<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 30, 1996.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
OTTER TAIL POWER COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MINNESOTA 41-0462685
(State or other (I.R.S. Employer
jurisdiction of incorporation Identification No.)
or organization)
</TABLE>
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
(218) 739-8200
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
--------------------------
A.E. ANDERSON
Vice President, Finance
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
(218) 739-8200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
<TABLE>
<S> <C>
GARY L. TYGESSON RICHARD W. ASTLE
Dorsey & Whitney LLP Sidley & Austin
Pillsbury Center South Suite 4300
220 South Sixth Street One First National Plaza
Minneapolis, Minnesota 55402 Chicago, Illinois 60603
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS REGISTRANT
SHALL DETERMINE BASED ON MARKET CONDITIONS.
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/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities........................... $50,000,000(2) 100% $50,000,000 $17,242
</TABLE>
(1) Estimated in accordance with Rule 457 solely for purposes of computing the
registration fee.
(2) Or, in the case of debt securities issued at an original issue discount,
such greater principal amount as shall result in an aggregate offering price
of the amount set forth above.
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.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED AUGUST 30, 1996
$50,000,000
OTTER TAIL POWER COMPANY
DEBT SECURITIES
------------------
Otter Tail Power Company (the "Company") may offer from time to time up to
$50,000,000 aggregate initial offering price of its debt securities, including
First Mortgage Bonds and unsecured notes, debentures or other evidences of
indebtedness (collectively referred to as "Debt Securities"), in one or more
series, at prices and on terms to be determined at the time of sale. The terms
of the Debt Securities in respect of which this Prospectus is being delivered,
including, where applicable, the series designation, the principal amount of the
series, the maturity, the provisions for redemption and sinking fund payments
and other provisions, together with the terms of offering of such Debt
Securities, will be set forth in the supplement accompanying this Prospectus
(the "Prospectus Supplement").
The Company may sell the Debt Securities to or through underwriters or
dealers, directly to other purchasers or through agents. See "Plan of
Distribution." The Prospectus Supplement will set forth the names of any
underwriters, dealers or agents, any applicable commissions, discounts or
allowances and the net proceeds to the Company from such sale.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is .
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices at Seven World Trade Center, Suite 1300, New York, New York
10048 and 1400 Citicorp Center, 500 West Madison Street, Chicago, Illinois
60601. Copies of such material can be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549, at prescribed rates.
The Company has filed with the Commission a registration statement on Form
S-3 with respect to the Debt Securities (herein, together with all amendments
and exhibits, referred to as the "Registration Statement") under the Securities
Act of 1933, as amended. 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 and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement, which may
be inspected without charge at the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
copies of which may be obtained from the Commission at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission under the Exchange Act
(File No. 0-368) are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1995.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31 and June 30, 1996.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Debt Securities shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the respective dates of filing of such documents.
Any statement contained herein or in a document all or part of which is
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus and the Prospectus
Supplement to the extent that a statement contained herein or therein or in any
documents subsequently filed with the Commission which also is or is deemed to
be incorporated by reference herein or therein 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
the Prospectus Supplement.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated herein by reference (not
including exhibits thereto unless such exhibits are specifically incorporated by
reference into the information that the Registration Statement incorporates).
Requests for such copies should be directed to Jay D. Myster, Secretary, Otter
Tail Power Company, 215 South Cascade Street, Box 496, Fergus Falls, Minnesota
56538-0496, telephone number: (218) 739-8200.
2
<PAGE>
THE COMPANY
The Company is an operating public utility engaged in the production,
transmission, distribution and sale of electric energy in western Minnesota,
eastern North Dakota and northeastern South Dakota. The territory served by the
Company's electric utility operations is predominantly agricultural, including a
part of the Red River Valley. By customer category, 52.2% of 1995 electric
revenues was derived from commercial and industrial customers, 31.9% from
residential customers and 15.9% from other sources, including municipalities,
farms and power pools.
