
registered are not in default. The indenture securities are
subordinated to the obligor's obligations relating to the tax exempt
obligations described in Item 4(a) above, all of which are secured by
real estate.
Item 5. Interlocking Directorates and Similar Relationships with the Obligator
or Underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or any underwriter for the obligor, identify each such person having any
such connection and state the nature of each such connection.
No such connection exists.
Item 6. Voting Securities of the trustee Owned by the Obligor or its
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
August 1, 1994
COL. A COL. B COL. C COL. D
Percentage of
voting securities
Name of Title of Amount represented by
owner class owned amount by
beneficially in Col. C.
The amount of voting securities of the Trustee owned beneficially by
the obligor and its directors, partners and executive officers, taken as a
group, does not exceed one percent of the outstanding voting securities of the
Trustee.
Item 7. Voting Securities of the Trustee Owned by the Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner and executive officer of each director, partner and executive
officer of each such underwriter.
August 1, 1994
COL. A COL. B COL. C COL. D
Percentage of
voting securities
Name of Title of Amount represented by
owner class owned amount by
beneficially in Col. C.
The amount of voting securities of the Trustee owned beneficially by the
underwriter and its directors, partners and executive officers, taken as a
group, does not exceed one percent of the outstanding voting securities of the
Trustee.
Item 8. Voting Securities of the Obligator Owned or Held by the Trustees.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee.
August 1, 1994
COL. A COL. B COL. C COL. D
Amount owned
beneficially
Whether the or held as
securities are collateral Percentage of class
voting or security for represented by
nonvoting obligations amount given
securities in default in Col. C
The amount of voting securities of the obligor owned beneficially by the trustee
and its directors, partners and executive officers, taken as a group, does not
exceed one percent of the outstanding voting securities of the obligor.
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securest of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
August 1, 1994
COL. A COL. B COL. C COL. D
Amount owned
beneficially
or held as
Name of collateral Percentage of class
issuer and security for represented by
title of Amount obligations amount given
class outstanding in default in Col. C
by trustee
None.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than subsidiary, of the obligor, furnish the
following information as to the voting securities for such person.
August 1, 1994
COL. A COL. B COL. C COL. D
Amount owned
beneficially
or held as
Name of collateral Percentage of class
issuer and security for represented by
title of Amount obligations amount given
class outstanding in default in Col. C
by trustee
None.
Item 11. Ownership of Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the trustee.
August 1, 1994
COL. A COL. B COL. C COL. D
Amount owned
beneficially
or held as
Name of collateral Percentage of class
issuer and security for represented by
title of Amount obligations amount given
class outstanding in default in Col. C
by trustee
None.
Item 12. List of Exhibits.
Listed below all exhibits filed as a part of this statement of
eligibility and qualification.
*1. A copy of the articles of incorporation of the Trustee as now in
effect. (Incorporated by reference from Exhibit 1 filed with T-1
Statement, Registration No. 22-20645.)
*2. A copy of the certificate of authority of the Trustee to commence
business. (Included in Exhibit 1 which is incorporated by reference
from Exhibit 1 field with T-1 Statement, Registration No. 22-20645.)
*3. A copy of the certificate of authority of the Trustee to exercise
corporate trust powers. (Included in Exhibit 1 which is incorporated
by reference from Exhibit 1 which is incorporated by reference from
Exhibit 1 filed with T-1 Statement, Registration No. 22-2-0645.)
4. A copy of the existing by-laws of the Trustee.
5. None.
6. The consent of the Trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
* The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibits heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
Note
Items 6, 7, and 9 may, however, be considered as correct unless
amended by an amendment to this Form T-1.
In answering any items in this statement of eligibility and
qualification which relates to matters peculiarly within the knowledge of the
obligor or underwriters. The Trustee has relied upon the information furnished
to it by the obligor and underwrites and the Trustee disclaims responsibility
for the accuracy or completeness of such information.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 as
amended by the Trust Indenture Reform Act of 1990, the trustee, Crestar Bank, a
corporation organized and existing under the laws of the Commonwealth of
Virginia, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Richmond, and the Commonwealth of Virginia, on the 18th day of August, 1994.
CRESTAR BANK
By: Lee B. Bedell
Name: Lee B. Bedell
Title: Vice President
Exhibit 4
Bylaws
and
Administrative Regulations
of
Crestar Bank
Incorporated Under The Laws
Of The Commonwealth Of Virginia
Adopted December 20, 1979
(And Including Amendments Adopted
Thereto Through February 26, 1993)
<PAGE>
Index
To
Bylaws
And
Administrative Regulations
Of
Crestar Bank
Article I - Meetings of Stockholders
1.1 - Place of Meetings ...........................................1
1.2 - Annual Meetings..............................................1
1.3 - Special Meetings.............................................1
1.4 - Notice of Meetings...........................................1
1.5 - Quorum.......................................................1
1.6 - Voting.......................................................1
1.7 - Conduct of Meetings..........................................2
1.8 - Inspector....................................................2
Article II - Board Of Directors
2.1 - General Powers...............................................2
2.2 - Number Of Directors..........................................2
2.3 - Election of Directors........................................2
2.4 - Term of Office...............................................2
2.5 - Quorum.......................................................2
2.6 - Meetings of the Board........................................3
2.7 - Compensation.................................................3
2.8 - Eligibility..................................................4
Article III - Committees
3.1 - Standing Committees..........................................4
3.2 - Executive Committee..........................................5
3.3 - Audit Committee..............................................5
3.4 - Human Resources and Compensation Committee...................6
3.5 - Area Boards..................................................6
3.6 - Other Committees.............................................6
Article IV - Officers
4.1 - Number and Manner of Election or Appointment.................7
4.2 - Term of Office...............................................7
4.3 - Removal......................................................7
4.4 - Resignations.................................................7
4.5 - Vacancies, New Offices and Promotions........................8
4.6 - Chairman of the Board........................................8
4.7 - President....................................................8
4.8 - Vice Chairman of the Board of Directors......................8
4.9 - Secretary....................................................8
4.10 - Treasurer....................................................9
4.11 - Auditor......................................................9
4.12 - Powers and Duties of Other Officers..........................9
4.13 - Bonds........................................................9
Article V - Capital Stock
5.1 - Certificates.................................................9
5.2 - Lost, Destroyed and Mutilated Certificates...................10
5.3 - Transfer of Stock............................................10
5.4 - Closing of Transfer Books and Fixing Record Date.............10
Article VI - Miscellaneous Provisions
6.1 - Seal.........................................................10
6.2 - Voting of Stock Held.........................................11
6.3 - Fiscal Year..................................................11
Article VII - Emergency Bylaws........................................11
Article VIII - Indemnification Of Directors And Officers..............12
Article IX - Amendments...............................................13
Administrative Regulation I
Sale, Purchase and Pledge or Deposit of Securities Owned by the Bank
1.1 - Sale, Purchase and Pledge or Deposit of Securities...........14
Administrative Regulation II
Exercise of Fiduciary Powers
2.1 - Certification, Authentication, etc. of Securities
and Documents..............................................14
2.2 - Qualification as Fiduciary...................................15
2.3 - Acceptance of Trusts.........................................15
2.4 - Purchase and Sales of Securities.............................15
2.5 - Deposit of Securities Under Plans Reorganizations, etc. .....15
2.6 - Sales, and Leases of Real Estate and Tangible Personal
Property: Foreclosure and Extension of Mortgages...........16
2.7 - All Acts Done Under the Foregoing Paragraphs.................16
2.8 - Voting Stock and Other Securities............................16
Administrative Regulation III
Borrowing Money, Rediscount of Bills and Notes, Buying or Selling Funds
3.1 - Borrowed Money, Security Therefor and Rediscounts............16
3.2 - Purchase and Sale of Surplus Funds...........................17
Administrative Regulation IV
Release of Encumbrances
4.1 - Release of Encumbrances......................................17
Administrative Regulation V
Checks, Drafts, Orders, etc.
5.1 - Bank - except Trust..........................................17
5.2 - Trust Group..................................................17
Administrative Regulation VI
Signature Guarantee, Confirmations, etc.
6.1 - Signature Guarantee..........................................17
6.2 - Confirmations................................................18
Administrative Regulation VII
Responsibility of Area Boards
7.1 - Responsibilities of Area Boards..............................18
Administrative Regulation VIII
Deposit and Security Accounts
8.1 - Deposit Accounts.............................................18
8.2 - Security Accounts............................................19
<PAGE>
Crestar Bank
Bylaws
Article I
Meetings Of Stockholders
1.1 Place of Meetings. All meetings of the stockholders shall be held at such
place, either within or without the State of Virginia, as may be designated by
the Board of Directors.
1.2 Annual Meeting. The annual meeting of stockholders, for the election of
Directors and transaction of such other business as may come before the meeting,
shall be held at such time and date as designated by the Board of Directors.
1.3 Special Meetings. Special meetings of the stockholders for any purpose or
purposes may be called at any time by the Chairman of the Board, by the
President, or by a majority of the Board of Directors. No business shall be
transacted and no corporate action shall be taken at a special meeting other
than that stated in the notice of the meeting.
1.4 Notice of Meetings. Unless waived in the manner prescribed by law, notice
of each meeting of stockholders shall be given in writing, not less than ten nor
more than sixty days before the day of the meeting, or such other notice as is
required by law, to each stockholder entitled to vote at such meeting and shall
state the place, date and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. If mailed,
such notice shall be deemed to have been given when deposited in the United
States mail, with postage thereon prepaid, directed to the stockholder at his
address as it appears on the stock transfer books of the Bank.
1.5 Quorum. Any number of stockholders together holding a majority of the
outstanding shares of capital stock entitled to vote with respect to the
business to be transacted, who shall be present in person or represented by
proxy at any meeting duly called, shall constitute a quorum for the transaction
of business. If less than a quorum shall be in attendance at the time for which
a meeting shall have been called, the meeting may be adjourned from time to time
by a majority of the stockholders present or represented by proxy without notice
other than by announcement at the meeting until a quorum shall attend.
1.6 Voting. At any meeting of the stockholders, each stockholder of a class
entitled to vote on any matter coming before the meeting shall, as to such
matter, have one vote, in person or by proxy, for each share of capital stock of
such class standing in his name on the stock transfer books of the Bank on the
date, not more than seventy days prior to such meeting, as designated by the
Board of Directors, for the purpose of determining stockholders entitled to
vote, as the date on which the stock transfer books of the Bank are to be closed
or as the record date.
Every proxy shall be in writing and signed by the stockholder entitled to vote
or signed by his duly authorized attorney-in-fact. At a meeting where a quorum
is present, the affirmative vote of the majority of the shares represented at
the meeting and entitled to vote shall be the act of the stockholders.
1.7 Conduct of Meetings. At each meeting of the stockholders, the Chairman of
the Board, the President, or a Vice Chairman of the Board shall act as chairman
and preside. In their absence, the Chairman of the Board may designate another
officer of the Bank who need not be a Director to preside. The Secretary of the
Bank or an Assistant Secretary, or in their absence, a person whom the chairman
of such meeting shall appoint, shall act as secretary of such meeting.
1.8 Inspectors. An appropriate number of inspectors for any meeting of
stockholders may be appointed by the chairman of such meeting. Inspectors so
appointed will open and close the polls, will receive and take charge of proxies
and ballots, and will decide all questions as to the qualifications of voters,
validity of proxies and ballots, and the number of votes properly cast.
Article II
Board of Directors
2.1 General Powers. The business and affairs of the Bank shall be managed by
the Board of Directors and, except as otherwise expressly provided by law, in
accordance with the Articles of Incorporation or these Bylaws.
2.2 Number of Directors. The Board of Directors shall consist of not less than
five nor more than twenty-seven Directors, the exact number to be designated by
the Board, and a majority of whom shall be citizens of the Commonwealth of
Virginia.
2.3 Election of Directors. Directors shall be elected at each annual meeting
of the stockholders. Any vacancy occurring in the Board of Directors, including
a vacancy resulting from an increase by not more than two in the number of
authorized Directors, may be filled by the majority vote of the remaining
Directors, though less than a quorum of the Board, unless the vacancy is sooner
filled by the stockholders.
2.4 Term of Office. Each Director (unless he sooner dies, resigns, or is
removed from office) shall hold office until the next annual meeting of
stockholders or until his successor shall have been elected and qualifies.
2.5 Quorum. A majority of the number of Directors pursuant to these Bylaws at
the time of the meeting, shall constitute a quorum for the transaction of
business. The act of a majority of Directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. Less than a quorum
may adjourn any meeting.
2.6 Meetings of the Board.
(a) Place of Meetings. Meetings of the Board of Directors shall be held at
such place and at such time, either within or without the State of Virginia as
may be designated by the Board, or upon call of the Chairman of the Board or the
President.
(b) Organizational Meeting. An organizational meeting shall be held as soon as
practicable after the adjournment of the annual meeting of stockholders at which
the Board of Directors is elected, for the purpose of taking the oaths of the
Directors, electing officers, appointing committees for the ensuing year, and
for transacting such other business as may properly come before the meeting.
(c) Regular Meetings. Regular meetings of the Board of Directors shall be held
at such time and place as the Board may designate, or upon call of the Chairman
of the Board, or the President, and no notice thereof need be given.
(d) Special Meetings. Special meetings of the Board of Directors may be held
at any time or place upon the call of the Chairman of the Board or the
President, or any three members of the Board.
Notice of each such meeting shall be given to each Director by mail at his
business or residence address at least forty-eight hours before the meeting, or
by telephoning or telegraphing notice to him at least twenty-four hours before
the meeting. Meetings may be held at any time without notice if all of the
Directors are present, or if those not present waive notice in writing either
before or after the meeting. The notice of meetings of the Board need not state
the purpose of the meeting.
(e) Conduct of Meetings. At each meeting of the Board of Directors, the
Chairman of the Board, the President, or a Vice Chairman of the Board shall act
as chairman and preside. In their absence, the Chairman of the Board may
designate another officer of the Bank who need not be a Director, to preside.
The Secretary of the Bank or an Assistant Secretary, or in their absence, a
person whom the chairman of such meeting shall appoint, shall act as secretary
of such meeting.
Any action required or permitted to be taken by the Board may be taken without a
meeting if all Directors consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents of the directors
shall be filed with the minutes of the proceedings of the Board meeting.
2.7 Compensation. Directors, and members of any committee of the Board who are
not officers of the Bank or subsidiaries thereof, shall be paid such
compensation as the Board of Directors from time to time may determine for his
services as Director, or as Chairman or a member of any committee of the Board,
and shall, in addition, be reimbursed for such expenses as shall be incurred by
him in the performance of his duties. Nothing herein shall preclude Directors
and members of any committee of the Board from serving the Bank in other
capacities and receiving compensation therefor.
2.8 Eligibility. No person shall be eligible to serve as a Director unless,
when his term commences, he is not less than twenty-one years of age nor more
than seventy years of age. No Director shall be eligible for reelection after he
has attained the age of 70 or after his separation from the business or
professional organization with which he was primarily associated at the time he
first became a Director, unless elected after becoming associated with another
business or professional organization. Except for the Chief Executive Officer,
no Director who is an officer of the Corporation or any subsidiary shall be
eligible for reelection after he has retired.
Article III
Committees
3.1 Standing Committees.
(a) Number. There shall be three standing committees of the Board of
Directors. The standing committees are as follows: Executive, Audit, and Human
Resources and Compensation. In order to broaden the experience of Directors, it
shall be the policy of the Bank to seek rotation among Directors as members of
the various committees.
At the first meeting of the Board of Directors after the annual meeting of the
stockholders, the Chairman of the Board shall recommend the membership of each
committee and the Board shall elect the membership of each committee, who shall
serve at the pleasure of the Board.
(b) Quorum. A majority of the number of members of any standing committee
shall constitute a quorum for the transaction of business. The action of a
majority of members present at a committee meeting at which a quorum is present
shall constitute the act of the committee.
(c) Conduct of Meetings. Any action required or permitted to be taken by the
committee may be taken without a meeting if all members of the committee consent
in writing to the adoption of a resolution authorizing the action. The
resolution and written consents of the members shall be filed with the minutes
of the proceedings of the committee.
(d) Meetings and Minutes. Subject to the foregoing, and unless the Board shall
otherwise decide, each committee shall fix its rules of procedure, determine its
action and fix the time and place of its meetings. Special meetings of a
committee may be held at any time upon the call of the Chairman of the Board,
the Chairman of the Committee, or any two members of the committee. Each
committee shall keep minutes of all meetings which shall be at all times
available to Directors. Action taken by a committee shall be reported promptly
to the Board but not less frequently than quarterly.
(e) Term of Office. A member of any standing committee shall hold office until
the next organizational meeting of the Board of Directors or until he is removed
or ceases to be a Director.
(f) Vacancies. Should a vacancy occur on any standing committee resulting from
any cause whatsoever, the Board, by resolution, may fill such vacancy at any
time.
(g) Resignation and Removal. A member of a standing committee may resign at
any time by giving written notice of his intention to do so to the Chairman of
the Board or the Secretary of the Corporation, and may be removed at any time by
the Board of Directors.
3.2 Executive Committee.
(a) How Constituted. The Executive Committee shall consist of not less than
five nor more than nine Directors, including the Chairman of the Board, who
shall be Chairman of the Committee, and the President. If the Chairman of the
Board will not be present at a meeting, the President shall preside, and if the
President will not be present, the Chairman may designate another officer of the
Bank, who need not be a member of the Committee or a Director, to preside at the
meeting.
(b) Primary Responsibilities. The primary responsibilities of the Executive
Committee shall consist of: exercise of all powers of the Board of Directors
between meetings of the Board except as to matters exclusively reserved to the
Board under law; annual review of management's financial goals and business
plan; service as the Board's steering committee on capital, liquidity,
asset/liability and credit issues, as well as the Board's advisor on mergers and
acquisition and corporate structure matters; review of loan policy and
procedure, the quarterly classification of loans and the adequacy of the
allowance for loan loss reserves; review and recommendation to the Board of the
annual capital budget and authorization of capital expenditures within a level
established by the Board; supervision over the exercise of fiduciary powers;
oversight over the Bank's contributions policy, approval of the annual
contributions budget, and authorization or recommendation to the Board of larger
individual contributions as specified by the Board; joint consultation with the
Human Resources and Compensation Committee and recommendation to the Board of
any titling changes and management succession involving the top five officers of
the Bank; and evaluation and recommendation to the Board of nominees for
election as Directors.
3.3 Audit Committee
(a) How Constituted. The Audit Committee shall consist of not less than five
nor more than nine Directors, none of whom shall be officers of the Bank or any
subsidiary thereof. The Chairman of the Committee shall be appointed by the
Board of Directors upon recommendation of the Chairman of the Board. If the
Chairman of the Committee will not be present at a meeting, he may designate any
member of the Committee to preside at the meeting.
(b) Primary Responsibilities. The primary responsibilities of the Audit
Committee shall consist of: recommendation of the selection of independent
accountants and auditors; review of the scope of the accountant's examination
and approval of any non-audit services to be performed by the independent
accountants; review of examination reports by the independent accountants and
regulatory agencies; approval of, and review of the results of, the internal
audit plan; review of the procedures for establishing the allowance for loan
losses and monitoring of the credit process review function; review of Crestar's
Community Reinvestment Act policy, plans and performance; review of internal
programs to assure compliance with laws and regulations and the adequacy of
internal controls; review of the adequacy of insurance coverage; and review of
compliance with the Standards of Conduct.