The Company, through its subsidiaries, is also engaged in other businesses
located in the upper midwest region of the United States which are referred to
in this Prospectus as Health Services Operations, Manufacturing Operations and
Other Business Operations. Health Services Operations consist of certain
businesses acquired beginning in 1993, including a diagnostic medical imaging
company, a management company for a number of diagnostic medical imaging
companies, and a medical imaging company that sells and services diagnostic
medical imaging equipment and associated supplies and accessories. Manufacturing
Operations include businesses acquired beginning in 1990 in such areas as metal
parts stamping and fabrication, agricultural equipment and plastic pipe
extrusion. Other Business Operations include businesses involved in such areas
as electrical and telephone construction contracting, radio broadcasting, waste
incinerating and telephone/cable television utility. The Company derived
approximately 38% of its consolidated operating revenues from these other
businesses during 1995, approximately 31% during 1994 and approximately 27%
during 1993.
The Company was incorporated in 1907 under the laws of the State of
Minnesota. Its principal executive office is located at 215 South Cascade
Street, Box 496, Fergus Falls, Minnesota 56538-0496, telephone number: (218)
739-8200.
USE OF PROCEEDS
The net proceeds to be received by the Company from the issue and sale of
the Debt Securities offered hereby will be used to repay short-term and other
indebtedness, to redeem one or more outstanding series of First Mortgage Bonds
and/or Cumulative Preferred Shares and for general corporate purposes. See
"Construction Program and Financing."
CONSTRUCTION PROGRAM AND FINANCING
The Company is continually expanding, replacing and improving its electric
utility facilities. During 1995, the Company invested approximately $28,327,000
for additions to its electric utility properties. Capital expenditures of
approximately $4,000,000 were made in Health Services Operations, $4,000,000 in
Manufacturing Operations and $2,000,000 in Other Business Operations by Company
subsidiaries during 1995.
Total capital expenditures for the Company and its subsidiaries during the
five-year period 1996-2000 are estimated to be approximately $171,000,000. Of
this amount, $14,000,000 is for Health Services Operations, $9,000,000 for
Manufacturing Operations and $7,000,000 for Other Business Operations. The
Company estimates that during the five years 1996 through 2000 it will invest
for electric utility construction approximately $141,000,000 (including
allowance for funds used during construction). The Company continuously reviews
options for increasing its generating capacity, but at this time has no firm
plans for additional base load generating plant construction. The majority of
electric utility expenditures for the five-year period 1996 through 2000 will be
for work related to the Company's transmission and distribution system.
The Company estimates that funds currently on hand, combined with funds
internally generated in the next five years, will be sufficient to meet all
sinking fund payments for First Mortgage Bonds and to provide for the majority
of its 1996-2000 electric utility construction program expenditures. Additional
short-term or long-term financing will be required in the period 1996-2000 in
connection
3
<PAGE>
with a portion of the Company's estimated capital project expenditures, the
maturity of First Mortgage Bonds and a Long-Term Lease Obligation ($21,000,000),
in the event the Company decides to refund or retire early any of its presently
outstanding debt or Cumulative Preferred Shares or for other corporate purposes.
The foregoing estimates of capital expenditures and funds internally
generated may be subject to substantial changes due to unforeseen factors, such
as changed economic conditions, competitive conditions, technological changes,
new environmental and other governmental regulations, changed tax laws and rate
regulation, and acquisitions by subsidiaries.
RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1991 1992 1993 1994 1995
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratios of Earnings to Fixed Charges..................................... 4.38 4.06 3.98 4.23 3.96
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
--------------------
1995 1996
--------- ---------
<S> <C> <C>
Ratios of Earnings to Fixed Charges..................................... 4.04 4.10
</TABLE>
For purposes of computing the ratio of earnings to fixed charges: (i)
earnings consist of consolidated net income to which has been added total income
tax expense and fixed charges; and (ii) fixed charges consist of interest on
long-term debt and other interest charges and amortization of debt expense,
premium and discount.