3.4 Human Resources and Compensation Committee.
(a) How Constituted. The Compensation Committee shall consist of not less than
five nor more than eight Directors, none of whom shall be officers of the
Corporation or any subsidiary thereof. The Chairman of the Committee shall be
appointed by the Board of Directors upon recommendation of the Chairman of the
Board. If the Chairman of the Committee will not be present at the meeting, he
may designate any member of the Committee to preside at the meeting.
(b) Primary Responsibilities. The primary responsibilities of the Human
Resources and Compensation Committee shall consist of: review and approval of
major compensation policies; determination of appropriate performance targets
under the Bank's benefit plans; recommendation to the Board of salaries, and
approval of other compensation to be paid or awarded to, the highest level and
most highly paid officers; recommendation of officers requiring Board approval
and joint consultation with the Executive Committee and recommendation to the
Board of any titling changes and management succession involving the top five
officers of the Bank; review of other matters pertaining to management
structure, succession planning and executive development; approval of election
of all Executive Vice President level officers not requiring Board approval;
review and recommendation for Board approval of new and significant changes to
qualified and non-qualified benefit plans; and recommendation for Board approval
of appropriate changes in Director compensation.
3.5 Area Boards. The Board of Directors or the Chairman of the Board or his
designee may appoint, from time to time, Area Boards for any one or more of the
Bank's locations, whose members may consist of such persons, including officers
and Directors, as may be deemed proper. Area Boards shall serve at the pleasure
of the Board of Directors or the Chairman of the Board and their duties shall be
those prescribed in the Administrative Regulations as in effect from time to
time.
3.6 Other Committees. The Board of Directors may, by resolution establish such
other committees of the Board as it may deem advisable. The members, terms and
authority of such committees shall be as set forth in the resolutions.
The Chairman of the Board may establish such other committees of the Board of
Directors as he deems advisable, and may appoint the members of such committees.
Any such committees shall have the authority to consider, review, advise and
recommend to the Chairman of the Board with respect to such matters as may be
referred to it by the Chairman of the Board, but shall have no authority to act
for the Bank except with the prior approval of the Board of Directors.
Article IV
Officers
4.1 Number and Manner of Election or Appointment. The officers of the Bank
shall be:
(a) The Chairman of the Board, the President, one or more Vice Chairmen of the
Board, a Secretary, a Treasurer, an Auditor, one or more Regional Presidents,
and one or more corporate Executive Vice Presidents, each of whom shall be
elected by the Board;
(b) one or more local Presidents and regional or local Executive Vice
Presidents, each of whom shall be elected by the Human Resources and
Compensation Committee; and
(c) such other officers as the Chairman of the Board or President may deem
necessary, each of whom shall be appointed by the Chairman of the Board,
President or a Vice Chairman. Officers of subsidiaries of the Bank shall be
elected and have their compensation set in the same manner as comparable
officers of the Bank.
One person may hold more than one office except that the offices of President
and Secretary may not be held by the same person.
4.2 Term of Office. The officers designated in Section 4.1(a) shall be elected
annually by the Board at its organizational meeting. Such officers shall each
hold office until the next organizational meeting of the Board and until their
successors are elected.
The officers designated in Section 4.1(b) shall be elected annually by the Human
Resources and Compensation Committee at its first meeting following the Annual
Meeting of Stockholders. Such officers shall each hold office until the next
such meeting of the Committee and until their successors are elected. The
officers designated in Section 4.1(c) may be appointed at any time by the
Chairman of the Board, the President or a Vice Chairman.
4.3 Removal. Any officer may be removed from office, with or without cause, at
any time, by the Board of Directors. Any officer elected by the Human Resources
and Compensation Committee may be removed from office by the Committee with or
without cause at any time. Any officer appointed by the Chairman of the Board,
the President or a Vice Chairman may be removed from office by him with or
without cause at any time.
4.4 Resignations. Any officer may resign at any time by giving written notice
to the Board, Human Resources and Compensation Committee, Chairman of the Board,
President, or the Secretary. Such resignation shall be effective on the date of
receipt of such notice or any later date specified therein, and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
4.5 Vacancies, New Offices and Promotions. A vacancy from any cause in any
office may be filled at any time for the unexpired portion of the term, in the
manner prescribed in these Bylaws for regular election or appointment to such
office. New offices may be created and filled, and the promotions and changes in
officers' titles may be made at any time in the manner prescribed in these
Bylaws for regular election or appointment to such office.
4.6 Chairman of the Board. The Chairman of the Board shall be the Chief
Executive Officer and shall have general supervision of the policies and
operations of the Bank, subject to the direction and control of the Board. He
shall preside at all meetings of the stockholders, the Board of Directors and
the Executive Committee. He shall be responsible for extending lines of credit
and other loan commitments, for making loans and for discounting acceptable
trade paper. All such extensions of credit shall be based on acceptable credit
risk. Subject to his executive authority and control, the Chairman of the Board
may delegate specific loan authority to officers and employees of the Bank. He
shall have the power to sign checks, orders, contracts, leases, notes, drafts
and other documents and instruments in connection with the business of the Bank,
and have such other powers and perform such other duties as shall be designated
by the Board of Directors or as may be incidental to his office. The Chairman of
the Board shall have the authority to appoint officers of the Bank below the
rank of Executive Vice President.
4.7 President. The President shall participate in the supervision of the
policies and management of the Corporation, and may, if so designated by the
Board of Directors, be the chief administrative officer of the Corporation. He
shall perform all duties incidental to the office of President and shall perform
such other duties as may be assigned to him from time to time by the Board of
Directors or the Chairman of the Board. In the absence of the Chairman of the
Board, he shall preside at meetings of stockholders, the Board of Directors and
the Executive Committee. He shall have the same power to sign for the
Corporation and to appoint officers as prescribed in these Bylaws for the
Chairman of the Board.
4.8 Vice Chairman of the Board of Directors. A Vice Chairman of the Board
shall participate in the supervision of the policies and operations of the Bank,
and shall have such other duties as may be assigned to him from time to time by
the Board of Directors or the Chairman of the Board. In the absence of the
Chairman of the Board and the President, a Vice Chairman, as designated by the
Chairman of the Board, shall preside at meetings of the stockholders and of the
Board of Directors. A Vice Chairman shall have the authority to appoint officers
of the Bank below the rank of Executive Vice President.
4.9 Secretary. The Secretary shall: a) keep the minutes of all meetings of the
Stockholders, the Board of Directors, the Executive Committee, and such other
Committees as the Board may designate; b) see that all notices of such meetings
are given in accordance with these Bylaws or as required by law; c) be custodian
of the corporate records and of the seal of the Corporation and have authority
to affix the seal to any documents requiring such seal and to attest the same;
d) sign, with the Chief Executive Officer, certificates for shares of the
Corporation, the issuance of which shall have been authorized by resolution of
the Board of Directors; and e) in general perform all duties incident to the
office of Secretary and such other duties as from time to time may be assigned
to him by the Board of Directors or the Chief Executive Officer. In the absence
of the Secretary, an Assistant Secretary shall act in his stead.
4.10 Treasurer. The Treasurer shall perform such duties with respect to
securities and funds of the Bank as may be prescribed by the Board of Directors
or the Chief Executive Officer, and such other duties as may be incidental to
the office of Treasurer.
4.11 Auditor. The Auditor shall have general supervision over the internal
audit of the Bank and its subsidiaries. He shall be responsible to the Board of
Directors, through the Audit Committee, for independently evaluating the
adequacy, effectiveness, and efficiency of the Bank's systems of internal
control and of employee compliance therewith. He shall have the duty of
reporting his findings and recommendations to the Audit Committee at least
quarterly on any matters concerning the Bank, except those with respect to
credit quality, responsibility for which has been vested in the officer in
charge of credit administration. Should the Auditor deem any matter to be of
special importance or his independence to be in jeopardy, he shall report
immediately to the Chairman of the Audit Committee or, in his absence, any
member of the Committee. The Auditor shall have such other duties and perform
such special audits and examinations as may be prescribed from time to time by
the Audit Committee or the Board of Directors. For administrative purposes, the
Auditor shall be accountable to the Chief Executive Officer.
4.12 Powers and Duties of Other Officers. The powers and duties of all other
officers of the Bank shall be those usually pertaining to their respective
offices, subject to the direction and control of the Board of Directors and as
otherwise provided in these Bylaws, or as prescribed by the Chief Executive
Officer.
4.13 Bonds. Each officer and employee of the Bank shall give bond covering the
honest and faithful performance of his duties. The form and amount of such
bonds, and the name of the company providing the surety, shall be approved
annually by the Board of Directors at its organizational meeting, and premiums
thereon to be paid by the Bank.
Article V
Capital Stock
5.1 Certificates. The shares of capital stock of the Bank shall be evidenced
by certificates in forms prescribed by the Board of Directors and executed in
any manner permitted by law and stating thereon the information required by law.
Transfer agents and/or registrars for one or more classes of the stock of the
Bank may be appointed by the Board of Directors and may be required to
countersign certificates representing stock of such class or classes. If any
officer whose signature or facsimile thereof shall have been used on a stock
certificate shall for any reason cease to be an officer of the Bank and such
certificate shall not then have been delivered by the Bank, the Board of
Directors may nevertheless adopt such certificate and it may then be issued and
delivered as though such person had not ceased to be an officer of the Bank.
5.2 Lost, Destroyed and Mutilated Certificates. Holders of the stock of the
Bank shall immediately notify the Bank of any loss, destruction or mutilation of
the certificate therefor, and the Board of Directors or the Executive Committee
may cause one or more new certificates for the same number of shares in the
aggregate to be issued to such stockholder upon the surrender of the mutilated
certificate or upon satisfactory proof of such loss or destruction, and the
deposit of a bond in such form and amount and with such surety as the Board of
Directors may require.
5.3 Transfer of Stock. The stock of the Bank shall be transferable or
assignable only on the Books of the Bank by the holders in person or by attorney
on surrender of the Certificate for such shares duly endorsed and, if sought to
be transferred by attorney, accompanied by a written power of attorney to have
the same transferred on the books of the Bank. The Bank shall recognize,
however, the exclusive right of the person registered on its books as the owner
of shares to receive dividends and to vote as such owner.
5.4 Closing of Transfer Books and Fixing Record Date. For the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors may provide, that the stock transfer
books shall be closed for a stated period but not to exceed in any case, seventy
days.
In lieu of closing the stock transfer books, the Board of Directors may fix in
advance a date as the record date for any such determination of stockholders,
such date in any case to be not more than seventy days prior to the date on
which the particular action, requiring such determination of stockholders, is to
be taken. If the stock transfer books are not closed and no record date is fixed
for the determination of stockholders entitled to notice or to vote at a meeting
of stockholders, or stockholders entitled to receive payment of a dividend, the
date on which notices of the meeting are mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of stockholders.
When a determination of stockholders entitled to vote at any meeting of the
stockholders has been made as provided in this section such determination shall
apply to any adjournment thereof.
Article VI
Miscellaneous Provisions
6.1 Seal. The corporate seal of the Bank shall consist of a flat-face circular
die, on which there shall be engraved the Crestar logogram and the name of the
Bank. Any officer of the Bank designated in writing by the Chief Executive
Officer or Secretary shall have authority to affix and attest the seal. Failure
to use the corporate seal shall not affect the validity of any instrument.
6.2 Voting of Stock Held. Unless otherwise provided by resolution of the Board
of Directors or of the Executive Committee, the Chairman of the Board, the
President, or any Executive or Senior Vice President may from time to time
appoint an attorney or attorneys or agent or agents of this Bank, in the name
and on behalf of this Bank, to cast the vote which this Bank may be entitled to
cast as a stockholder or otherwise in any other corporation, any of whose stock
or securities may be held by this Bank, at meetings of the holders of the stock
or other securities of such other corporation, or to consent in writing to any
action by any such other corporation. Such officer shall instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent and may execute or cause to be executed on behalf of this Bank such
written proxies, consents, waivers or other instruments as may be necessary or
proper. In lieu of an appointment of an attorney or agent, the officer may
himself attend any meetings of the holders of stock of other securities of any
such other corporation and there vote or exercise any or all power of this Bank
as the holder of such stock or other securities of such other corporation.
6.3 Fiscal Year. The fiscal year of the Bank shall be the calendar year.
Article VII
Emergency Bylaws
7.1. The Emergency Bylaws provided in this Article VII shall be operative
during any emergency resulting from an attack of the United States or any
nuclear or atomic disaster, notwithstanding any different provision in the
preceding articles of the Bylaws or in the Articles of Incorporation of the Bank
or in the Virginia Stock Corporation Act (other than those provisions relating
to emergency Bylaws). To the extent not inconsistent with these Emergency
Bylaws, the Bylaws provided in the preceding articles shall remain in effect
during such emergency and upon the termination of such emergency the Emergency
Bylaws shall cease to be operative unless and until another such emergency shall
occur.
During any such emergency:
(a) Any meeting of the Board of Directors may be called by any officer of the
Bank or by any Director. The notice thereof shall specify the time and place of
the meeting. To the extent feasible, notice shall be given only to such of the
Directors as it may be feasible to reach at the time, by such means as may be
feasible at the time, including publication or radio, and at a time less than
twenty-four hours before the meeting if deemed necessary by the person giving
notice. Notice shall be similarly given, to the extent feasible, to the other
persons referred to in (b) below,
(b) At any meeting of the Board of Directors, a quorum shall consist of a
majority of the number of Directors fixed at the time in accordance with Article
II of the Bylaws. If the Directors present at any particular meeting shall be
fewer than the number required for such quorum, other persons present may be
included in the number necessary to make up such quorum, and shall be deemed
Directors for such particular meeting as determined by the following provisions
and in the following order of priority:
(i) Officers designated in Section 4.1(a) of the Bylaws, Executive Vice
Presidents not already serving as Directors, in the order of their seniority of
first election to such offices, or if two or more shall have been first elected
to such offices on the same day, in the order of their seniority in age;
(ii) All other officers of the Bank in the order of their seniority of first
election to such offices, or if two or more shall have been first elected to
such officers on the same day, in the order of their seniority in age; and
(iii) Any other persons that are designated on a list that shall have been
approved by the Board of Directors before the emergency, such persons to be
taken in such order of priority and subject to such conditions as may be
provided in the resolution approving the list.
(c) The Board of Directors, during as well as before any such emergency, may
provide, and from time to time modify, lines of succession in the event that
during such an emergency any or all officers or agents of the Bank shall for any
reason be rendered incapable of discharging their duties.
(d) The Board of Directors, during as well as before any such emergency, may,
effective in the emergency, change the principal office, or designate several
alternative offices, or authorize the officers to do so.
No officer, Director or employee acting in accordance with these Emergency
Bylaws shall be liable except for willful misconduct.
These Emergency Bylaws shall be subject to repeal or change by further action
of the Board of Directors or by action of the stockholders, except that no such
repeal or change shall modify the provisions of the next preceding paragraph
with regard to action or inaction prior to the time of such repeal or change.
Any such amendment of these Emergency Bylaws may make any further or different
provision that may be practical and necessary for the circumstances of the
emergency.
Article VIII
Indemnification Of Directors And Officers
8.1 A. To the full extent that the Virginia Stock Corporation Act, as it
exists on the date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of directors or officers, a Director or officer of
the Bank shall not be liable to the Bank or its stockholders for monetary
damages.
B. To the full extent permitted and in the manner prescribed by the Virginia
Stock Bank Act and any other applicable law, the Bank shall indemnify a Director
or officer of the Bank who is or was a party to any proceeding by reason of the
fact that he is or was such a Director or officer or is or was serving at the
request of the Bank as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. The Board of Directors is hereby empowered, by majority vote of a
quorum of disinterested Directors, to contract in advance to indemnify any
Director or officer.
C. The Board of Directors is hereby empowered, by a majority vote of a quorum
of disinterested Directors, to cause the Bank to indemnify or contract in
advance to indemnify any person not specified in Section B of this Article who
was or is a party to any proceeding, by reason of the fact that he is or was an
employee or agent of the Bank, or is or was serving at the request of the Bank
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust employee benefit plan or other enterprise, to the same
extent as if such person were specified as one to whom indemnification is
granted in Section B.
D. The Bank may purchase and maintain insurance to indemnify it against the
whole or any portion of the liability assumed by it in accordance with this
Article and may also procure insurance, in such amounts as the Board of
Directors may determine, on behalf of any person who is or was a Director,
officer, employee or agent of the Bank, or is or was serving at the request of
the Bank as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability asserted against or incurred by such person in any such
capacity or arising from his status as such, whether or not the Bank would have
power to indemnify him against such liability under the provisions of this
Article.
E. In the event there has been a change in the composition of a majority of
the Board of Directors after the date of the alleged act or omission with
respect to which indemnification is claimed, any determination as to
indemnification and advancement of expenses with respect to any claim for
indemnification made pursuant to Section A of this Article VIII shall be made by
special legal counsel agreed upon by the Board of Directors and the proposed
indemnitee. If the Board of Directors and the proposed indemnitee are unable to
agree upon such special legal counsel, the Board of Directors and the proposed
indemnitee each shall select a nominee, and the nominees shall select such
special legal counsel.
F. The provisions of this Article VIII shall be applicable to all actions,
claims, suits or proceedings commenced after the adoption hereof, whether
arising from any action taken or failure to act before or after such adoption.
No amendment, modification or repeal of this Article shall diminish the rights
provided hereby or diminish the right to indemnification with respect to any
claim, issue or matter in any then pending or subsequent proceeding that is
based in any material respect on any alleged action or failure to act prior to
such amendment, modification or repeal.
G. Reference herein to Directors, officers, employees or agents shall include
Area Board Directors, former Directors, officers, employees and agents and their
respective heirs, executors and administrators.
Article IX
Amendments
9.1 These Bylaws may be amended, altered, or repealed at any meeting of the
Board of Directors by affirmative vote of a majority of the number of Directors
fixed by resolution of the Board pursuant to these Bylaws. The stockholders
entitled to vote in an election of Directors, however, shall have the power to
rescind, alter, amend or repeal any Bylaws and to enact Bylaws which, if
expressly so provided, may not be amended, altered or repealed by the Board of
Directors.
Administrative Regulation I
Sale, Purchase And Pledge Or Deposit Of Securities Owned By The Bank
1.1 Sale, Purchase and Pledge or Deposit of Securities. The President, the
Executive Vice president - Investment Bank, the Managing Director -
Asset/Liability Management Division, the Managing Director - Funds Management
Division, or such other officers of the Asset/Liability Management Division or
the Funds Management Division as any of the foregoing may designate in writing
(which designation shall be filed with the Secretary) are authorized and
empowered in its behalf at any time and from time to time:
(a) To sell, assign, loan, sell under agreement to repurchase, transfer, and
deliver any and all securities of any description now or at any time hereafter
belonging to the Bank in its own right, or which the Bank is or shall be
authorized and empowered to sell, assign, or transfer as attorney for the owners
or holders thereof.
(b) To make any pledge or deposit of any of the bonds, notes, obligations or
any other securities belonging to the Bank (including any receipts issued by any
other banking institution evidencing the deposit by the Bank of any of its
securities with any other banking institution as custodian) including without
limitation the pledge or deposit with the Treasurer of the United States, or any
other public official or public authority, national, state or local, for the
purpose of securing (i) borrowings from the Federal Reserve Bank, (ii) deposits
for which security is or may be required or permitted by law at any time to be
given, (iii) sureties on surety bonds furnished to secure such deposits, or (iv)
deposits made, whether time or demand, by the Bank as sole or joint fiduciary of
any character. Any officer authorized hereunder to make such pledges or deposits
shall have power to make any endorsement, transfer or assignment of any such
securities, to make substitutions and withdrawals thereof, and to designate the
person or persons to whom on behalf of the Bank any such securities so withdrawn
may be delivered.
(c) To purchase, borrow, or purchase under agreement to resell for the account
of the Bank in its own right such bonds, stocks or other securities as may be
permitted by law.
(d) To do any act and to execute and acknowledge any document necessary to the
exercise of the powers hereby granted and to appoint attorneys-in-fact to do
such acts and execute such documents.
Administrative Regulation II
Exercise Of Fiduciary Powers
2.1 Certification, Authentication, etc., of Securities and Documents. Any
officer or employee of the Trust Group who may be designated from time to time
in writing (which designation shall be filed with the Secretary) by either the
President, the Executive Vice President for Trusts, any Senior Vice President,
or Vice President in the Trust Group, to act as Special Corporate Assistant
shall have the authority to authenticate or certify, on behalf of the Bank, any
bonds, certificates, or other documents necessary or proper for the Bank to
certify in its capacity as Trustee under any mortgage, deed of trust or other
instrument, and to sign or countersign in the name of the Bank (a) as Transfer
Agent or Registrar the certificates for the capital stock or the bonds or other
securities of any corporation for which the Bank may be at any time Transfer
Agent or Co-Transfer Agent, or Registrar or Co-Registrar, respectively, and (b)
as Depositary the receipts for any securities deposited with the Bank under any
agreement under which it may at any time be Depositary; and any of said officers
or employees authenticating, certifying, signing or countersigning any of such
bonds, certificates, stocks, securities, receipts and documents on behalf of the
Bank may do so under the title or style of "Authorized Officer" or "Authorized
Signature".
2.2 Qualification as Fiduciary. In all cases where the Bank shall be appointed
to act as Trustee, Executor, Administrator (with or without will annexed),
Curator, Guardian, Committee, Receiver, Special Commissioner, or in any other
lawful fiduciary capacity, any one of the following officers, namely: The
President, the Executive Vice President for Trusts, or any officer of the Trust
Group is authorized to take on behalf of the Bank any oath, and to execute any
bond required to be taken or executed, upon the Bank's qualifying to act in such
fiduciary capacity.
2.3 Acceptance of Trusts. The President, the Executive Vice President for
Trusts, or any officer in the Trust Group may accept on behalf of the Bank any
trust and sign his name to any instrument evidencing such acceptance and
acknowledge and deliver the same.
2.4 Purchase and Sales of Securities. Any of the following officers of the
Bank, namely: The President, the Executive Vice President for Trusts, or any
officer in the Trust Group, is authorized in the exercise of powers conferred
upon the Bank as fiduciary or agent, to buy, sell, assign, transfer and deliver
any bonds, stocks and other securities of every description, standing in the
name of this Bank as either sole or joint fiduciary, or in the name of any ward
for whom it is either sole guardian or co-guardian, or of any decedent for whom
it is either the sole personal representative or one of the personal
representatives, or which may be held by it in any fiduciary or representative
capacity whatsoever, either solely or in conjunction with some other person or
persons, whether registered or otherwise (and to exchange registered for bearer
or bearer for registered securities), and any such officer so authorized shall
have authority to appoint one or more attorneys for that purpose and to execute
and deliver on behalf of the Bank all necessary and proper instruments for the
purpose of effectuating the powers hereby conferred.
2.5 Deposit of Securities Under Plans of Reorganizations, etc. Any of the
following officers of the Bank, namely: The President, the Executive Vice
President for Trusts, or any officer in the Trust Group may deposit or authorize
the deposit of the securities referred to in paragraph 2.4 with any Committee or
Depositary under any plan of reorganization, consolidation, merger or
readjustment of any individual, corporation, firm or association, and may
approve any such plan, and may execute in the name of the Bank in its
appropriate fiduciary or representative capacity and deliver on its behalf any
protective committee agreement for any of the above mentioned purposes.
2.6 Sales and Leases of Real Estate and Tangible Personal Property:
Foreclosure and extension of Mortgages. Any of the following officers of the
Bank, namely: The President, the Executive Vice President for Trusts, or any
officer of the Trust Group, in the exercise of powers conferred upon the Bank as
fiduciary or agent are authorized (i) to sell, exchange or lease any real estate
or tangible personal property or any interest therein, which the Bank may hold
in any fiduciary or representative capacity, (ii) to grant options for purchase
thereof, (iii) to cause the foreclosure of any deed of trust or mortgage held by
the Bank in any such fiduciary or representative capacity, or (iv) to consent to
the extension of the maturity of any such deed of trust or mortgage.
2.7 All Acts Done Under the Foregoing Paragraphs numbered 2.2, 2.3, 2.4, 2.5
and 2.6 shall be reported to the Trust Administrative Committees, as may be
appropriate, provided that no action then taken by the Committees shall affect
the rights of third parties.
2.8 Voting Stock and Other Securities. The President, the Executive Vice
President for Trusts, or any officer of the Trust Group shall have the power and
authority to attend any meeting of the stockholders or security holders of any
corporation in which this Bank, as fiduciary or agent, is a stockholder or
security holder, and vote on behalf of this Bank any such stock or securities;
and any of them is hereby authorized and empowered to designate, in writing, any
person or persons as proxy, with power of substitution, to attend and vote at
such meeting such stock or securities on behalf of this Bank; provided, however,
that such proxy shall be empowered by such writing to vote only on the matters
and questions in the manner and to the effect therein specified.
Administrative Regulation III
Borrowing Money, Rediscounts Of Bills And Notes, Buying Or Selling Funds
3.1 Borrowed Money, Security Therefor and Rediscounts. Transactions with the
Federal Reserve Bank, or with any other bank in the nature of borrowings,
pledges or rediscounts by the Bank shall be by the President, the Executive Vice
President - Investment Bank, the Managing Director - Asset/Liability Management
Division, the Managing Director - Funds Management Division, or such other
officers of the Asset/Liability Management Division or the Funds Management
Division as any of the foregoing may designate in writing (which designation
shall be filed with the Secretary), and any of such officers is severally
authorized in the Bank's behalf at any time and from time to time:
(a) To borrow money for any temporary purpose and on such terms and for such
periods as he may deem wise;
(b) To pledge as security for the sums so borrowed, sell under repurchase
agreement, any and all securities, bills or notes, of every description
belonging to the Bank in its own right, including receipts of any other banking
institution evidencing deposit with it of any securities, bills or notes,
belonging to the Bank; or
(c) To rediscount any bills or notes belonging to the Bank in its own right.
3.2 Purchase and Sale of Surplus Funds. The President, the Executive Vice
President - Investment Bank, the Managing Director - Asset/Liability Management
Division, the Managing Director - Funds Management Division, or such other
officers of the Asset/Liability Management Division or the Funds Management
Division as any of them may designate in writing (which designation shall be
filed with the Secretary), are authorized to purchase or sell surplus funds.
Administrative Regulation IV
Release of Encumbrances
4.1 Release of Encumbrances. Any release, termination statement, or
satisfaction of judgment required by the Bank shall be executed by any officer
of the Bank or by an attorney-in-fact appointed by an officer of the Bank for
the purpose. Whenever the Bank may be lawfully required to consent to the
release of the lien of any deed of trust, its consent may be evidenced by the
execution of such deed of release or any other document on behalf of the Bank by
any officer of the Bank.
Administrative Regulation V
Checks, Drafts, Orders, Etc.
5.1 Bank - Except Trust. All checks, drafts or orders of the Bank for the
payment of money, whether directed to itself or to others (except those drawn on
trust funds), shall be executed or signed on behalf of the Bank by any officer
or, if authorized to sign by any officer (other than a member of the Trust
Group) who is a Division Head, Senior Vice President or above, by any employee
of the Bank, with a copy of such authorization filed with the Corporate
Controller.
5.2 Trust Group. All checks, drafts or orders of the Trust Group for the
payment of money, whether directed to itself or others, shall be executed or
signed on behalf of the Bank by any officer or employee of the Trust Group who
may be authorized so to sign by any officer of the Trust Group who is Senior
Vice President or above, with a copy of such authorization filed with the
Corporate Controller.
Administrative Regulation VI
Signature Guarantee, Confirmations, Etc.
6.1 Signature Guarantee. Any officer of the Bank, or employee of the Bank who
may be designated in writing (which designation shall be filed with the
Secretary) by the Chairman of the Board, the President, any Executive Vice
President, any Senior Vice President or Division Head, shall have the authority
to guarantee, on behalf of the Bank, the signature of a bank customer or other
person on any stock certificate, bond, note, or other security, provided that
such officer or employee shall know personally:
1. The person signing.
2. That the signature is genuine.
3. That the signer is an appropriate person to endorse or sign.
4. That the signer has legal capacity to sign.
Any such officer or employee guaranteeing any such signature may do so under
the style of "Authorized Officer" or "Authorized Signature".
6.2 Confirmations. The General Auditor or any Vice President Audit is
authorized to certify in the name of, or on behalf of, the Bank in its own right
or in a fiduciary or representative capacity, as to the accuracy and
completeness of any account, schedule of assets, instrument or paper requiring
such certification.
Administrative Regulation VII
Responsibilities of Area Boards
7.1 Responsibilities of Area Boards. The Area Boards, as provided by Section
3.7 of the Bylaws, shall, jointly with senior management, assist in the
direction of one or more of the Bank's offices by: 1) selecting and evaluating
the performance of local executive officers, 2) ensuring the adoption of
challenging goals and marketing policies, 3) ensuring a reasonable return on
allocated capital, 4) ensuring a level of profitability that provides for
balanced growth, responsiveness to the credit needs of the community, and high
standards of integrity for all personnel, 5) ensuring an appropriate commitment
of the Bank to a significant role in the local community, 6) ensuring
conformance to applicable statutes & regulations, 7) ensuring a reporting system
that adequately monitors these objectives, 8) promoting the Bank through the
acquisition of business and by personal example and, 9) providing an outside
perspective as a constructive critic and loyal friend.
Administrative Regulation VIII
Deposit And Security Accounts
8.1 Deposit Accounts. The President, the Executive Vice President - Investment
Bank, the Executive Vice President, Controller and Treasurer, the Managing
Director - Asset/Liability Management Division, and the Managing Director -
Funds Management Division are individually authorized and empowered to open and
maintain in the name of the Bank one or more deposit accounts at other financial
institutions. The aforementioned officers shall designate the personnel
authorized to sign for and transact business in such accounts and may agree to
any terms governing such accounts. Any resolutions required of this Corporation
in connection with such accounts may be certified by the Secretary as if
specifically adopted by the Board of Directors.
8.2 Securities Accounts. The President, the Executive Vice President -
Investment Bank, the Managing Director - Asset/Liability Management Division,
and the Managing Director - Funds Management Division are individually
authorized and empowered to open and maintain in the name of the Bank one or
more securities accounts for the purpose of purchasing, selling, reselling,
borrowing, lending, and otherwise dealing in money market instruments and
securities of any and every kind, including agreements or contracts for their
repurchase or future delivery, with banks, brokers, dealers, securities firms,
or other organizations, and to issue written, telephonic, telegraphic, or verbal
orders or instructions for transactions to be carried out in such accounts. The
aforementioned officers shall designate the personnel authorized to sign for and
transact business in such accounts and may agree to any terms governing such
accounts. Any resolutions required of this Bank in connection with such accounts
may be certified by the Secretary as if specifically adopted by the Board of
Directors.
Exhibit 6
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939 in connection with the proposed issue of Subordinated Debt of United
Dominion Realty Trust, we hereby consent that reports of examinations by
federal, state, territorial or district authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
CRESTAR BANK
By: Lee B. Bedell
Name: Lee B. Bedell
Title: Vice President
Date: August 18, 1994
Exhibit 7
[LETTERHEAD OF BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM]
- ----------------------------------------------------------------------
(LOGO OF BOARD OF Please refer to page i, 1
GOVERNORS OF THE Table of Contents, for
FEDERAL RESERVE the required disclosure
SYSTEM APPEARS HERE) of estimated burden.
- -------------------------------------------------------------------------
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices--FFIEC 031
Report at the close of business June 30, 1994
(940630)
- -----------
(RCRI 9999)
This report is required by law: 12 U.S.C. (S)324 (State member banks);
12 U.S.C.
(S)1817 (State nonmember banks); and 12 U.S.C. (S)161 (National Banks).
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
- ---------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National Banks.
I, Richard G. Tilghman, Chairman
and Chief Executive Officer
---------------------------------------------------
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 G. Tilghman, Chairman
- ----------------------------------------------
Signature of Officer Authorized to Sign Report
- ----------------------------------------------
Date of Signature
The reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in some
cases differ from generally accepted accounting principals.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
/s/ Eugene P. Trani
- ----------------------------------------------
Director (Trustee)
/s/ Patrick D. Giblin
- ----------------------------------------------
Director (Trustee)
/s/ Gordon H. Rainey
- ----------------------------------------------
Director (Trustee)
- ----------------------------------------------------------------------------
For Banks Submitting Hard Copy Report Forms:
State Member Banks: Return the original and one copy to the appropriate Federal
Reserve District Bank.
State Nonmember Banks: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2139 Espey Court, Crofton, MD 21114.
National Banks: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2139
Espey Court, Crofton, MD 21114.
- ------------------------------------------------------------------------
FDIC Certificate Number 00832
-----
CALL NO. June 30, 1994
CERT: 00832 STBK 51-2430
Crestar Bank
P.O. Box 26665
Richmond, VA 23261
E512430000 005512430000
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
31
<PAGE>
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices
- ----------------------------------------------------------------------------
Table of Contents
<TABLE>
<S> <C>
Signature Page Cover
Report of Income
Schedule RI--Income Statement........................................RI-1,2,3
Schedule RI-A--Changes in Equity Capital.............................RI-3
Schedule RI-B--Charge-offs and Recoveries and Changes in
Allowance for Loan and Lease Losses..............................RI-4,5
Schedule RI-C--Applicable Income Taxes by Taxing Authority...........RI-5
Schedule RI-D--Income from International Operations..................RI-6
Schedule RI-E--Explanations........................................RI-7,8
Report of Condition
Schedule RC--Balance Sheet.........................................RC-1,2
Schedule RC-A--Cash and Balances Due From Depository
Institutions.......................................................RC-3
Schedule RC-B--Securities..........................................RC-4,5
Schedule RC-C--Loans and Lease Financing
Receivables:
Part I. Loans and Leases.......................................RC-6,7
Part II. Loans to Small Businesses and Small Farms
(included in the forms for June 30 only)..................RC-7a,7b
Schedule RC-D--Trading Assets and Liabilities to be
completed only by selected banks)...................................RC-8
Schedule RC-E--Deposit Liabilities................................RC-9,10
Schedule RC-F--Other Assets.........................................RC-11
Schedule RC-G--Other Liabilities....................................RC-11
Schedule RC-H--Selected Balance Sheet Items for Domestic
Offices...........................................................RC-12
Schedule RC-I--Selected Assets and Liabilities of IBFs..............RC-13
Schedule RC-K--Quarterly Averages...................................RC-13
Schedule RC-L--Off-Balance Sheet Items...........................RC-14,15
Schedule RC-M--Memoranda.........................................RC-16,17
Schedule RC-N--Past Due and Nonaccrual Loans,
Leases, and Other Assets.......................................RC-18,19
Schedule RC-O--Other Data for Deposit Insurance
Assessments....................................................RC-20,21
Schedule RC-R--Risk-Based Capital................................RC-22,23
Optional Narrative Statement Concerning the
Amounts Reported in the Reports of Condition
and Income........................................................RC-24
Special Report (to be completed by all banks)
Schedule RC-J--Repricing Opportunities (sent only to
and to be completed only by savings banks)
</TABLE>
Disclosure of Estimated Burden
The estimated average burden associated with this information collection is
30.7
hours per respondent and is estimated to vary from 15 to 200 hours per
response, depending on individual circumstances. Burden estimates include the
time for reviewing instructions, gathering and maintaining data in the required
form, and completing the information collection, but exclude the time for
compiling and maintaining business records in the normal course of a
respondent's activities. Comments concerning the accuracy of this burden
estimate and suggestions for reducing this burden should be directed to the
Office of Information and Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 20503, and to one of the following:
Secretary
Board of Governors of the Federal Reserve System
Washington, D.C. 20551
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
For information or assistance, national and state nonmember banks should
contact
the FDIC's Call Reports Analysis Unit, 550 17th Street, NW, Washington, D.C.
20429, toll free on (800) 688-FDIC (3342), Monday through Friday between 8:00
a.m. and 5:00 p.m., Eastern time. State member banks should contact their
Federal Reserve District Bank.
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665 Call Date: 06/30/94
City, State Zip: Richmond, VA 23261-6665 ST-BK: 51-2430 FFIEC 031
Page RI-1
Cert: 00832
Consolidated Report of Income
for the period January 1, 1994 - June 30, 1994
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
Schedule RI--Income Statement
<TABLE>
<CAPTION> --------
I480
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. Interest income: //////////////////
a. Interest and fee income on loans: //////////////////
(1) In domestic offices: //////////////////
(a) Loans secured by real estate.................................................. 4011 134,299 1.a.(1)(a)
(b) Loans to depository institutions.............................................. 4019 117 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to //////////////////
farmers....................................................................... 4024 259 1.a.(1)(c)
(d) Commercial and industrial loans............................................... 4012 55,278 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 73,252 1.a.(1)(f)(1)
(2) Other..................................................................... 4055 48,115 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions........................ 4056 0 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and //////////////////
political subdivisions in the U.S.: //////////////////
(1) Taxable obligations....................................................... 4503 162 1.a.(1)(h)(1)
(2) Tax-exempt obligations.................................................... 4504 5,257 1.a.(1)(h)(2)
(i) All other loans in domestic offices........................................... 4058 8,017 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 213 1.b.(1)
(2) Tax-exempt leases................................................................. 4307 0 1.b.(2)
c. Interest income on balances due from depository institutions:(1) //////////////////
(1) In domestic offices............................................................... 4105 4 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs..................... 4106 13 1.c.(2)
d. Interest and dividend income on securities: //////////////////
(1) U.S. Treasury securities and U.S. Government agency and corporation //////////////////
obligations....................................................................... 4027 58,828 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.: //////////////////
(a) Taxable securities............................................................ 4506 0 1.d.(2)(a)
(b) Tax-exempt securities......................................................... 4507 2,202 1.d.(2)(b)
(3) Other domestic debt securities.................................................... 3657 7,933 1.d.(3)
(4) Foreign debt securities........................................................... 3658 50 1.d.(4)
(5) Equity securities (including investments in mutual funds)......................... 3659 476 1.d.(5)
e. Interest income from assets held in trading accounts.................................. 4069 9 1.e.
--------------------
</TABLE>
- --------------
(1) Includes interest income on time certificates of deposit not held in trading
accounts.