DESCRIPTION OF FIRST MORTGAGE BONDS
GENERAL
If the Debt Securities are issued as First Mortgage Bonds, those First
Mortgage Bonds will be issued in one or more series under the Company's
Indenture of Mortgage dated as of July 1, 1936 to First Trust National
Association (formerly named First Trust Company of Saint Paul and First Trust
Company, Inc.) (the "corporate Trustee") and Louis S. Headley (James A.
Ehrenberg having succeeded as individual Trustee), as Trustees (the "First
Mortgage Indenture Trustees"), as supplemented by forty-five supplemental
indentures (the "Prior Supplemental Indentures," the twenty-first of which, the
"Revised Indenture," revised and restated the provisions of said Indenture of
Mortgage as theretofore amended and supplemented), and as proposed to be further
supplemented by each new supplemental indenture (a "New Supplemental Indenture")
creating a new series of First Mortgage Bonds. Said Indenture of Mortgage, as so
supplemented and as so to be supplemented, is herein called the "First Mortgage
Indenture." As used herein, the term "New First Mortgage Bonds" refers to any
new series of First Mortgage Bonds in respect of which this Prospectus is being
delivered.
The summaries of the First Mortgage Indenture set forth below do not purport
to be complete and are subject to the detailed provisions of the First Mortgage
Indenture, a copy of which is filed with the Commission as an exhibit to the
Registration Statement and is incorporated in this section by reference.
Capitalized terms used in this section which are not otherwise defined in this
Prospectus shall have the meanings ascribed to them in the First Mortgage
Indenture. Whenever particular provisions or terms defined in the First Mortgage
Indenture are referred to in this section, such provisions or definitions are
incorporated by reference as part of the statements made in this section, and
such statements are qualified in their entirety by such reference. References to
article and section numbers herein, unless otherwise indicated, are references
to article and section numbers of the First Mortgage Indenture.
TERMS OF NEW FIRST MORTGAGE BONDS
Reference is made to the Prospectus Supplement for a description of the
following terms and other information with respect to the New First Mortgage
Bonds: (1) the designation and aggregate principal amount of the New First
Mortgage Bonds; (2) the date on which the New First Mortgage Bonds will mature;
(3) the rate per annum at which the New First Mortgage Bonds will bear interest
and the date from which such interest will accrue; (4) the dates on which such
interest will be payable;
4
<PAGE>
and (5) any redemption provisions, sinking fund provisions or other specific
terms applicable to the New First Mortgage Bonds. The holders of the outstanding
First Mortgage Bonds do not have the right to tender such First Mortgage Bonds
to the Company for repurchase upon the Company's becoming involved in a highly
leveraged transaction or change of control involving the Company, and the
Company does not currently intend to afford the holders of the New First
Mortgage Bonds such a right.
The New First Mortgage Bonds will be issued only in fully registered form,
without coupons, in the denominations of $1,000 and any integral multiple
thereof. The New First Mortgage Bonds will be exchangeable in the manner
provided in the First Mortgage Indenture. No charge will be made by the Company
for any exchange or transfer of New First Mortgage Bonds, other than for stamp
taxes or other governmental charges, if any, applicable thereto. Principal of
and any premium or interest on the New First Mortgage Bonds will be payable at
the office of the corporate Trustee in St. Paul, Minnesota, except that interest
may, at the option of the Company, be paid by checks or drafts payable to the
registered holders of the New First Mortgage Bonds of such series mailed to such
holders at their addresses appearing on the registry books of the corporate
Trustee. The Company is not required to make transfers or exchanges of New First
Mortgage Bonds for a period of 10 days next preceding any interest payment date
for the New First Mortgage Bonds or any date for the selection of New First
Mortgage Bonds to be redeemed.