3
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665 Call Date: 06/30/94
City, State Zip: Richmond, VA 23261-6665 ST-BK: 51-2430 FFIEC 031
Page RI-1
Cert: 00832
Schedule RI--Continued
<TABLE>
<CAPTION>
------------------
Dollar Amounts in Thousands Year-to-date
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Interest income (continued) RIAD Bil Mil Thou
f. Interest income on federal funds sold and securities purchased //////////////////////
under agreements to resell in domestic offices of the bank and of //////////////////////
its Edge and Agreement subsidiaries, and in IBFs........................ 4020 7,486 1.f.
g. Total interest income (sum of items 1.a through 1.f).................... 4107 401,920 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 15,346 2.a.(1)(a)
(b) Nontransaction accounts: //////////////////////
(1) Money market deposit accounts (MMDAs)....................... 4509 21,422 2.a.(1)(b)(1)
(2) Other savings deposits...................................... 4511 13,350 2.a.(1)(b)(2)
(3) Time certificates of deposit of $100,000 or more............ 4174 7,191 2.a.(1)(b)(3)
(4) All other time deposits..................................... 4512 52,956 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement //////////////////////
subsidiaries, and IBFs.............................................. 4172 190 2.a.(2)
b. Expense of federal funds purchased and securities sold under //////////////////////
agreements to repurchase in domestic offices of the bank and of //////////////////////
its Edge Agreement subsidiaries, and in IBFs............................ 4180 22,225 2.b.
c. Interest on demand notes issued to the U.S. Treasury and on other //////////////////////
borrowed money.......................................................... 4185 466 2.c.
d. Interest on mortgage indebtedness and obligations under capitalized //////////////////////
leases.................................................................. 4072 768 2.d.
e. Interest on subordinated notes and debentures........................... 4200 7,518 2.e.
f. Total interest expense (sum of items 2.a through 2.e)................... 4073 141,432 2.f.
---------------------
3. Net interest income (item 1.g minus 2.f)................................... ////////////////////// RIAD 4074 260,488 3.
---------------------
4. Provisions: //////////////////////
---------------------
a. Provision for loan and lease losses..................................... ////////////////////// RIAD 4230 17,783
4.a.
b. Provision for allocated transfer risk................................... ////////////////////// RIAD 4243 0
4.b.
---------------------
5. Noninterest income: //////////////////////
a. Income from fiduciary activities........................................ 4070 18,869 5.a.
b. Service charges on deposit accounts in domestic offices................. 4080 29,068 5.b.
c. Trading gains (losses) and fees from foreign exchange transactions...... 4075 519 5.c.
d. Other foreign transaction gains (losses)................................ 4076 0 5.d.
e. Gains (losses) and fees from assets held in trading accounts............ 4077 (687) 5.e.
f. Other noninterest income: //////////////////////
(1) Other fee income.................................................... 5407 67,683 5.f.(1)
(2) All other noninterest income*....................................... 5408 6,029 5.f.(2)
----------------------
g. Total noninterest income (sum of items 5.a through 5.f)................. ////////////////////// RIAD 4079 121,481
5.g.
6. a. Realized gains (losses) on held-to-maturity securities.................. ////////////////////// RIAD 3521 5 6.a.
b. Realized gains (losses) on available-for-sale securities................ ///////////////////// RIAD 3196 (1,742) 6.b.
----------------------
7. Noninterest expense: //////////////////////
a. Salaries and employee benefits.......................................... 4135 131,845 7.a.
b. Expenses of premises and fixed assets (net of rental income) //////////////////////
(excluding salaries and employee benefits and mortgage interest)........ 4217 27,883 7.b.
c. Other noninterest expense*.............................................. 4092 91,658 7.c.
----------------------
d. Total noninterest expense (sum of items 7.a through 7.c)................ ////////////////////// RIAD 4093 251,386
7.d.
----------------------
8. Income (loss) before income taxes and extraordinary items and other //////////////////////
----------------------
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d).....////////////////////// RIAD 4301 111,063 8.
9. Applicable income taxes (on item 8)........................................ ////////////////////// RIAD 4302 35,878 9.
----------------------
10. Income (loss) before extraordinary items and other adjustments //////////////////////
----------------------
(item 8 minus 9)........................................................... ////////////////////// RIAD 4300 75,185 10.
---------------------------------------------
</TABLE>
- --------------
*Describe on Schedule RI-E--Explanations.
4
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665 Call Date: 06/30/94
City, State Zip: Richmond, VA 23261-6665 ST-BK: 51-2430 FFIEC 031
Page RI-3
Cert: 00832
-----
Schedule RI--Continued
<TABLE>
<CAPTION>
--------------------
Year-to-date
--------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
11. Extraordinary items and other adjustments: /////////////////
a. Extraordinary items and other adjustments, gross of income taxes* . 4310 0 11.a.
b. Applicable income taxes (on item 11.a)* ........................... 4315 0 11.b.
c. Extraordinary items and other adjustments, net of income taxes ///////////////// --------------------------
(item 11.a minus 11.b) ............................................ ///////////////// RIAD 4320 0 11.c.
12. Net income (loss) (sum of items 10 and 11.c) ......................... ///////////////// RIAD 4340 75,185 12.
---------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Memoranda Year-to-date
---------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after ///////////////////
August 7, 1986, that is not deductible for federal income tax purposes ........................ 4513 528 M.1.
2. Fee income from the sale and servicing of mutual funds and annuities in domestic offices ///////////////////
(included in Schedule RI, item 5.g)............................................................. 8431 2,980 M.2.
3. Estimated foreign tax credit included in applicable income taxes, items 9 and 11.b above ....... 4309 0 M.3.
4. To be completed only by banks with $1 billion or more in total assets: ///////////////////
Taxable equivalent adjustment to "Income (loss) before income taxes and extraordinary ///////////////////
items and other adjustments" (item 8 above) ................................................... 1244 4,442 M.4.
5. Number of full-time equivalent employees on payroll at end of current period (round to //// Number
nearest whole number) ......................................................................... 4150 6,140 M.5.
---------------------
</TABLE>
Schedule RI-A--Changes in Equity Capital
<TABLE>
<CAPTION>
Indicate decreases and losses in parentheses.
----------
I483
---------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Total equity capital originally reported in the December 31, 1993, Reports of Condition ///////////////////
and Income ..................................................................................... 3215 793,329 1.
2. Equity capital adjustments from amended Reports of Income, net* ................................ 3216 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) ........................... 3217 793,329 3.
4. Net income (loss) (must equal Schedule RI, item 12) ............................................ 4340 75,185 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net ............................. 4346 816 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 27,079 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 (16,991) 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 26,586 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal Schedule RC, ///////////////////
item 28) ....................................................................................... 3210 851,846 14.
--------------------
</TABLE>
- -----------
*Describe on Schedule RI-E--Explanations.
5
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665 Call Date: 06/30/94
City, State Zip: Richmond, VA 23261-6665 ST-BK: 51-2430 FFIEC 031
Page RI-4
Cert: 00832
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>
<CAPTION>
--------
I486
--------------------------------------------
(Column A) (Column B)
Charge-offs Recoveries
--------------------------------------------
calendar year-to-date
--------------------------------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate: //////////////////// /////////////////////
a. To U.S. addressees (domicile)........................................ 4651 10,001 4661 4,656 1.a.
b. To non-U.S. addresees (domicile)..................................... 4652 0 4662 0 1.b.
2. Loans to depository institutions and acceptances of other banks: //////////////////// /////////////////////
a. To U.S. banks and other U.S. depository institutions................. 4653 0 4663 0 2.a.
b. To foreign banks..................................................... 4654 0 4664 0 2.b.
3. Loans to finance agricultural production and other loans to farmers..... 4655 6 4665 0 3.
4. Commercial and industrial loans: //////////////////// /////////////////////
a. To U.S. addressees (domicile)........................................ 4645 2,574 4617 1,701 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 12,885 4666 3,354 5.a.
b. Other (includes single payment, installment, and all student loans).. 4657 4,175 4667 2,412 5.b.
6. Loans to foreign governments and official institutions.................. 4643 0 4627 0 6.
7. All other loans......................................................... 4644 758 4628 1,349 7.
8. Lease financing receivables: //////////////////// /////////////////////
a. Of U.S. addressees (domicile)........................................ 4658 0 4668 6 8.a.
b. Of non-U.S. addressees (domicile)......................................4659 0 4669 0 8.b.
9. Total (sum of items 1 through 8)........................................ 4635 30,393 4605 13,478 9.
--------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------
Cumulative Cumulative
Charge-offs Recoveries
Jan. 1, 1986 Jan. 1, 1986
Memoranda through through
Dollar Amounts in Thousands Dec. 31, 1989 Report Date
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
To be completed by national banks only. RIAD Bil Mil Thou RIAD Bil Mil Thou
--------------------- ----------------------
1. Charge-offs and recoveries of Special-Category Loans, as defined for //////////////////// //////////////////////
this Call Report by the Comptroller of the Currency.................... //////////////////// 4784 N/A M.1.
--------------------- ----------------------
---------------------------------------------
(Column A) (Column B)
Charge-offs Recoveries
--------------------- ----------------------
calendar year-to-date
Memorandum items 2 and 3 are to be completed by all banks. ---------------------------------------------
2. Loans to finance commercial real estate, construction, and land RIAD Bil Mil Thou RIAD Bil Mil Thou
development activities (not secured by real estate) included in --------------------- ----------------------
Schedule RI-B, part I, items 4 and 7, above............................. 5409 0 5410 0 M.2.
3. Loans secured by real estate in domestic offices (included in Schedule
RI-B, part 1, item 1, above): //////////////////// /////////////////////
a. Construction and land development.................................... 3582 275 3583 1,337 M.3.a.
b. Secured by farmland.................................................. 3584 0 3585 0 M.3.b.
c. Secured by 1-4 family residential properties: //////////////////// /////////////////////
(1) Revolving, open-end loans secured by 1-4 family residential //////////////////// /////////////////////
properties and extended under lines of credit.................... 5411 0 5412 0 M.3.c.(1)
(2) All other loans secured by 1-4 family residential properties..... 5413 338 5414 68 M.3.c.(2)
d. Secured by multifamily (5 or more) residential properties............ 3588 38 3589 0 M.3.d.
e. Secured by nonfarm nonresidential properties......................... 3590 9,350 3591 3,251 M.3.e.
---------------------------------------------
</TABLE>
6
<PAGE>
Schedule RI-B--Continued
Part II. Changes in Allowance for Loan and Lease Losses and in Allocated
Transfer Risk Reserve
<TABLE>
<CAPTION>
-------------------------------------
(Column A) (Column B)
Allowance for Allocated
Loan and Lease Transfer Risk
Losses Reserve
-------------------------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Balance originally reported in the December 31, 1993, Reports of ///////////////// /////////////////
Condition and Income........................................................ 3124 188,317 3131 0 1.
2. Recoveries (column A must equal part I, item 9, column B above)............. 4605 13,478 3132 0 2.
3. LESS: Charge-offs (column A must equal part I, item 9, column A above)...... 4635 30,393 3133 0 3.
4. Provision (column A must equal Schedule RI, item 4.a; column B must equal ///////////////// /////////////////
Schedule RI, item 4.b)...................................................... 4230 17,783 4243 0 4.
5. Adjustments* (see instructions for this schedule)........................... 4815 11,280 3134 0 5.
6. Balance end of current period (sum of items 1 through 5) (column A must equal ///////////////// /////////////////
Schedule RC, item 4.b; column B must equal Schedule RC, item 4.c)............ 3123 200,465 3128 0 6.
-------------------------------------
</TABLE>
__________
*Describe on Schedule RI-E--Explanations.
Schedule RI-C--Applicable Income Taxes by Taxing Authority
Schedule RI-C is to be reported with the December Report of Income.
<TABLE>
<CAPTION>
----
I489
---------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Federal..................................................................... 4780 N/A 1.
2. State and local............................................................. 4790 N/A 2.
3. Foreign..................................................................... 4795 N/A 3.
4. Total (sum of items 1 through 3) (must equal sum of Schedule RI, items 9 and /////////////////////
11.b)....................................................................... 4770 N/A 4.
5. Deferred portion of item 4................................ RIAD 4772 N/A ///////////////////// 5.
---------------------
</TABLE>
7
<PAGE>
Legal Title of Bank: Crestar Bank
Call Date: 06/30/94
Address: P.O. Box 26665 ST-BK: 51-2430 FFIEC 031
City, State Zip: Richmond, VA 23261-6665 Page RI-6
Cert: 00832
Schedule RI-D--Income from International Operations
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs
where international operations account for more than 10 percent of total
revenues, total assets, or net income.
Part I. Estimated Income from International Operations
<TABLE>
<CAPTION>
--------
I492
------------
Year-to-date
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and Agreement //////////////////
subsidiaries, and IBFs: //////////////////
a. Interest income booked................................................ 4837 N/A 1.a.
b. Interest expense booked............................................... 4838 N/A 1.b.
c. Net interest income booked at foreign offices, Edge and Agreement //////////////////
subsidiaries, and IBFs (item 1.a minus 1.b)............................ 4839 N/A 1.c.
2. Adjustments for booking location of international operations: //////////////////
a. Net interest income attributable to international operations booked at //////////////////
domestic offices........................................................ 4840 N/A 2.a.
b. Net interest income attributable to domestic business booked at foreign //////////////////
offices................................................................. 4841 N/A 2.b.
c. Net booking location adjustment (item 2.a minus 2.b).................... 4842 N/A 2.c.
3. Noninterest income and expense attributable to international operations: //////////////////
a. Noninterest income attributable to international operations............. 4097 N/A 3.a.
b. Provision for loan and lease losses attributable to international //////////////////
operations.............................................................. 4235 N/A 3.b.
c. Other noninterest expense attributable to international operations...... 4239 N/A 3.c.
d. Net noninterest income (expense) attributable to international operations //////////////////
(item 3.a minus 3.b and 3.c)............................................. 4843 N/A 3.d.
4. Estimated pretax income attributable to international operations before //////////////////
capital allocation adjustment (sum of items 1.c, 2.c, and 3.d).............. 4844 N/A 4.
5. Adjustment to pretax income for internal allocations to international //////////////////
operations to reflect the effects of equity capital on overall bank funding //////////////////
costs....................................................................... 4845 N/A 5.
6. Estimated pretax income attributable to international operations after //////////////////
capital allocation adjustment (sum of items 4 and 5)........................ 4846 N/A 6.
7. Income taxes attributable to income from international operations as //////////////////
estimated in item 6......................................................... 4797 N/A 7.
8. Estimated net income attributable to international operations (item 6 minus //////////////////
7).......................................................................... 4341 N/A 8.
-------------------
</TABLE>
<TABLE>
<CAPTION>
Memoranda
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Intracompany interest income included in item 1.a above..................... 4847 N/A M.1.
2. Intracompany interest expense included in item 1.b above.................... 4848 N/A M.2.
------------------
</TABLE>
Part II. Supplementary Details on Income from International Operations Required
by the Departments of Commerce and Treasury for Purposes of the U.S.
International Accounts and the U.S. National Income and Product Accounts
<TABLE>
<CAPTION>
--------------
Year-to-date
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income booked at IBFs............................................... 4849 N/A 1.
2. Interest expense booked at IBFs.............................................. 4850 N/A 2.
3. Noninterest income attributable to international operations booked at /////////////////
domestic offices (excluding IBFs): /////////////////
a. Gains (losses) and extraordinary items.................................... 5491 N/A 3.a.
b. Fees and other noninterest income......................................... 5492 N/A 3.b.
4. Provision for loan and lease losses attributable to international operations /////////////////
booked at domestic offices (excluding IBFs).................................. 4852 N/A 4.
5. Other noninterest expense attributable to international operations booked at /////////////////
domestic offices (excluding IBFs)............................................ 4853 N/A 5.
------------------
</TABLE>
8
<PAGE>
Legal Title of Bank: Crestar Bank
Call Date: 06/30/94
Address: P.O. Box 26665 ST-BK: 51-2430 FFIEC 031
City, State Zip: Richmond, VA 23261-6665 Page RI-7
Cert: 00832
Schedule RI-E-Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedules RI-A and RI-B, all extraordinary items and
other adjustments in Schedule RI, and all significant items of other noninterest
income and other noninterest expense in Schedule RI. (See instructions for
details.)
<TABLE>
<CAPTION>
------
I495
------------
Year-to-date
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- --------------------------------------------------------------------
<S> <C> <C> <C>
1. All other noninterest income (from Schedule /////////////////
RI, item 5.f.(2)) /////////////////
Report amounts that exceed 10% of Schedule /////////////////
RI, item 5.f.(2): /////////////////
a. Net gains on other real estate owned.........5415 0 1.a.
b. Net gains on sales of loans..................5416 0 1.b.
c. Net gains on sales of premises and
fixed assets.................................5417 0 1.c.
Itemize and describe the three largest other /////////////////
amounts that exceed 10% of Schedule RI, /////////////////
item 5.f.(2): /////////////////
d. TEXT 4461 Personalized Check Sales 4461 3,189 1.d.
--------------------------------------------
e. TEXT 4462 Foreclosed Property 4462 1,735 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 4,170 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 Communication Expenses 4464 11,419 2.e.
--------------------------------------------
f. TEXT 4467 /////////////////
4467 2.f.
--------------------------------------------
g. TEXT 4468 4468 2.g.
--------------------------------------------
3. Extraordinary items and other adjustments (from /////////////////
Schedule RI, item 11.a) and applicable income /////////////////
tax effect (from Schedule RI, item 11.b) /////////////////
(itemize and describe all extraordinary items /////////////////
and other adjustments): /////////////////
a. (1) TEXT 4469 /////////////////
4469 3.a.(1)
----------------------------------------
(2) Applicable income tax effect RIAD 4486 3.a.(2)
-----------
b. (1) TEXT 4487 4487 3.b.(1)
----------------------------------------
(2) Applicable income tax effect RIAD 4488 3.b.(2)
-----------
c. (1) TEXT 4489 4489 3.c.(1)
----------------------------------------
(2) Applicable income tax effect RIAD 4491 3.c.(2)
---------
4. Equity capital adjustments from amended Reports /////////////////
of Income (from Schedule RI-A, item 2) /////////////////
(itemize and describe all adjustments): /////////////////
a. TEXT 4492 4492 4.a.
---------------------------------------------
b. TEXT 4493 4493 4.b.
---------------------------------------------
5. Cumulative effect of changes in accounting /////////////////
principles from prior years (from Schedule /////////////////
RI-A, item 9) (itemize and describe all changes /////////////////
in accounting principles): /////////////////
a. TEXT 4494 4494 5.a.
---------------------------------------------
b. TEXT 4495 4495 5.b.
---------------------------------------------
6. Corrections of material accounting errors from /////////////////
prior years (from Schedule RI-A, item 10) /////////////////
(itemize and describe all corrections): /////////////////
a. TEXT 4496 4496 6.a.
---------------------------------------------
b. TEXT 4497 4497 6.b.
----------------------------------------------------------------------
</TABLE>
9
<PAGE>
Legal Title of Bank: Crestar Bank
Call Date: 06/30/94
Address: P.O. Box 26665 ST-BK: 51-2430 FFIEC 031
City, State Zip: Richmond, VA 23261-6665 Page RI-8
Cert: 00832
---------
Schedule RI-E--Continued
<TABLE>
<CAPTION>
Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
7. Other transactions with parent holding company /////////////////////
(from Schedule RI-A,item 13) (itemize and describe /////////////////////
all such transactions): /////////////////////
a. TEXT 4498 Capital Contribution from parent company 4498 26,586 7.a.
-------------------------------------------------------------------
b. TEXT 4499 4499 7.b.
-------------------------------------------------------------------
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, /////////////////////
part II, item 5) (itemize and describe all adjustments): /////////////////////
a. TEXT 4521 Provision for Bank Acquisition 4521 11,429 8.a.
--------------------------------------------------------------------
b. TEXT 4522 Reserve Loan Loss-Intracompany 4522 (149) 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): 1498 1499 -
--------------------
No comment X (RIAD 4769)
--
Other explanations (please type or print clearly):
(TEXT 4769)
</TABLE>
10
<PAGE>
Legal Title of Bank: Crestar Bank
Call Date: 06/30/94
Address: P.O. Box 26665 ST-BK: 51-2430 FFIEC 031
City, State Zip: Richmond, VA 23261-6665 Page RC-1
Cert: 00832
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for June 30, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400
----
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS /////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): /////////////////
a. Noninterest-bearing balances /////////////////
and currency and coin(1).................................................. 0081 578,489 1.a.
b. Interest-bearing balances(2).............................................. 0071 25,098 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)................ 1754 702,933 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).............. 1773 1,974,205 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 414,690 3.a.
b. Securities purchased under agreements to resell........................... 0277 11,348 3.b.
4. Loans and lease financing receivables: /////////////////
a. Loans and leases, net of unearned income ----------------------
(from Schedule RC-C) RCFD 2122 7,882,999 ///////////////// 4.a.
b. LESS: Allowance for loan and lease losses.............................. RCFD 3123 200,465 ///////////////// 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 7,682,534 4.d.
5. Assets held in trading accounts.............................................. 3545 0 5.
6. Premises and fixed assets (including capitalized leases)..................... 2145 252,609 6.
7. Other real estate owned (from Schedule RC-M)................................. 2150 29,929 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding................. 2155 4,777 9.
10. Intangible assets (from Schedule RC-M)...................................... 2143 96,607 10.
11. Other assets (from Schedule RC-F)........................................... 2160 311,586 11.
12. Total assets (sum of items 1 through 11).................................... 2170 12,084,805 12.
</TABLE>
- ----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
11
<PAGE>
Legal Title of Bank: Crestar Bank
Call Date: 06/30/94
Address: P.O. Box 26665 ST-BK: 51-2430 FFIEC 031
City, State Zip: Richmond, VA 23261-6665 Page RC-2
Cert: 00832
Schedule RC - - Continued
<TABLE>
<CAPTION>
-----------------------------
Dollar Amounts in Thousands ////////////// Bil Mil Thou
- ------------------------------------------------------------------------------------------ -----------------------------
<S> <C> <C> <C>
LIABILITIES ////////////////////////////
13. Deposits ////////////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I).. RCON 2200 9,217,441 13.a
----------------------------
(1) Noninterest-bearing(1)............................ RCON 6631 1,907,896 //////////////////////////// 13.a.(1)
(2) Interest-bearing................................... RCON 6636 7,309,545 //////////////////////////// 13.a.(2)
----------------------------
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, ////////////////////////////
part II)........................................................................... RCFN 2200 0 13.b
----------------------------
(1) Noninterest-bearing................................ RCFN 6631 0 //////////////////////////// 13.b.(1)
(2) Interest-bearing................................... RCFN 6636 0 //////////////////////////// 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 901,017 14.a.
b. Securities sold under agreements to repurchase.................................... RCFD 0279 704,130 14.b.
15. a. Demand notes issued to the U.S. Treasury.......................................... RCON 2840 0 15.a.
b. Trading liabilities............................................................... RCFD 3548 0 15.b.
16. Other borrowed money: ////////////////////////////
a. With original maturity of one year or less........................................ RCFD 2332 18,284 16.a.
b. With original maturity of more than one year...................................... RCFD 2333 0 16.b.
17. Mortgage indebtedness and obligations under capitalized leases........................ RCFD 2910 28,573 17.
18. Bank's liability on acceptances executed and outstanding.............................. RCFD 2920 4,777 18.
19. Subordinated notes and debentures..................................................... RCFD 3200 163,000 19.
20. Other liabilities (from Schedule RC-G)................................................ RCFD 2930 195,737 20.
21. Total liabilities (sum of items 13 through 20)........................................ RCFD 2948 11,232,959 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 210,000 24.
25. Surplus (exclude all surplus related to preferred stock).............................. RCFD 3839 135,632 25.
26. a. Undivided profits and capital reserves............................................. RCFD 3632 523,205 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities............. RCFD 8434 (16,991) 26.b.
27. Cumulative foreign currency translation adjustments................................... RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27)..................................... RCFD 3210 851,846 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, ////////////////////////////
22, and 28)........................................................................... RCFD 3300 12,084,805 29.
-----------------------------
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for Number
the bank by independent external auditors as of any --------------
date during 1993....................................... RCFD 6724 N/A M.1.
--------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
12
<PAGE>
Legal Title of Bank: Crestar Bank
Call Date: 06/30/94
Address: P.O. Box 26665 ST-BK: 51-2430 FFIEC 031
City, State Zip: Richmond, VA 23261-6665 Page RC-3
Cert: 00832
Schedule RC-A--Cash and Balances Due From Depository Institutions
Exclude assets held in trading accounts.
<TABLE>
<CAPTION>
C405
---------------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
--------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
----------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and currency and /////////////////// //////////////////////
coin..................................................................... 0022 528,409 ////////////////////// 1.
a. Cash items in process of collection and unposted debits............... ////////////////// 0020 375,649 1.a.
b. Currency and coin..................................................... ////////////////// 0080 152,760 1.b.
2. Balances due from depository institutions in the U.S..................... ////////////////// 0082 3,961 2.
a. U.S. branches and agencies of foreign banks (including their
IBFs)................................................................. 0083 0 ////////////////////// 2.a.
b. Other commercial banks in the U.S. and other depository institutions ////////////////// //////////////////////
in the U.S. (including their IBFs).................................... 0085 3,961 ////////////////////// 2.b.
3. Balances due from banks in foreign countries and foreign central banks... /////////////////// 0070 26,499 3.
a. Foreign branches of other U.S. banks.................................. 0073 0 ////////////////////// 3.a.
b. Other banks in foreign countries and foreign central banks............ 0074 26,499 ////////////////////// 3.b.
4. Balances due from Federal Reserve Banks.................................. 0090 44,718 0090 44,718 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 603,587 0010 603,587 5.
</TABLE>
<TABLE>
<CAPTION>
Memorandum Dollar Amounts in Thousands RCON Bil Mil Thou
---------------------------------------------------------------------------------------------------------------------------
<C> <C> <C>
1. Noninterest-bearing balances due from commercial banks in the U.S. //////////////////////
(included in item 2, column B above)..................................... 0050 3,864 M.1
</TABLE>
13
<PAGE>
Legal Title of Bank: Crestar Bank
Call Date: 06/30/94
Address: P.O. Box 26665 ST-BK: 51-2430 FFIEC 031
City, State Zip: Richmond, VA 23261-6665 Page RC-4
Cert: 00832
Schedule RC-B--Securities
Exclude assets held in trading accounts.
<TABLE>
<CAPTION>
C410
----
---------------------------------------------
(Column A) (Column B)
Amortized Fair Value
Cost
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
--------------------------------------------
1. U.S. Treasury securities.................................................... 0211 0 0213 0 1.
2. U.S. Government agency and corporation obligations ///////////////////////////////////////////
(exclude mortgage-backed securities): ///////////////////////////////////////////
a. Issued by U.S. Government agencies (2)................................... 1289 0 1290 0 2.a.
b. Issued by U.S. Government- ///////////////////////////////////////////
sponsored agencies (3)................................................... 1294 0 1295 0 2.b.
3. Securities issued by states and political subdivisions in the U.S.:
a. General obligations...................................................... 1676 10,256 1677 10,506 3.a.
b. Revenue obligations...................................................... 1681 49,822 1686 48,781 3.b.
c. Industrial development and similar obligations........................... 1694 445 1695 447 3.c.
4. Mortgage-backed securities (MBS): ////////////////////////////////////////////
a. Pass-through securities: ////////////////////////////////////////////
(1) Guaranteed by GNMA................................................... 1698 0 1699 0 4.a.(1)
(2) Issued by FNMA and FHLMC............................................. 1703 409,056 1705 400,034 4.a.(2)
(3) Privately-issued..................................................... 1709 0 1710 0 4.a.(3)
b. CMOs and REMICs: ////////////////////////////////////////////
(1) Issued by FNMA and FHLMC............................................. 1714 34,054 1715 33,955 4.b.(1)
(2) Privately-issued and collateralized ////////////////////////////////////////////
by MBS issued or guaranteed ////////////////////////////////////////////
FNMA, FHLMC, or GNMA................................................. 1718 2,278 1719 2,331 4.b.(2)
(3) All other privately-issued........................................... 1733 16,742 1734 16,801 4.b.(3)
5. Other debt securities:
a. Other domestic debt securities........................................... 1737 179,020 1738 173,295 5.a.
b. Foreign debt securities.................................................. 1742 1,260 1743 1,259 5.b.
6. Equity securities: ////////////////////////////////////////////
a. Investments in mutual funds.............................................. ////////////////////////////////////////////
b. Other equity securities with readily determinable fair value............. ////////////////////////////////////////////
c. All other equity securities(1)........................................... ////////////////////////////////////////////
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 702,933 1771 687,409 7.
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------
(Column C) (Column D)
Amortized Fair Value (1)
Cost
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
--------------------------------------------
1. U.S. Treasury securities.................................................... 1286 1,340,513 1287 1,326,764 1.
2. U.S. Government agency and corporation obligations ///////////////////////////////////////////
(exclude mortgage-backed securities): ///////////////////////////////////////////
a. Issued by U.S. Government agencies (2)................................... 1291 0 1293 0 2.a.
b. Issued by U.S. Government- ///////////////////////////////////////////
sponsored agencies (3)................................................... 1297 0 1298 0 2.b.
3. Securities issued by states and political subdivisions in the U.S.:
a. General obligations...................................................... 1678 0 1679 0 3.a.
b. Revenue obligations...................................................... 1690 0 1691 0 3.b.
c. Industrial development and similar obligations........................... 1696 0 1697 0 3.c.
4. Mortgage-backed securities (MBS): ///////////////////////////////////////////
a. Pass-through securities: ///////////////////////////////////////////
(1) Guaranteed by GNMA................................................... 1701 4,486 1702 4,421 4.a.(1)
(2) Issued by FNMA and FHLMC............................................. 1706 497,178 1707 484,062 4.a.(2)
(3) Privately-issued..................................................... 1711 0 1713 0 4.a.(3)
b. CMOs and REMICs: ///////////////////////////////////////////
(1) Issued by FNMA and FHLMC............................................. 1716 96,047 1717 96,695 4.b.(1)
(2) Privately-issued and collateralized ///////////////////////////////////////////
by MBS issued or guaranteed ///////////////////////////////////////////
FNMA, FHLMC, or GNMA................................................. 1731 1,953 1732 1,958 4.b.(2)
(3) All other privately-issued........................................... 1735 10,021 1736 10,017 4.b.(3)
5. Other debt securities:
a. Other domestic debt securities........................................... 1739 38,408 1741 38,505 5.a.
b. Foreign debt securities.................................................. 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 value............. 1749 10,400 1751 10,424 6.b.
c. All other equity securities(1)........................................... 1752 1,359 1753 1,359 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).............. 1772 2,000,365 1773 1,974,205 7.
</TABLE>
- --------------------------
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.3, 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 pass-through securities, CMOs, and REMICs)
issued by the Farm Credit Systenm, the Federal Home Loan Bank System, the
Federal Home Loan Mortgage Corporation, the Federal National Mortgage
Association, the Financing Corporation, Resolution Funding Corporation,
the Student Loan Marketing Association, and the Tennessee Valley Authority.
14
<PAGE>
Legal Title of Bank: Crestar Bank
Call Date: 06/30/94
Address: P.O. Box 26665 ST-BK: 51-2430 FFIEC 031
City, State Zip: Richmond, VA 23261-6665 Page RC-5
Cert: 00832
Schedule RC-B--Continued
<TABLE>
<CAPTION>
C412
----
Memoranda Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------- -------------------
<S> <C> <C> <C>
1. Pledged securities(2).......................................................................... 0416 1,146,154 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 694,380 M.2.a.(1)
(2) Over three months through 12 months..................................................... 0344 2,043 M.2.a.(2)
(3) Over one year through five years........................................................ 0345 761,172 M.2.a.(3)
(4) Over five years......................................................................... 0346 1,094,343 M.2.a.(4)
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1) through 2.a.(4))...... 0347 2,551,938 M.2.a.(5)
b. Floating rate debt securities with a repricing frequency of: /////////////////
(1) Quarterly or more frequently............................................................ 4544 108,713 M.2.b.(1)
(2) Annually or more frequently, but less frequently than quarterly......................... 4545 4,704 M.2.b.(2)
(3) Every five years or more frequently, but less frequently than annually.................. 4551 0 M.2.b.(3)
(4) Less frequently than every five years................................................... 4552 0 M.2.b.(4)
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1) through 2.b.(4)).... 4553 113,417 M.2.b.(5)
c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal total /////////////////
debt securities from Schedule RC-B, sum of items 1 through 5, column A and D, minus /////////////////
nonaccrual debt securities included in Schedule RC-N, item 9, column C)..................... 0393 2,665,355 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) (included in /////////////////
Memorandum item 2.b.(5) above)................................................................. 5519 1,250 M.6.
7. Amortized cost of held-to-maturity securities sold or transferred to available-for-sale or /////////////////
trading securities during the calendar year-to-date............................................ 1778 0 M.7.
------------------
- -------------
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c, column D.
(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 item 2 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
</TABLE>
15
<PAGE>
Part I. Loans and Leases
Do not deduct the allowance for loan and lease losses from
amounts reported in this schedule. Report total loans and
leases, net of unearned income. Exclude assets held in
trading accounts.
<TABLE>
<CAPTION>
------
C415
------------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
-------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate............................................. 1410 3,548,758 ////////////////// 1.
a. Construction and land development..................................... ////////////////// 1415 213,488 1.a.
b. Secured by farmland (including farm residential and other ////////////////// //////////////////
improvements)......................................................... ////////////////// 1420 15,057 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 440,258 1.c.(1)
(2) All other loans secured by 1-4 family residential properties: ////////////////// //////////////////
(a) Secured by first liens........................................ ////////////////// 5367 1,535,755
1.c.(2)(a)
(b) Secured by junior liens....................................... ////////////////// 5368 88,868
1.c.(2)(b)
d. Secured by multifamily (5 or more) residential properties............ ////////////////// 1460 120,150 1.d.
e. Secured by nonfarm nonresidential properties.......................... ////////////////// 1480 1,135,182 1.e.
2. Loans to depository institutions: ////////////////// //////////////////
a. To commercial banks in the U.S. ...................................... ////////////////// 1505 6,506 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 6,506 ////////////////// 2.a.(2)
b. To other depository institutions in the U.S. ......................... 1517 0 1517 0 2.b.
c. To banks in foreign countries......................................... ////////////////// 1510 481 2.c.
(1) To foreign branches of other U.S. banks........................... 1513 0 ////////////////// 2.c.(1)
(2) To other banks in foreign countries............................... 1516 481 ////////////////// 2.c.(2)
3. Loans to finance agricultural production and other loans to farmers...... 1590 481 1590 481 3.
4. Commercial and industrial loans: ////////////////// //////////////////
a. To U.S. addressees (domicile)......................................... 1763 1,583,050 1763 1,583,050 4.a.
b. To non-U.S. addressees (domicile)..................................... 1764 0 1764 0 4.b.
5. Acceptances of other banks: ////////////////// //////////////////
a. Of U.S. banks......................................................... 1756 0 1756 0 5.a.
b. Of foreign banks...................................................... 1757 0 1757 0 5.b.
6. Loans to individuals for household, family, and other personal ////////////////// //////////////////
expenditures (i.e., consumer loans) (includes purchased paper)........... ////////////////// 1975 2,284,940 6.
a. Credit cards and related plans (includes check credit and other ////////////////// //////////////////
revolving credit plans)............................................... 2008 1,087,528 ////////////////// 6.a.
b. Other (includes single payment, installment, and all student loans)... 2011 1,197,412 ////////////////// 6.b.
7. Loans to foreign governments and official institutions (including ////////////////// //////////////////
foreign central banks)................................................... 2081 341 2081 341 7.
8. Obligations (other than securities and leases) of states and political ////////////////// //////////////////
subdivisions in the U.S. (includes nonrated industrial development ////////////////// //////////////////
obligations)............................................................. 2107 199,395 2107 99,395 8.
9. Other loans.............................................................. 1563 247,381 ////////////////// 9.
a. Loans for purchasing or carrying securities (secured and unsecured).... ////////////////// 1545 43,841 9.a.
b. All other loans (exclude consumer loans).............................. ////////////////// 1564 203,540 9.b.
10. Lease financing receivables (net of unearned income)..................... ////////////////// 2165 4,730 10.
a. Of U.S. addressees (domicile)......................................... 2182 4,730 ////////////////// 10.a.
b. Of non-U.S. addressees (domicile)..................................... 2183 0 ////////////////// 10.b.
11. LESS: Any unearned income on loans reflected in items 1-9 above.......... 2123 0 2123 0 11.
12. Total loans and leases, net of unearned income (sum of items 1 through ////////////////// //////////////////
10 minus item 11) (total of column A must equal Schedule RC, item 4.a)... 2122 7,882,999 2122 7,882,999 12.
---------------------------------------
</TABLE>
16
<PAGE>
Schedule RC-C--Continued
Part I. Continued
<TABLE>
<CAPTION>
----------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
-----------------------------------------
Memoranda
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------ -----------------------------------------------
<S> <C> <C> <C> <C>
1. Commercial paper included in Schedule RC-C, part I, above................... 1496 0 1496 0
M.1.
2. Loans and Leases restructured and in compliance with modified terms ////////////////// //////////////////
(included in Schedule RC-C, part I, above): ////////////////// //////////////////
a. Loans secured by real estate: ////////////////// //////////////////
(1) To U.S. addressees (domicile)......................................... 1687 0 M.2.a.(1)
(2) To non-U.S. addressees (domicile)..................................... 1689 0 M.2.a.(2)
b. Loans to finance agricultural production and other Loans to farmers...... 1613 0 M.2.b
c. Commercial and industrial loans: ////////////////// //////////////////
(1) To U.S. addressees (domicile)......................................... 1758 0 M.2.c.(1)
(2) To non-U.S. addressees (domicile)..................................... 1759 0 M.2.c.(2)
d. All other loans (exclude loans to individuals for household, family, and //////////////////
other personal expenditures)............................................. 1615 0 M.2.d.
e. Lease financing receivables: //////////////////
(1) Of U.S. addressees (domicile)........................................ 1789 0 M.2.e.(1)
(2) Of non-U.S. addressees (domicile).................................... 1790 0 M.2.e.(2)
f. Total (sum of Memorandum items 2.a through 2.e).......................... 1616 0 M.2.f.
3. Maturity and repricing data for loans and leases(1) (excluding those in //////////////////
nonaccrual status): //////////////////
a. Fixed rate loans and leases with a remaining maturity of: //////////////////
(1) Three months or less.................................................. 0348 1,852,052 M.3.a.(1)
(2) Over three months through 12 months................................... 0349 445,985 M.3.a.(2)
(3) Over one year through five years...................................... 0356 1,129,955 M.3.a.(3)
(4) Over five years....................................................... 0357 801,309 M.3.a.(4)
(5) Total fixed rate loans and leases (sum of Memorandum items 3.a.(1) //////////////////
through 3.a.(4))...................................................... 0358 4,229,301 M.3.a.(5)
b. Floating rate loans with a repricing frequency of: //////////////////
(1) Quarterly or more frequently.......................................... 4554 3,194,018 M.3.b.(1)
(2) Annually or more frequently, but less frquently than quarterly........ 4555 224,682 M.3.b.(2)
(3) Every five years or more frequently, but less frequently than //////////////////
annually.............................................................. 4561 157,633 M.3.b.(3)
(4) Less frequently than every five years................................. 4564 16,312 M.3.b.(4)
(5) Total floating rate loans (sum of Memorandum items 3.b.(1) //////////////////
through 3.b.(4))...................................................... 4567 3,592,645 M.3.b.(5)
c. Total loans and leases (sum of Memorandum items 3.a.(5) and 3.b.(5)) (must //////////////////
equal the sum of total loans and leases, net from Schedule RC-C, part I, //////////////////
item 12, plus unearned income from Schedule RC-C, part I, item 11, minus //////////////////
total nonaccrual loans and leases from Schedule RC-N, sum of items 1 //////////////////
through 8, column C)...................................................... 1479 7,821,946 M.3.c.