SINKING FUND
The First Mortgage Indenture establishes a sinking fund into which the
Company will deposit with the corporate Trustee on December 1 in each of the
years that the New First Mortgage Bonds will be outstanding (commencing with the
December 1 in the calendar year following the calendar year in which the New
First Mortgage Bonds are issued except to the extent, if any, that the New First
Mortgage Bonds will be issued to refund First Mortgage Bonds of a prior series)
an amount equal to 1% of the greatest aggregate principal amount of the New
First Mortgage Bonds at any time theretofore outstanding (after deducting the
principal amount of any New First Mortgage Bonds refunded by the issuance of
First Mortgage Bonds of another series), to be used not later than the following
February 1 for the partial redemption of the New First Mortgage Bonds; provided,
however, that such sinking fund requirement may be satisfied in whole or in part
by surrendering to the corporate Trustee for cancellation the New First Mortgage
Bonds reacquired by the Company at the amount which would have been required to
effect on the following February 1 the redemption through the sinking fund of
the New First Mortgage Bonds so delivered. Similar sinking funds have been
established with respect to all series of First Mortgage Bonds now outstanding.
(Section 8 of the Thirty-first, Forty-second and Forty-fourth Supplemental
Indentures; Section 17 of the Thirty-ninth Supplemental Indenture; and Sections
8 and 17 of the Forty-third and Forty-fifth Supplemental Indentures.)
DEPRECIATION REQUIREMENT
The First Mortgage Indenture establishes a depreciation requirement
equivalent to 2.5% per annum of the average amount of depreciable fundable
property for the period for which the requirement is calculated. Provision is
made for the deposit each year with the corporate Trustee of cash equal to the
excess of (i) the depreciation requirement for the preceding year over (ii) the
aggregate of amounts expended for fundable property during the preceding year
limited, however, to the cost of fundable property retired during such preceding
year. In lieu of depositing cash, the Company may elect to utilize net fundable
property not theretofore utilized for any purpose of the First Mortgage
Indenture. The Company is entitled to satisfy its depreciation requirement for
any year by the application of any depreciation credit remaining from prior
years. Cash deposited on account of the depreciation requirement for any year
may be withdrawn against net fundable property or against a depreciation credit
arising within three years after the deposit. Cash not so withdrawn may be
applied by the Company to reimburse the Company for its cost in acquiring First
Mortgage Bonds (but not in an amount exceeding the principal of and premium, if
any, payable upon the voluntary redemption of such First Mortgage Bonds) or may
be applied, and under certain circumstances must be set aside by
5
<PAGE>
the corporate Trustee to be applied, to the payment of the principal of First
Mortgage Bonds either at maturity or upon redemption (if and to the extent then
subject to redemption). (Sections 2.01(34), 6.02, 6.05, 9.03, 11.01 and 11.02 of
the First Mortgage Indenture.)
SECURITY AND PRIORITY
The First Mortgage Indenture constitutes, in the opinion of Dorsey & Whitney
LLP, counsel for the Company, a direct first mortgage lien upon substantially
all of the physical property, franchises and leases of the Company subject only
to permitted encumbrances. The First Mortgage Indenture contains provisions
subjecting to the lien thereof physical property, franchises and leases which
the Company may subsequently acquire, subject, however, to permitted
encumbrances and to liens existing or placed upon such property at the time of
acquisition thereof by the Company. The First Mortgage Indenture obligates the
Company not to create prior or parity liens or permit such liens to exist,
except for permitted encumbrances, liens existing at date of acquisition on
property acquired and purchase money mortgages created by the Company. (Granting
Clauses of the First Mortgage Indenture; Sections 2.01(29) and 8.05 of the
Revised Indenture.)
The New First Mortgage Bonds will rank equally and ratably (except as to any
sinking fund which may be established for the exclusive benefit of one or more
particular series of First Mortgage Bonds) with all First Mortgage Bonds
regardless of series at any time issued or outstanding under the First Mortgage
Indenture.