4. Loans to finance commercial real estate, construction, and land development //////////////////
activities (not secured by real estate) included in Schedule RC-C, part I, //////////////////
items 4 and 9, column A, page RC-6(2)........................................ 2746 0 M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, above).... 5369 275,527 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 427,181
M.6.
</TABLE>
- ---------------------
(1) Memorandum item 3 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
(2) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, item 1, column A.
17
<PAGE>
<PAGE>
Schedule RC-D is to be completed only by banks with $1 billion or more in total
assets.
Schedule RC-D--Assets Held in Trading Accounts in
Domestic Offices Only
<TABLE>
<CAPTION>
--------
C420
--------- --------
Domestic Offices
------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ----------------------------------------------------------------------------------- ------------------
<S> <C> <C> <C>
1. U.S. Treasury securities........................................................ 1010 0 1.
2. U.S. Government agency and corporation obligations.............................. 1020 0 2.
3. Securities issued by states and political subdivisions in the U.S. ............. 1025 0 3.
4. Other bonds, notes, and debentures.............................................. 1045 0 4.
5. Certificates of deposit......................................................... 1026 N/A 5.
6. Commercial paper................................................................ 1027 N/A 6.
7. Banker's acceptances............................................................ 1028 9,377 7.
8. Other........................................................................... 1029 1 8.
9. Total (sum of items 1 through 8)................................................ 2146 9,378 9.
------------------
18
<PAGE>
Schedule RC-C--Continued
Part II. Loans to Small Businesses and Small Farms
Schedule RC-C, Part II is to be reported only with the June Report of Condition.
Report the number and amount currently outstanding as of June 30 of business
loans with "original amounts" of $1,000,000 or less and farm loans with
"original amounts" of $500,000 or less. The following guidelines should be
used to determine the "original amount" of a loan: (1) For loans drawn down
under lines of credit or loan commitments, the "original amount" of the loan
is the size of the line of credit or loan commitment when the line of credit
or loan commitment was most recently approved, extended, or renewed prior
to the report date. However, if the amount currently outstanding as of the
report date exceeds this size, the "original amount" is the amount currently
outstanding on the report date. (2) For loan participations and syndications,
the "original amount" of the loan participation or syndication is the entire
amount of the credit originated by the lead lender. (3) For all other loans,
the "original amount" is the total amount of the loan at origination or the
amount currently outstanding as of the report date, whichever is larger.
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
Loans to Small Businesses
1. Indicate in the appropriate box at the right whether all or substantially all
of the bank's "Loans secured by nonfarm nonresidential properties" in domestic offices
reported in Schedule RC-C, part I, item 1.e, column B, and all or substantially all of
the bank's "Commercial and industrial loans to U.S. addressees" in domestic offices C418
reported in Schedule RC-C, part I, item 4.a, column B, have original amounts of $100,000 YES NO
or less (see instructions)......................................................................6999 /////// X
If YES, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5.
If NO, skip items 2.a and 2.b, complete items 3 and 4 below, and go to item 5.
</TABLE>
<TABLE>
<CAPTION>
---------------------------
Number of Loans
---------------------------
<S> <C> <C>
2. Report the total number of loans currently outstanding for each of the following
Schedule RC-C, part I, loan categories: RCON////////////////////
a: "Loans secured by nonfarm nonresidential properties" in domestic ////////////////////////
offices reported in Schedule RC-C, part I, item 1.e, column 8............................... 5562 N/A 2.a.
b: "Commercial and industrial loans to U.S. addressees" in domestic offices ////////////////////////
reported in Schedule RC-C, part 1, item 4.a, column B....................................... 5563 N/A 2.b.
</TABLE>
<TABLE>
-------------------------------------
(Column A) (Column B)
Amount
Currently
Number of Loans Outstanding
--------------------------------------
Dollar Amounts in Thousands RCON RCON Bil Mil Thou
<S> <C> <C>
3. Number and amount currently outstanding of "Loans secured by nonfarm ///////////////////////////////////////////
nonresidential properties: in domestic offices reported in Schedule ///////////////////////////////////////////
RC-C, part I, item 1.e, column B (sum of items 3.a through 3.c must ///////////////////////////////////////////
be less than or equal to Schedule RC-C, part I, item 1.e, column B): ///////////////////////////////////////////
a. With original amounts of $100,000 or less ................................. 5564 1,630 5565 119,292 3.a.
b. With original amounts of more than $100,000 through $250,000............... 5566 1,006 5567 119,292 3.b.
c. With original amounts of more than $250,000 through $1,000,000............. 5568 1,021 5569 357,235 3.c.
4. Number and amount currently outstanding of "Commercial and industrial ///////////////////////////////////////////
loans to U.S. addressees" in domestic offices reported in Schedule RC-C, ///////////////////////////////////////////
part I, item 4.a, column B (sum of items 4.a through 4.c must be less than ///////////////////////////////////////////
or equal to Schedule RC-C, part I, item 4.a, column B): ///////////////////////////////////////////
a. With original amounts of $100,000 or less...................................5570 10,325 5571 126,068 4.a.
b. With original amounts of more than $100,000 through $250,000 ...............5572 987 5573 85,138 4.b.
c. With original amounts of more than $250,000 through $1,000,000..............5574 795 5575 200,789 4.c.
-------------------------------------------
Agricultural Loans to Small Farms
5. Indicate in the appropriate box at the right whether all or substantially all
of the bank's "Loans secured by farmland (including farm residential and other
improvements)" in domestic offices reported in Schedule RC-C, part I, item 1.b,
column B, and all or substantially all of the bank's "Loans to finance
agricultural production and other loans to farmer" in domestic offices reported
in Schedule RC-C, part I, item 3, column B, have original amounts of $100,000 or
less (see instructions)..... Yes No 6860 //////X
</TABLE>
If YES, complete items 6.a and 6.b below and do not complete items 7 and 8. If
NO, skip items 6.a and 6.b and complete items 7 and 8 below.
<TABLE>
Number of Loans
----------------------
<S> <C> <C>
6. Report the total number of loans currently outstanding for each of the following RCON/////////////////////
Schedule RC-C, part I, loan categories:
a. "Loans secured by farmland (including farm residential and other improvements)"
in domestic offices reported in Schedule RC-C, part I, item 1.b, column B..............5576 N/A 6.a.
b. "Loans to finance agricultural production and other loans to farmers" in ///////////////////////
domestic offices reported in Schedule RC-C, part I, item 3, column B:...................5577 N/A 6.b.
</TABLE>
19
<PAGE>
<TABLE>
-------------------------------------
(Column A) (Column B)
Amount
Currently
Number of Loans Outstanding
--------------------------------------
Dollar Amounts in Thousands RCON RCON Bil Mil Thou
<S> <C> <C>
7. Number and amount currently outstanding of "Loans secured by nonfarm ////////////////////////////////////////////
nonresidential properties: in domestic offices reported in Schedule ////////////////////////////////////////////
RC-C, part I, item 1.b, column B (sum of items 7.a through 7.c must ///////////////////////////////////////////
be less than or equal to Schedule RC-C, part I, item 1.b, column B): ///////////////////////////////////////////
a. With original amounts of $100,000 or less ................................. 5578 179 5579 4,771 7.a.
b. With original amounts of more than $100,000 through $250,000............... 5580 43 5581 4,599 7.b.
c. With original amounts of more than $250,000 through $500,000................5582 16 5583 3,655 7.c.
8. Number and amount currently outstanding of "Commercial and industrial ///////////////////////////////////////////
loans to U.S. addressees" in domestic offices reported in Schedule RC-C, ///////////////////////////////////////////
part I, item 3, column B (sum of items 8.a through 8.c must be less than ///////////////////////////////////////////
or equal to Schedule RC-C, part I, item 3, column B): ///////////////////////////////////////////
a. With original amounts of $100,000 or less...................................5584 455 5585 4,742 4.a.
b. With original amounts of more than $100,000 through $250,000 ...............5586 20 5587 2,036 4.b.
c. With original amounts of more than $250,000 through $500,000................5588 3 5589 545 4.c.
-------------------------------------------
</TABLE>
20
<PAGE>
Schedule RC-D--Trading Assets and Liabilities
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 interest rate,
foreign exchange rate, and other commodity and equity contracts (as reported
in Schedule RC-L, items 11, 12, and 13).
<TABLE>
<CAPTION>
C420
-------------------------
Dollar Amounts in Thousands ///////// Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
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 in domestic offices: ///////////////////////
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA..... RCON 3534 0 4.a.
b. CMOs and REMICs issued by FNMA or FHLMC.................................. RCON 3535 0 4.b.
c. All other................................................................ RCON 3536 0 4.c.
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........................................... RCFN 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.a.
b. In foreign offices....................................................... RCFN 3544 0 11.b.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, ///////////////////////
item 5)..................................................................... RCFD 3545 0 12.
</TABLE>
<TABLE>
<CAPTION>
-------------------------
LIABILITIES ///////// Bil Mil Thou
-------------------------
<S> <C> <C> <C>
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>
21
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page R
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036 C425
Schedule RC-E--Deposit Liabilities
Part I. Deposits in Domestic Offices
<TABLE>
<CAPTION>
Transaction Accounts
--------------------
(Column A) (Column B)
Total transaction Memo: Total
accounts (including demand deposits
total demand (included in
deposits) column A
------------------ -----------------
Dollar Amounts in Thousands RCON Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------- ------------------ -----------------
<S> <C> <C> <C> <C>
Deposits of: ////////////////// /////////////////
1. Individuals, partnerships, and corporations................................. 2201 2,940,690 2240 1,569,031
2. U.S. Government............................................................. 2202 21,366 2280 20,588
3. States and political subdivisions in the U.S. .............................. 2203 85,703 2290 63,554
4. Commercial banks in the U.S. ............................................... 2206 206,143 2310 206,143
a. U.S. branches and agencies of foreign banks.............................. ////////////////// /////////////////
b. Other commercial banks in the U.S. ...................................... ////////////////// /////////////////
5. Other depository institutions in the U.S. .................................. 2207 19,514 2312 19,514
6. Banks in foreign countries.................................................. 2213 3,592 2320 3,592
a. Foreign branches of other U.S. banks..................................... ////////////////// /////////////////
b. Other banks in foreign countries......................................... ////////////////// /////////////////
7. Foreign governments and official institutions ////////////////// /////////////////
(including foreign central banks)........................................... 2216 0 2300 0
8. Certified and official checks............................................... 2330 25,474 2330 25,474
9. Total (sum of items 1 through 8) (sum of ////////////////// /////////////////
columns A and C must equal Schedule RC, ////////////////// /////////////////
item 13.a).................................................................. 2215 3,302,482 2210 1,907,896
</TABLE>
<TABLE>
<CAPTION>
C425
Nontransaction
Accounts
------------------
(Column C)
Total
nontransaction
accounts
(including MMDAs)
------------------
<S> <C> <C> <C>
Deposits of: //////////////////
1. Individuals, partnerships, and corporations................................. 2346 5,888,820 1.
2. U.S. Government............................................................. 2520 516 2.
3. States and political subdivisions in the U.S. .............................. 2530 20,461 3.
4. Commercial banks in the U.S. ............................................... ////////////////// 4.
a. U.S. branches and agencies of foreign banks.............................. 2347 0 4.a.
b. Other commercial banks in the U.S. ...................................... 2348 2,285 4.b.
5. Other depository institutions in the U.S. .................................. 2349 2,877 5.
6. Banks in foreign countries.................................................. ////////////////// 6.
a. Foreign branches of other U.S. banks..................................... 2367 0 6.a.
b. Other banks in foreign countries......................................... 2373 0 6.b.
7. Foreign governments and official institutions //////////////////
(including foreign central banks)........................................... 2377 0 7.
8. Certified and official checks............................................... ////////////////// 8.
9. Total (sum of items 1 through 8) (sum of //////////////////
columns A and C must equal Schedule RC, //////////////////
item 13.a).................................................................. 2385 5,914,959 9.
</TABLE>
<TABLE>
<CAPTION>
Memoranda Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Selected components of total deposits (i.e., sum of item 9, columns A and C): ////////////////////
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts...... 6835 932,337 M.1.a.
b. Total brokered deposits.................................................. 2365 95,875 M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above): ////////////////////
(1) Issued in denominations of less than $100,000....................... 2343 0 M.1.c.(1)
(2) Issued either in denominations of $100,000 or in denominations greater ////////////////////
than $100,000 and participated out by the broker in shares of ////////////////////
$100,000 or less..................................................... 2344 87,121 M.1.c.(2)
d. Total deposits denominated in foreign currencies......................... 3776 0 M.1.d.
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 106,065 M.1.e.
2. Components of total nontransaction accounts (sum of Memoranda items 2.a ////////////////////
through 2.d must equal item 9, column c above): ////////////////////
a. Savings deposits: ////////////////////
(1) Money market deposit accounts (MMDAs)................................. 6810 1,755,952 M.2.a.(1)
(2) Other savings deposits (excludes MMDAs)............................... 0352 1,086,625 M.2.a.(2)
b. Total time deposits of less than $100,000................................. 6648 2,705,084 M.2.b.
c. Time certificates of deposit of $100,000 or more.......................... 6645 365,598 M.2.c.
d. Open-account time deposits of $100,000 or more............................ 6646 1,700 M.2.d.
3. All NOW accounts (included in column A above)................................ 2398 1,394,586 M.3.
</TABLE>
19
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-10
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
Schedule RC-E -- Continued
Part I. Continued
Memoranda (continued)
tinued)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Deposit Totals for FDIC Insurance Assessments(1)
------------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- --------------------------------------------------------------------------------------------- ------------------------
<S> <C> <C> <C>
4. Total deposits in domestic offices (sum of item 9, column A and item 9, column C) /////////////////////
(must equal Schedule RC, item 13.a)...................................................... 2200 9,217,441 M.4.
/////////////////////
a. Total demand deposits (must equal item 9, column B)................................... 2210 1,907,896 M.4.a.
b. Total time and savings deposits(2) (must equal item 9, column A plus item 9, /////////////////////
column C minus item 9, column B)...................................................... 2350 7,309,545 M.4.b.
------------------------
</TABLE>
- ---------------------------------
(1) An amended Certified Statement should be submitted to the FDIC if the
deposit totals reported in this item are amended after the semiannual
Certified Statement originally covering this report date has been filed
with the FDIC.
(2) For FDIC insurance assessment purposes, "total time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
<TABLE>
<CAPTION>
------------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- --------------------------------------------------------------------------------------------- ------------------------
<S> <C> <C> <C>
5. Time deposits of less than $100,000 and open-account time deposits of $100,000 or more ////////////////////////
(included in Memorandum items 2.b and 2.d above) with a remaining maturity or repricing ////////////////////////
frequency of:(1) ////////////////////////
a. Three months or less................................................................... 0359 670,013 M.5.a.
b. Over three months through 12 months (but not over 12 months)........................... 3644 1,077,693 M.5.b.
6. Maturity and repricing data for time certificates of deposit of $100,000 or more:(1) ////////////////////////
a. Fixed rate time certificates of deposit of $100,000 or more with a remaining ////////////////////////
maturity of: ////////////////////////
(1) Three months or less............................................................... 2761 108,359 M.6.a.(1)
(2) Over three months through 12 months................................................ 2762 136,027 M.6.a.(2)
(3) Over one year through five years................................................... 2763 89,555 M.6.a.(3)
(4) Over five years.................................................................... 2765 27,165 M.6.a.(4)
(5) Total fixed rate time certificates of deposit of $100,000 or more (sum of ////////////////////////
Memorandum items 6.a.(1) through 6.a.(4)).......................................... 2767 361,106 M.6.a.(5)
b. Floating rate time certificates of deposit of $100,000 or more with a repricing ////////////////////////
frequency of: ////////////////////////
(1) Quarterly or more frequently....................................................... 4568 4,492 M.6.b.(1)
(2) Annually or more frequently, but less frequently than quarterly.................... 4569 0 M.6.b.(2)
(3) Every five years or more frequently, but less frequently than annually............. 4571 0 M.6.b.(3)
(4) Less frequently than every five years.............................................. 4572 0 M.6.b.(4)
(5) Total floating rate time certificates of deposit of $100,000 or more (sum of ////////////////////////
Memorandum items 6.b.(1) through 6.b.(4)).......................................... 4573 4,492 M.6.b.(5)
c. Total time certificates of deposit of $100,000 or more (sum of Memorandum items 6.a.(5) ////////////////////////
and 6.b.(5)) (must equal Memorandum item 2.c. above)................................... 6645 365,598 M.6.c.
------------------------
</TABLE>
- ---------------------------------
(1) Memorandum items 5 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
20
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-11
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
Schedule RC-E--Continued
Part II. Deposits in Foreign Offices (including Edge and
Agreement subsidiaries and IBFs)
<TABLE>
<CAPTION>
--------------------
Dollar Amounts in Thousands RCFN Bil Mil Thou
- ---------------------------------------------------------------------------------------------- --------------------
<S> <C> <C> <C>
Deposits of: //////////////////
1. Individuals, partnerships, and corporations............................................... 2621 0 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks)............................ 2623 0 2.
3. Foreign banks (including U.S. branches and //////////////////
agencies of foreign banks, including their IBFs)........................................... 2625 0 3.
4. Foreign governments and official institutions (including foreign central banks)........... 2650 0 4.
5. Certified and official checks............................................................. 2330 0 5.
6. All other deposits........................................................................ 2668 0 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b)...................... 2200 0 7.
--------------------
</TABLE>
Schedule RC-F--Other Assets
<TABLE>
<CAPTION>
----------
C430
---------------------------
Dollar Amounts in Thousands /////////// Bil Mil Thou
- ---------------------------------------------------------------------------------------------- ---------------------------
<S> <C> <C> <C>
1. Income earned, not collected on loans..................................................... RCFD 2164 50,710 1.
2. Net deferred tax assets(1)................................................................ RCFD 2148 58,797 2.
3. Excess residential mortgage servicing fees receivable..................................... RCFD 5371 2,252 3.
4. Other (itemize amounts that exceed 25% of this item)...................................... RCFD 2168 199,827 4.
------------- ---------------------------
a. TEXT 3549 Investment In Sub-Omnitrust RCFD 3549 61,579 //////////////////////// 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 311,586
---------------------------- 5.
</TABLE>
Memorandum
<TABLE>
<CAPTION>
----------------------------
Dollar Amounts in Thousands /////////// Bil Mil Thou
- ---------------------------------------------------------------------------------------------- ----------------------------
<S> <C> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes............................ RCFD 5610 0 M.1.
----------------------------
</TABLE>
Schedule RC-G--Other Liabilities
<TABLE>
<CAPTION>
-----------
C435
---------------- -----------
Dollar Amounts in Thousands /////////// Bil Mil Thou
- ---------------------------------------------------------------------------------------------- ----------------------------
<S> <C> <C> <C>
1. a. Interest accrued and unpaid on deposits in domestic offices(2)......................... RCON 3645 12,441 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable) ............. RCFD 3646 76,515 1.b.
2. Net deferred tax liabilities(1)........................................................... RCFD 3049 0 2.
3. Minority interest in consolidated subsidiaries............................................ RCFD 3000 0 3.
4. Other (itemize amounts that exceed 25% of this item)...................................... RCFD 2938 106,781 4.
------------- ---------------------------
a. TEXT 3552 Trade Date Payable--Securities RCFD 3552 44,144 ///////////////////////// 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 195,737 5.
-----------------------------
</TABLE>
- -------------
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) For savings banks, include "dividends" accrued and unpaid on deposits.
21
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-12
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
---------
Schedule RC-H--Selected Balance Sheet Items for Domestic Offices
<TABLE>
<CAPTION>
C440
------
Domestic Offices
---------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Customers' liability to this bank on acceptances outstanding................ 2155 4,777 1.
2. Bank's liability on acceptances executed and outstanding.................... 2920 4,777 2.
3. Federal funds sold and securities purchased under agreements to resell...... 1350 426,038 3.
4. Federal funds purchased and securities sold under agreements to repurchase.. 2800 1,605,147 4.
5. Other borrowed money........................................................ 2850 18,284 5.
EITHER ////////////////////
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs.. 2163 25,455 6.
OR ////////////////////
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs... 2941 N/A 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement ////////////////////
subsidiaries, and IBFs)..................................................... 2192 12,084,358 8.
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement ////////////////////
subsidiaries, and IBFs)..................................................... 3129 11,232,512 9.
Items 10-17 include held-to-maturity and available-for sale securities in
domestic offices.
10. U.S. Treasury securities.............................................................. 1779 1,326,764 10.
11. U.S. Government agency and corporation obligations (exclude mortgage-backed ////////////////////
securities)........................................................................... 1785 0 11.
12. Securities issued by states and political subdivisions in the U.S. ................... 1786 60,523 12.
13. Mortgage-backed securities: ////////////////////
a. Pass-through securities: ////////////////////
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA.................................... 1787 897,539 13.a.(1)
(2) Privately-issued................................................................ 1869 0 13.b.(2)
b. CMOs and REMICs: ////////////////////
(1) Issued by FNMA and FHLMC........................................................ 1877 130,749 13.b.(1)
(2) Privately-issued................................................................ 1152 30,995 13.b.(2)
14. Other domestic debt securities......................................................... 3159 217,525 14.
15. Foreign debt securities................................................................ 3160 1,260 15.
16. Equity securities: ////////////////////
a. Investments in mutual funds......................................................... 3161 0 16.a.
b. Other equity securities with readily determinable fair values....................... 3162 10,424 16.b.
c. All other equity securities......................................................... 3169 1,359 16.c.
17. Total held-to-maturity and available-for-sale securities (sum of items 10 through 16... 3170 2,677,138 17.
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
EITHER ///////////////////
1. Net due from the IBF of the domestic offices of the reporting bank.......... 3051 N/A M.1.
OR ///////////////////
2. Net due to the IBF of the domestic offices of the reporting bank............ 3059 0 M.2.
</TABLE>
Schedule RC-I--Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices.
<TABLE>
<CAPTION>
C445
------
Dollar Amounts in Thousands RCFN Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Total IBF assets of the consolidated bank (component of Schedule RC, ////////////////////
item 12).................................................................... 2133 N/A 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, ////////////////////
part I, item 12, column A).................................................. 2076 N/A 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, ////////////////////
item 4, column A)........................................................... 2077 N/A 3.
4. Total IBF liabilities (component of Schedule RC, item 21)................... 2898 N/A 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of ////////////////////
Schedule RC-E, part II, items 2 and 3)...................................... 2379 N/A 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, ////////////////////
4, 5, and 6)................................................................ 2381 N/A 6.
</TABLE>
22
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-13
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
---------
Schedule RC-K--Quarterly Average (1)
<TABLE>
<CAPTION>
------------
C455
---------------------------
Dollar Amounts in Thousands ////////// Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS ///////////////////////////////
1. Interest-bearing balances due from depository institutions................. RCFD 3381 373 1.
2. U.S. Treasury securities and U.S. Government agency and corporation ///////////////////////////////
obligations (2)............................................................... RCFD 3382 1,877,020 2.
3. Securities issued by states and political subdivisions in the U.S. (2).......... RCFD 3383 64,512 3.
4. a. Other debt securities (2)................................................... RCFD 3647 250,381 4.a.
b. Equity securities (3) (includes investments in mutual funds and Federal ///////////////////////////////
Reserve stock).......................................................... RCFD 3648 11,544 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 461,066 5.
6. Loans: ///////////////////////////////
a. Loans in domestic offices: ///////////////////////////////
(1) Total loans......................................................... RCON 3360 7,683,809 6.a.(1)
(2) Loans secured by real estate........................................ RCON 3385 3,584,039 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers. RCON 3386 6,727 6.a.(3)
(4) Commercial and industrial loans..................................... RCON 3387 1,557,633 6.a.(4)
(5) Loans to individuals for household, family, and other personal ///////////////////////////////
expenditures........................................................ RCON 3388 2,164,140 6.a.(5)
(6) Obligations (other than securities and leases) of states and ///////////////////////////////
political subdivisions in the U.S. ................................. RCON 3389 187,275 6.a.(6)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and ///////////////////////////////
IBFs.................................................................... RCFN 3360 0 6.b.
7. Assets held in trading accounts............................................ RCFD 3401 1,925 7.
8. Lease financing receivables (net of unearned income)....................... RCFD 3484 5,661 8.
9. Total assets............................................................... RCFD 3368 11,396,253 9.
LIABILITIES ///////////////////////////////
10. Interest-bearing transaction accounts in domestic offices (NOW accounts, ///////////////////////////////
ATS accounts, and telephone and preauthorized transfer accounts) (exclude ///////////////////////////////
demand deposits)........................................................... RCON 3485 1,429,427 10.
11. Nontransaction accounts in domestic offices: ///////////////////////////////
a. Money market deposit accounts (MMDAs)................................... RCON 3486 1,796,018 11.a.
b. Other savings deposits.................................................. RCON 3487 1,085,859 11.b.
c. Time certificates of deposit of $100,000 or more........................ RCON 3345 368,734 11.c.
d. All other time deposits................................................. RCON 3469 2,730,243 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement ///////////////////////////////
subsidiaries, and IBFs..................................................... RCFN 3404 0 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 1,062,905 13.
14. Other borrowed money....................................................... RCFD 3355 23,810 14.
---------------------------
- ------------
(1) For all items, banks have the option of reporting either (1) an average of
daily figures for the quarter, or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter).
(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.
</TABLE>
23
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-14
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
Schedule RC-L--Off-Balance Sheet Items
Please read carefully the instructions for the preparation of Schedule RC-L.
Some of the amounts reported in Schedule RC-L are regarded as volume indicators
and not necessarily as measures of risk.
<TABLE>
<CAPTION>
C460
------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unused commitments: ////////////////////
a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., home ////////////////////
equity lines................................................................................ 3814 384,021 1.a.
b. Credit card lines........................................................................... 3815 1,677,406 1.b
c. Commercial real estate, construction, and land development: ////////////////////
(1) Commitments to fund loans secured by real estate........................................ 3816 104,374
1.c.(1)
(2) Commitments to fund loans not secured by real-estate.................................... 6550 0
1.c.(2)
d. Securities underwriting..................................................................... 3817 0 1.d.
e. Other unused commitments.................................................................... 3818 2,590,650 1.e.
2. Financial standby letters of credit and foreign office guarantees.............................. 3819 301,722 2.
--------------------------
a. Amount of financial standby letters of credit conveyed to others RCFD 3820 10,326 //////////////////// 2.
a.
--------------------------
3. Performance standby letters of credit and foreign office guarantees............................ 3821 66,393 3.
a. Amount of performance standby letters of credit conveyed to --------------------------
others............................................................ RCFD 3822 0 //////////////////// 3.a.
--------------------------
4. Commercial and similar letters of credit....................................................... 3411 71,882 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. Mortgages transferred (i.e., sold or swapped) with recourse that have been treated as sold
for Call Report purposes: ////////////////////
a. FNMA and FHLMC residential mortgage loan pools: ////////////////////
(1) Outstanding principal balance of mortgages transferred as of the report date............ 3650 0
9.a.(1)
(2) Amount of recourse exposure on these mortgages as of the report date.................... 3651 0
9.a.(2)
b. Private (nongovernment-issued or -guaranteed) residential mortgage loan pools: ////////////////////
(1) Outstanding principal balance of mortgages transferred as of the report date........... 3652 0
9.b.(1)
(2) Amount of recourse exposure on these mortgages as of the report date.................... 3653 0
9.b.(2)
c. Farmer Mac agricultural mortgage loan pools: ////////////////////
(1) Outstanding principal balance of mortgages transferred as of the report date............ 3654 0
9.c.(1)
(2) Amount of recourse exposure on these mortgages as of the report date.................... 3655 0
9.c.(2)
10. When-issued securities: ////////////////////
a. Gross commitments to purchase............................................................... 3434 0 10.a.
b. Gross commitments to sell................................................................... 3435 0 10.b.
11. Interest rate contracts (exclude when-issued securities): ////////////////////
a. Notional value of interest rate swaps....................................................... 3450 1,745,181 11.a.
b. Futures and forward contracts............................................................... 3823 478,909 11.b.
c. Option contracts (e.g., options on Treasuries): ////////////////////
(1) Written option contracts................................................................ 3824 97,658
11.c.(1)
(2) Purchased option contracts.............................................................. 3825 296,953
11.c.(2)
12. Foreign exchange rate contracts: ////////////////////
a. Notional value of exchange swaps (e.g., cross-currency swaps)............................... 3826 0 12.a.
b. Commitments to purchase foreign currencies and U.S. dollar exchange (spot, forward, ////////////////////
and futures)................................................................................ 3415 8,263 12.b.
c. Option contracts (e.g., options on foreign currency): ////////////////////
(1) Written option contracts................................................................ 3827 0
12.c.(1)
(2) Purchased option contracts.............................................................. 3828 0
12.c.(2)
</TABLE>
24
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-15
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
Schedule RC-L--Continued
<TABLE>
<CAPTION>
-----
C461
--------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
13. Contracts on other commodities and equities: ////////////////////
a. Notional value of other swaps (e.g., oil swaps)......................... 3829 0 13.a.
b. Futures and forward contracts (e.g., stock index and ////////////////////
commodity--precious metals, wheat, cotton, livestock-- ////////////////////
contracts).............................................................. 3830 0 13.b.
c. Option contracts (e.g., options on commodities, individual ////////////////////
stocks and stock indexes): ////////////////////
(1) Written option contracts............................................ 3831 0 13.c.(1)
(2) Purchased option contracts.......................................... 3832 0 13.c.(2)
14. All other off-balance sheet liabilities (itemize and describe ////////////////////
each component of this item over 25% of Schedule RC, item 28, ////////////////////
"Total equity capital").................................................... 3430 819,849 14.
////////////////////
--------- ------------------------------
a. TEXT 3555 Purchased Mortgage Servicing RCFD 3555 819,849 //////////////////// 14.a.
----------------------------------------
b. TEXT 3556 RCFD 3556 //////////////////// 14.b.
----------------------------------------
c. TEXT 3557 RCFD 3557 //////////////////// 14.c.
----------------------------------------
d. TEXT 3558 RCFD 3558 //////////////////// 14.d.
-----------------------------------------------------------------------
15. All other off-balance sheet assets (itemize and describe each ////////////////////
component of this item over 25% of Schedule RC, item 28, "Total ////////////////////
equity capital")........................................................... 5591 0 15.
////////////////////
---------- ------------------------------
a. TEXT 5592 RCFD 5592 //////////////////// 15.a.
----------------------------------------
b. TEXT 5593 RCFD 5593 //////////////////// 15.b.
----------------------------------------
c. TEXT 5594 RCFD 5594 //////////////////// 15.c.
----------------------------------------
d. TEXT 5595 RCFD 5595 //////////////////// 15.d.
-----------------------------------------------------------------------------------------------
</TABLE>
Memoranda
<TABLE>
<CAPTION>
--------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Not applicable
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 1,967,886 M.3.
a. Participations in commitments with an original maturity ---------- ----- ////////////////////
exceeding one year conveyed to others.................. RCFD 3834 0 //////////////////// M.3.a.
---------- ----- ////////////////////
4. To be completed only by banks with $1 billion or more in total assets: ////////////////////
Standby letters of credit and foreign office guarantees (both financial ////////////////////
and performance) issued to non-U.S. addressees (domicile) included in ////////////////////
Schedule RC-L, items 2 and 3, above......................................... 3377 881 M.4.
5. To be completed for the September report only: ////////////////////
Installment loans to individuals for household, family, and other personal ////////////////////
expenditures that have been securitized and sold without recourse (with ////////////////////
servicing retained), amounts outstanding by type of loan: ////////////////////
a. Loans to purchase private passenger automobiles.......................... 2741 N/A M.5.a.
b. Credit cards and related plans........................................... 2742 N/A M.5.b.
c. All other consumer installment credit (including mobile home loans)...... 2743 N/A M.5.c.
--------------------
</TABLE>
25
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-16
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
Schedule RC-M--Memoranda
<TABLE>
<CAPTION>
----------
C465
--------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------ --------------------
<S> <C> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers, directors, principal //////////////////
shareholders, and their related interests as of the report date: //////////////////
a. Aggregate amount of all extensions of credit to all executive officers, directors, principal //////////////////
shareholders, and their related interests........................................................ 6164 10,933 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 653,584 4.a
b. Mortgages serviced under a FHLMC contract: //////////////////
(1) Serviced with recourse to servicer............................................................ 5501 6,761
4.b.(1)
(2) Serviced without recourse to servicer......................................................... 5502 657,066
4.b.(2)
c. Mortgages serviced under a FNMA contract: //////////////////
(1) Serviced under a regular option contract...................................................... 5503 159,504
4.c.(1)
(2) Serviced under a special option contract...................................................... 5504 1,833,565
4.c.(2)
d. Mortgages serviced under other servicing contracts ............................................... 5505 4,727,408 4.d
5. To be completed only by banks with $1 billion or more in total assets: //////////////////
Customers' liability to this bank on acceptances outstanding (sum of items 5.a and 5.b must //////////////////
equal Schedule RC, item 9): //////////////////
a. U.S. addressees (domicile)......................................................................... 2103 4,777 5.a.
b. Non-U.S. addressees (domicile)..................................................................... 2104 0 5.b.
6. Intangible assets: //////////////////
a. Mortgage servicing rights......................................................................... 3164 21,453 6.a.
b. Other identifiable intangible assets: //////////////////
(1) Purchased credit card relationships........................................................... 5506 0
6.b.(1)
(2) All other identifiable intangible assets...................................................... 5507 44,539
6.b.(2)
c. Goodwill.......................................................................................... 3163 30,615 6.c.
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10)............................ 2143 96,607 6.d.
e. Intangible assets that have been grandfathered for regulatory capital purposes.................... 6442 268 6.e.
--------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
7. Does your bank have any mandatory convertible debt that is part of your Tier 2 YES NO
--------------------
capital?............................................................................................. 6167 X /// 7.
--------------------
If yes, complete items 7.a through 7.e: RCFD Bil Mil Thou
--------------------
a. Total equity contract notes, gross................................................................ 3290 28,000 7.a.
b. Common or perpetual preferred stock dedicated to redeem the above notes........................... 3291 28,000 7.b.
c. Total equity commitment notes, gross.............................................................. 3293 70,000 7.c
d. Common or perpetual preferred stock dedicated to redeem the above notes........................... 3294 70,000 7.d
e. Total (item 7.a minus 7.b plus 7.c minus 7.d)..................................................... 3295 0 7.e
</TABLE>
- ------------
(1) Do not report federal funds sold and securities purchased under
---
agreements to resell with other commercial banks in the U.S. in this item.
26
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-17
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
Schedule RC-M--Continued
<TABLE>
<CAPTION>
-------------------------
Dollar Amounts in Thousands ///////// Bil Mil Thou
- --------------------------------------------------------------------------------- -------------------------
<S> <C> <C> <C>
8. a. Other real estate owned: /////////////////////////
(1) Direct and indirect investments in real estate ventures................ RCFD 5372 0 8.a.(1)
(2) All other real estate owned: /////////////////////////
(a) Construction and land development in domestic offices.............. RCON 5508 2,074 8.a.(2)(a)
(b) Farmland in domestic offices....................................... RCON 5509 0 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices.............. RCON 5510 9,880 (2)(c)
(d) Multifamily (5 or more) residential properties in domestic /////////////////////////
offices............................................................ RCON 5511 0 8.a.(2)(d)
(e) Nonfarm nonresidential properties in domestic offices.............. RCON 5512 17,975 8.a.(2)(e)
(f) In foreign offices................................................. RCFN 5513 0 8.a.(2)(f)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule /////////////////////////
RC, item 7)............................................................ RCFD 2150 29,929 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 0 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule /////////////////////////
RC, item 8)............................................................ RCFD 2130 0 8.b.(3)
c. Total assets of unconsolidated subsidiaries and associated companies....... RCFD 5376 0 8.c.
9. Noncumulative perpetual preferred stock and related surplus included in /////////////////////////
Schedule RC, item 23, "Perpetual preferred stock and related surplus"......... RCFD 3778 0 9.
10. Mutual fund and annuity sales in domestic offices during the quarter (include /////////////////////////
proprietary, private label, and third party mutual funds): /////////////////////////
a. Money market funds......................................................... RCON 6441 977,588 10.a.
b. Equity securities funds.................................................... RCON 8427 23,979 10.b.
c. Debt securities funds...................................................... RCON 8428 27,398 10.c.
d. Other Mutual funds......................................................... RCON 8429 0 10.d.
e. Annuities.................................................................. RCON 8430 30,268 10.e.
-------------------------
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Memorandum Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interbank holdings of capital instruments (to be completed for the ////////////////////
December report only): ////////////////////
a. Reciprocal holdings of banking organizations' capital instruments........ 3836 N/A M.1.a.
b. Nonreciprocal holdings of banking organizations' capital instruments..... 3837 N/A M.1.b.
--------------------
- --------------------------------------------------------------------------------------------------------
</TABLE>
27
<PAGE>
Legal Title of Bank: Crestar Bank Call Date: 06/30/94
ST-BK: 51-2430 FFIEC 031
Address: P.O. Box 26665 Vendor ID: D Page RC-18
City, State Zip: Richmond, VA 23261-6665 Cert: 00832
Transit Number: 71000036
Schedule RC-N--Past Due and Nonaccrual Loans, Leases, and Other Assets
The FFIEC regards the information reported in all of Memorandum item 1, in items
1 through 10, column A, and in Memorandum items 2 through 4, column A, as
confidential.
<TABLE>
<CAPTION>
-------
C470
-------------------------------------------------------------
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 89 days or more
days and still and still
accruing accruing
-------------------------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
<C>
1. Loans secured by real estate: ///////////////// ///////////////// /////////////////
a. To U.S. addressees (domicile)............................. 1245 35,377 1246 11,132 1247 37,074
1.a.
b. To non-U.S. addressees (domicile)......................... 1248 0 1249 0 1250 0
1.b.
2. Loans to depository institutions and ///////////////// ///////////////// /////////////////
acceptances of other banks: ///////////////// ///////////////// /////////////////
a. To U.S. banks and other U.S. depository ///////////////// ///////////////// /////////////////
institutions............................................. 5377 0 5378 0 5379 0
2.a.
b. To foreign banks......................................... 5380 0 5381 0 5382 0
2.b.
3. Loans to finance agricultural production and ///////////////// ///////////////// /////////////////
other loans to farmers...................................... 1594 8 1597 0 1583 123
3.