ISSUANCE OF THE NEW FIRST MORTGAGE BONDS AND OF ADDITIONAL FIRST MORTGAGE BONDS
Additional First Mortgage Bonds (including the New First Mortgage Bonds) may
be issued under the First Mortgage Indenture in principal amounts limited only
as follows:
(1) not to exceed 60% of the cost or fair value, whichever is less, of
net fundable property certified to the corporate Trustee as having been
constructed or otherwise acquired after December 31, 1957 and not otherwise
utilized for any purpose of the First Mortgage Indenture;
(2) not to exceed the amount of cash deposited with the corporate
Trustee for such purpose; or
(3) not to exceed the principal amount of First Mortgage Bonds
previously issued under the First Mortgage Indenture which have been retired
or are then being retired and which have not theretofore been utilized for
any purpose of the First Mortgage Indenture or are not otherwise
disqualified for such use;
provided, however, that, unless such additional First Mortgage Bonds are being
issued against other First Mortgage Bonds (retired or being retired), the
Company's net operating earnings (after deducting the depreciation requirement)
for a period of twelve consecutive calendar months within the fifteen calendar
months immediately preceding the calendar month in which the application for the
authentication and delivery of the First Mortgage Bonds is made shall have been
at least equal to two times the annual interest charges upon all First Mortgage
Bonds then to be outstanding and indebtedness of the Company, if any, secured by
a lien prior to or on a parity with the lien of the First Mortgage Indenture.
Such net operating earnings consist basically of the Company's operating income
before income taxes. As of December 31, 1995, net operating earnings were 3.96
times such interest charges, and after the sale of the New First Mortgage Bonds
(assuming an 8% interest rate), would be 3.14 times such interest charges.
(Section 2.01(33) and Article VI of the Revised Indenture.)
The New First Mortgage Bonds will be issued under item (1) or (3) above. As
of December 31, 1995, the Company had certified under the First Mortgage
Indenture net fundable property in excess of $30,000,000, which is available for
the issuance of First Mortgage Bonds under item (1) above (entitling the Company
to issue at least $19,000,000 principal amount of additional First Mortgage
Bonds on the basis of net fundable property). As of December 31, 1995, the
Company also was entitled to issue in excess of $100,000,000 principal amount of
First Mortgage Bonds on the basis of First Mortgage Bonds theretofore retired,
as described under item (3) above.
6
<PAGE>
WITHDRAWAL OF CERTAIN CASH
Cash deposited with the corporate Trustee as the basis for the issuance of
additional First Mortgage Bonds may be withdrawn by the Company in the amount of
60% of the lesser of the cost or fair value of net fundable property not
theretofore utilized for any purpose under the First Mortgage Indenture. Other
cash held under the First Mortgage Indenture may be withdrawn by the Company in
the amount of 100% of the lesser of the cost or fair value of net fundable
property not theretofore utilized for any purpose under the First Mortgage
Indenture. (Sections 6.05 and 11.01 of the First Mortgage Indenture.)
DIVIDEND COVENANT
The Company will covenant in each New Supplemental Indenture that so long as
any of the New First Mortgage Bonds issued thereunder remain outstanding, the
Company will not declare or pay dividends on its Common Shares (other than
dividends payable in Common Shares) or make any other distribution in respect of
its Common Shares unless, after giving effect thereto, the sum of all such
dividends and distributions subsequent to December 31, 1976 will not exceed
$8,000,000 plus the Company's net income available for Common Shares accrued
after that date. Each New Supplemental Indenture will further provide that in
computing such net income there shall be deducted, as an additional depreciation
charge, for each year after 1976, the amount, if any, by which the First
Mortgage Indenture depreciation requirement exceeds the depreciation charges
against such net income actually made by the Company on account of its
depreciable fundable property. The same or a less restrictive covenant applies
to all of the currently outstanding series of First Mortgage Bonds. Under the
most restrictive of these covenants, $9,686,000 of retained earnings of the
Company at December 31, 1995 were not available for dividends or other
distributions on the Common Shares. (Section 9 of the Thirty-first, Forty-second
and Forty-fourth Supplemental Indentures; Section 18 of the Thirty-ninth
Supplemental Indenture; and Sections 9 and 18 of the Forty-third and Forty-fifth
Supplemental Indentures.)