4. Commercial and industrial loans: ///////////////// ///////////////// /////////////////
a. To U.S. addressees (domicile)............................. 1251 5,655 1252 422 1253 17,040
4.a.
b. To non-U.S. addressees (domicile)......................... 1254 0 1255 0 1256 0
4.b.
5. Loans to individuals for household, family, and ///////////////// ///////////////// /////////////////
other personal expenditures: ///////////////// ///////////////// /////////////////
a. Credit cards and related plans........................... 5383 12,467 5384 6,383 5385 0
5.a.
b. Other (includes single payment, installment, ///////////////// ///////////////// /////////////////
and all student loans)................................... 5386 17,193 5387 7,070 5388 1,622
5.b.
6. Loans to foreign governments and official ///////////////// ///////////////// /////////////////
institutions................................................ 5389 0 5390 0 5391 0
6.
7. All other loans............................................. 5459 0 5460 0 5461 5,194
8. Lease financing receivables: ///////////////// ///////////////// /////////////////
a. Of U.S. addressees (domicile)............................ 1257 438 1258 0 1259 0
8.a.
b. Of non-U.S. addressees (domicile)......................... 1271 0 1272 0 1791 0
8.b.
9. Debt securities and other assets (exclude other ///////////////// ///////////////// /////////////////
real estate owned and other repossessed assets)............. 3505 0 3506 0 3507 0
9.
-------------------------------------------------------------
</TABLE>
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed
portions of past due and nonaccrual loans and leases. Report in item 10 below
certain guaranteed loans and leases that have already been included in the
amounts reported in items 1 through 8.
<TABLE>
<CAPTION>
-------------------------------------------------------------
RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
-------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
10. Loans and leases reported in items 1 through 8 ///////////////// ///////////////// /////////////////
above which are wholly or partially guaranteed ///////////////// ///////////////// /////////////////
by the U.S. Government..................................... 5612 9,577 5613 6,245 5614 0
10.
a. Guaranteed portion of loans and leases included in ///////////////// ///////////////// /////////////////
item 10 above........................................... 5615 9,577 5616 6,245 5617 0
10.a.
-------------------------------------------------------------
</TABLE>
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665 Call Date: 06/30/94
City, State Zip: Richmond, VA 23261-6665 ST-BK: 51-2430 FFIEC 031
Page RC-19
Cert: 00832
---------
Schedule RC-N--Continued
<TABLE>
<CAPTION>
---------
Memoranda C473
---------------------------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ---------------------------------------------------- --------------------- -------------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1. Restructured loans and leases included in ////////////////// ////////////////// //////////////////
Schedule RC-N, items 1 through 8, above.......... 1658 0 1659 0 1661 4,144 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 344 6559 0 6560 0 M.2.
--------------------- -------------------- --------------------
3. Loans secured by real estate in domestic offices RCON Bil Mil Thou RCON Bil Mil Thou RCON Bil Mil Thou
(included in Schedule RC-N, item 1, above): --------------------- -------------------- --------------------
////////////////// ////////////////// //////////////////
a. Construction and land development............. 2759 656 2769 140 3492 1,458 M.3.a.
b. Secured by farmland........................... 3493 57 3494 240 3495 1,057 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 470 5399 500 5400 352 M.3.c.(1)
(2) All other loans secured by 1-4 family ////////////////// ////////////////// //////////////////
residential properties.................... 5401 29,105 5402 9,151 5403 11,086 M.3.c.(2)
d. Secured by multifamily (5 or more) ////////////////// ////////////////// //////////////////
residential properties........................ 3499 0 3500 52 3501 3,155 M.3.d.
e. Secured by nonfarm nonresidential properties.. 3502 5,089 3503 1,049 3504 19,966 M.3.e.
</TABLE>
<TABLE>
- ---------------------------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ---------------------------------------------------- --------------------- -------------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
4. Interest rate, foreign exchange rate, and other //////////////////
commodity and equity contracts: //////////////////
a. Book value of amounts carried as assets...... 3522 0 3528 0 M.4.a
b. Replacement cost of contracts with a positive //////////////////
replacement cost............................. 3529 0
3530 0 M.4.b.
- ---------------------------------------------------------------
</TABLE>
Schedule RC-O--Other Data for Deposit Insurance Assessments
An amended Certified Statement should be submitted to the FDIC if the amounts
reported in items 1 through 9 of this schedule are amended after the semiannual
Certified Statement originally covering this report date has been filed with the
FDIC.
<TABLE>
<CAPTION>
--------
C475
--------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ----------------------------------------------------------------------------------------------- --------------------
<S> <C> <C> <C>
1. Unposted debits (see instructions): //////////////////
a. Actual amount of all unposted debits..................................................... 0030 N/A 1.a.
OR //////////////////
b. Separate amount of unposted debits: //////////////////
(1) Actual amount of unposted debits to demand deposits.................................. 0031 0 1.b.(1)
(2) Actual amount of unposted debits to time and savings deposits(1)..................... 0032 0 1.b.(2)
2. Unposted credits (see instructions): //////////////////
a. Actual amount of all unposted credits.................................................... 3510 N/A 2.a.
OR //////////////////
b. Separate amount of unposted credits: //////////////////
(1) Actual amount of unposted credits to demand deposits................................. 3512 0 2.b.(1)
(2) Actual amount of unposted credits to time and savings deposits(1).................... 3514 0 2.b.(2)
3. Uninvested trust funds (cash) held in bank's own trust department (not included in total //////////////////
deposits in domestic offices)............................................................... 3520 0 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in //////////////////
Puerto Rico and U.S. territories and possessions (not included in total deposits): //////////////////
a. Demand deposits of consolidated subsidiaries............................................. 2211 2,855 4.a.
b. Time and savings deposits(1) of consolidated subsidiaries................................ 2351 0 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries..................... 5514 0 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions: //////////////////
a. Demand deposits in insured branches (included in Schedule RC-E, Part II)................. 2229 0 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part II).... 2383 0 5.b.
c. Interest accrued and unpaid on deposits in insured branches //////////////////
(included in Schedule RC-G, item 1.b).................................................... 5515 0 5.c.
--------------------
</TABLE>
- --------------
(1) For FDIC insurance assessment purposes, "time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
29
<PAGE>
Schedule RC-O -- Continued
<TABLE>
<CAPTION>
----------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------- ----------------------
<S> <C> <C> <C>
Item 6 is not applicable to state nonmember banks that have not been authorized by the /////////////////////
Federal Reserve to act as pass-through correspondents. /////////////////////
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on /////////////////////
behalf of its respondent depository institutions that are also reflected as deposit /////////////////////
liabilities of the reporting bank: /////////////////////
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, /////////////////////
Memorandum item 4.a).................................................................. 2314 5 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule RC-E, Part I, /////////////////////
Memorandum item 4.b).................................................................. 2315 0 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1) /////////////////////
a. Unamortized premiums.................................................................. 5516 0 7.a.
b. Unamortized discounts................................................................. 5517 0 7.b.
---------------------
- ----------------------------------------------------------------------------------------------------------------------------------
8. To be completed by banks with "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 2,858,952 8.
---------------------
- ----------------------------------------------------------------------------------------------------------------------------------
---------------------
9. Deposits in lifeline accounts............................................................ 5596 /////////////// 9.
---------------------
10. Benefit-responsive "Depository Institution Investment Contracts[fccq] (included in total
deposits in domestic offices)........................................................... 8,432 0 10.
---------------------
</TABLE>
- --------------------
(1) For FDIC insurance assessment purposes, "time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
Memoranda (to be completed each quarter except as noted)
<TABLE>
<CAPTION>
----------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------- ----------------------
<S> <C> <C> <C>
1. Total deposits in domestic offices of the bank (sum of Memorandum items 1.a.(1) and 1.b(1) /////////////////////
must equal Schedule RC, item 13.a): /////////////////////
a. Deposit accounts of $100,000 or less: /////////////////////
(1) Amount of deposit accounts of $100,000 or less..................................... 2702 6,794,742 M.1.a.(1)
(2) Number of deposit accounts of $100,000 or less (to be Number /////////////////////
--------------------------- /////////////////////
completed for the June report only).................. RCON 3779 1,268,497 ///////////////////// M.1.a.(2)
--------------------------- /////////////////////
b. Deposit accounts of more than $100,000: /////////////////////
(1) Amount of deposit accounts of more than $100,000..... Number 2710 2,422,699 M.1.b.(1)
---------------------------
(2) Number of deposit accounts of more than $100,000..... RCON 2722 8,359 ///////////////////// M.1.b.(2)
---------------------------------------------------
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by multiplying the
number of deposit accounts of more than $100,000 reported in Memorandum item 1.b.(2)
above by $100,000 and subtracting the result from the amount of deposit accounts of
more than $100,000 reported in Memorandum item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a method or procedure YES NO
for determining a better estimate of uninsured deposits than the estimate described -----------------
above...................................................................................... 6861 /// X M.2.a.
-----------------
RCON Bil Mil Thou
b. If the box marked YES has been checked, report the estimate of uninsured deposits -----------------
determined by using your bank's method or procedure........................................ 5597 N/A M.2.b.
-----------------
</TABLE>
- -------------------------------------------------------------------------------
Person to whom questions about the Reports of Condition C477
and Income should be directed: --------
Natie P. Hennelly, Assistant Vice President (404) 782-5320
- ------------------------------------------- ------------------------------
Name and Title (TEXT 8901) Area code and phone number (TEXT 8902)
30
<PAGE>
Schedule RC-R--Risk-Based Capital
This schedule must be completed by all banks as follows: Banks that reported
total assets of $1 billion or more in Schedule RC, item 12, for June 30, 1993,
must complete items 2 through 9 and Memorandum item 1. Banks with assets of less
than $1 billion must complete items 1 through 3 below or Schedule RC-R in its
entirety, depending on their response to item 1 below.
<TABLE>
<S> <C> <C> <C>
1. Test for determining the extent to which Schedule RC-R must be completed.
To be completed only by banks with total assets of less than $1 billion. C480
Indicate in the appropriate box at the right whether the bank has total YES NO
capital greater than or equal to eight percent of adjusted total assets.................. RCFD 6056 1.
--------------------------
</TABLE>
For purposes of this test, adjusted total assets equals total assets less
cash, U.S. Treasuries, U.S. Government agency obligations, and 80 percent
of U.S. Government-sponsored agency obligations plus the allowance for loan
and lease losses and selected off-balance sheet items as reported on
Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to complete
items 2 and 3 below. If the box marked NO has been checked, the bank must
complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual
risk-based capital ratio is less than eight percent or that the bank is not
in compliance with the risk-based capital guidelines.
<TABLE>
<CAPTION>
---------------------------------------
(Column A) (Column B)
Subordinated Debt(1) Other
and Intermediate Limited-
Items 2 and 3 are to be completed by all banks. Term Preferred Life Capital
Stock Instruments
------------------- -------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -------------------------------------------------------------------------------- ------------------- -------------------
<S> <C> <C> <C> <C> <C>
2. Subordinated debt(1) and other limited-life capital instruments (original ////////////////// //////////////////
weighted average maturity of at least five years) with a remaining ////////////////// //////////////////
maturity of: ////////////////// //////////////////
a. One year or less.......................................................... 3780 0 3786 0 2.a.
b. Over one year through two years........................................... 3781 0 3787 0 2.b.
c. Over two years through three years........................................ 3782 70,000 3788 0 2.c.
d. Over three years through four years....................................... 3783 28,000 3789 0 2.d.
e. Over four years through five years........................................ 3784 0 3790 0 2.e.
f. Over five years........................................................... 3785 0 3791 0 2.f.
---------------------------------------
</TABLE>
<TABLE>
<CAPTION>
RCFD Bil Mil Thou
-------------------
<S> <C> <C> <C>
3. Total qualifying capital (i.e., Tier 1 and Tier 2 capital) allowable under the risk-based
capital guidelines................................................................................ 3792 1,024,967 3.
-------------------
</TABLE>
<TABLE>
<CAPTION>
(Column A) (Column B)
Assets Credit Equiv-
Items 4-9 and Memorandum item 1 are to be completed Recorded alent Amount
by banks that answered NO to item 1 above and on the of Off-Balance
by banks with total assets of $1 billion or more. Balance Sheet Sheet Items(2)
------------------- -------------------
RCFD Bil Mil Thou RCFD Bil Mil Thou
------------------- -------------------
<S> <C> <C> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance sheet items assigned
to the Zero percent risk category: ////////////////// //////////////////
a. Assets recorded on the balance sheet: ////////////////// //////////////////
(1) Securities issued by, other claims on, and claims unconditionally ////////////////// //////////////////
guaranteed by, the U.S. Government and its agencies and other ////////////////// //////////////////
OECD central governments.............................................. 3794 1,351,844 //////////////////
4.a.(1)
(2) All other............................................................. 3795 199,270 //////////////////
4.a.(2)
b. Credit equivalent amount of off-balance sheet items....................... ////////////////// 3796 0 4.b.
------------------- -------------------
</TABLE>
- ----------------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.e,
"Total."
(2) Do not report in column B the risk-weighted amount of assets reported in
column A.
31
<PAGE>
Schedule RC-R--Continued
<TABLE>
<CAPTION>
-------------------------------------------
(Column A) (Column B)
Assets Credit Equiv-
Recorded alent Amount
on the of Off-Balance
Balance Sheet Sheet Items(1)
-------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance sheet items //////////////////// /////////////////
assigned to the 20 percent risk category: //////////////////// /////////////////
a. Assets recorded on the balance sheet: //////////////////// /////////////////
(1) Claims conditionally guaranteed by the U.S. Government and its //////////////////// /////////////////
agencies and other OECD central governments..................... 3798 284,934 ///////////////// 5.a.(1)
(2) Claims collateralized by securities issued by the U.S. Govern- //////////////////// /////////////////
ment and its agencies and other OECD central governments; by //////////////////// /////////////////
securities issued by U.S. Government-sponsored agencies; and //////////////////// /////////////////
by cash on deposit.............................................. 3799 0 ///////////////// 5.a.(2)
(3) All other....................................................... 3800 1,915,177 ///////////////// 5.a.(3)
b. Credit equivalent amount of off-balance sheet items................. //////////////////// 3801 9,881 5.b.
6. Assets and credit equivalent amounts of off-balance sheet items //////////////////// /////////////////
assigned to the 50 percent risk category: //////////////////// /////////////////
a. Assets recorded on the balance sheet................................ 3802 1,570,435 ///////////////// 6.a.
b. Credit equivalent amount of off-balance sheet items................. //////////////////// 3803 478,407 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 6,980,601 ///////////////// 7.a.
b. Credit equivalent amount of off-balance sheet items................. //////////////////// 3805 1,333,238 7.b.
8. On-balance sheet values excluded from the calculation of the risk-based
capital ratio (2)...................................................... 3806 (16,991) ///////////////// 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 12,285,270 ///////////////// 9.
-----------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-----------------------------------------
(Column A) (Column B)
Notional Replacement
Principal Cost
Memorandum Value (Market Value)
-------------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Notional principal value and replacement cost of interest rate and //////////////////// //////////////////
foreign exchange rate contracts (in column B, report only those //////////////////// //////////////////
contracts with a positive replacement cost): //////////////////// //////////////////
a. Interest rate contracts (exclude futures contracts)................. //////////////////// 3808 8,057 M.1.a.
(1) With a remaining maturity of one year or less................... 3809 875,952 //////////////////
M.1.a.(1)
(2) With a remaining maturity of over one year...................... 3810 1,263,135 //////////////////
M.1.a.(2)
b. Foreign exchange rate contracts (exclude contracts with an original //////////////////// //////////////////
maturity of 14 days or less and futures contracts).................. //////////////////// 3811 0 M.1.b.
(1) With a remaining maturity of one year or less................... 3812 8,263 //////////////////
M.1.b.(1)
(2) With a remaining maturity of over one year...................... 3813 0 //////////////////
M.1.b.(2)
------------------------------------------
- --------------
</TABLE>
(1) Do not report in column B the risk-weighted amount of assets reported in
Column A
(2) Until a final rule on the regulatory capital treatment of net unrealized
holding gains (losses) on available-for-sale
securities that is applicable to the reporting bank has taken effect, a
bank that has adopted FASB Statement No. 115
should include the difference between the fair value and amortized cost
of the available-for-sale securities in Item 8
and report the amortized cost of these securities in Item 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 account and accrued
receivables 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
<PAGE>
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on December 31, 1993
Crestar Bank Richmond , Virginia
- ------------------------------------- ------------------ --------------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief narrative
statement on the amounts reported in the Reports of Condition and Income. This
optional statement will be made available to the public, along with the
publicly available data in the Reports of Condition and Income, in response to
any request for individual bank report data. However, the information reported
in column A and in all of Memorandum item 1 of Schedule RC-N is regarded as
confidential and will not be released to the public. BANKS CHOOSING TO SUBMIT
THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT DOES NOT CONTAIN THE
NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK CUSTOMERS, REFERENCES TO THE
AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN SCHEDULE RC-N, OR ANY OTHER
INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD
COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. 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 OF THIS EFFECT WILL APPEAR ON ANY
PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
- --------------------------------------------------------------------------------
No comment / / (RCON 6979) / C471 / C472 /
----------------
BANK MANAGEMENT STATEMENT (please type or print clearly):
(TEXT 6980)
-------------------------------------------------- ------------------
Signature of Executive Officer of Bank Date of Signature
33
<PAGE>
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
...............................................................................
Crestar OMB No. For OCC: 1557-0081
P.O. Box 26665 June 30, 1994 OMB No. For FDIC: 3064-0052
Richmond VA 23261 OMB No. For Federal Reserve: 7100-0036
E512430000 005512430000 31
Expiration Date: 2/28/95
SPECIAL REPORT
(Dollar Amounts in Thousands)
-----------------------------------------------------
CLOSE OF BUSINESS FDIC Certificate Number
DATE
06/30/94 00832 C-700
- --------------------------------------------------------------------------------
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
................................................................................
The following information is required by Public Laws 90-44 and 102-242, but does
not constitute a part of the Report of Condition. With each Report of Condition,
these Laws require all banks to furnish a report of all loans or other
extensions of credit to their executive officers made since the date of the
previous Report of Condition. Data regarding individual loans or other
extensions of credit are not required. If no such loans or other extensions of
credit were made during the period, insert "none" against subitem (a). (Exclude
the first $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 O) for the definitions of
"executive officer" and "extension of credit," respectively. Exclude loans and
other extensions of credit to directors and principal shareholders who are not
executive officers.
................................................................................
<TABLE>
<S> <C> <C> <C> <C> <C>
----------------------
a. Number of loans made to executive officers since the previous Call Report date......... RCFD 3561 0 a.
----------------------
b. Total dollar amount of above loans (in thousands of dollars)........................... RCFD 3562 0 b.
----------------------
c. Range of interest charged on above loans
------------------------------------------------------
(example: 9 3/4% = 9.75).............................. RCFD 7701/7702 0.00 % to 0.00 % c.
------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------
- -----------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER DATE (Month, Day, Year)
AUTHORIZED TO SIGN REPORT
Peter C. Toms, Senior Vice President July 27, 1994
- -----------------------------------------------------------------------
NAME AND TITLE OF PERSON TO WHOM AREA CODE/PHONE NUMBER (TEXT 8904)
INQUIRIES MAY BE DIRECTED (TEXT 8903)
Natie P. Hennelly, Assistant Vice President (804) 782-5320
- ------------------------------------------------------------------------
FDIC 8040/53 (12-92)