MODIFICATION OF THE FIRST MORTGAGE INDENTURE
In general, modifications or alterations of the First Mortgage Indenture and
of the rights or obligations of the Company and of the Bondholders may, with the
approval of the Company, be made at Bondholders' meetings upon the affirmative
vote of 75% of the Bondholders entitled to vote thereat with respect to matters
involved. Provisions relating to such modifications or alterations are subject
to certain conditions designed to safeguard the position of the Bondholders and
the First Mortgage Indenture Trustees with respect to certain matters of basic
importance, including payment of principal of and any premium and interest on
the First Mortgage Bonds and creation of liens ranking prior to or on a parity
with the lien of the First Mortgage Indenture. (Article XII of the First
Mortgage Indenture.)
DEFAULT PROVISIONS
The First Mortgage Indenture provides that the following constitute "events
of default": (a) default in the payment of interest on any First Mortgage Bond
for 60 days; or (b) default in the payment of principal of any First Mortgage
Bond; or (c) default in the due performance or observance of any other covenant
or condition for 60 days after written notice thereof; or (d) institution of
bankruptcy, insolvency or similar proceedings. The First Mortgage Indenture
Trustees are required to give notice to the Bondholders of all defaults known to
the First Mortgage Indenture Trustees unless such defaults have been cured
before the giving of such notice or unless (except in the case of a default in
the payment of principal of or any premium or interest on any of the First
Mortgage Bonds, or in the payment of moneys into any sinking fund for the First
Mortgage Bonds) the First Mortgage Indenture Trustees, in good faith, determine
that withholding of such notice is in the interests of the Bondholders. In case
of an event of default, the First Mortgage Indenture Trustees may, and upon the
request of the holders of at least 25% of the aggregate principal amount of the
First Mortgage Bonds then outstanding shall, declare the principal of all First
Mortgage Bonds then outstanding to be due and payable and, subject to the rights
of the First Mortgage Indenture Trustees to receive adequate
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<PAGE>
indemnification, take all needful steps for the protection of the holders of
such First Mortgage Bonds upon the conditions and with the effect provided in
the First Mortgage Indenture. Compliance with certain provisions of the First
Mortgage Indenture is required to be evidenced by various certificates filed by
the Company with the corporate Trustee; however, no periodic evidence is
required to be furnished as to the absence of events of default. (Article VIII
and Sections 13.01, 13.02, 13.04 and 15.02 of the First Mortgage Indenture.)
CONCERNING THE FIRST MORTGAGE INDENTURE TRUSTEES
First Trust National Association is corporate Trustee and James A.
Ehrenberg, an officer of the corporate Trustee, is individual Trustee under the
First Mortgage Indenture. The First Mortgage Indenture provides that the holders
of a majority in principal amount of the First Mortgage Bonds outstanding may
direct the First Mortgage Indenture Trustees to take action under the First
Mortgage Indenture, but under certain circumstances the First Mortgage Indenture
Trustees may decline to follow such direction or to exercise certain of their
powers. Moreover, the First Mortgage Indenture Trustees are under no obligation
to take such action unless furnished with indemnity satisfactory to the
corporate Trustee against all expenses and liability. (Section 13.20 of the
First Mortgage Indenture.)
The corporate Trustee acts as agent for participants in the Company's
Automatic Dividend Reinvestment and Share Purchase Plan. In the ordinary course
of business, affiliates of the corporate Trustee have engaged, and may in the
future engage, in commercial banking transactions with the Company and its
affiliates.
The corporate Trustee is also the Debenture Indenture Trustee under the
Debenture Indenture (each as defined below). As such, the corporate Trustee
would have a conflicting interest for purposes of the Trust Indenture Act if an
Event of Default were to occur under the First Mortgage Indenture or the
Debenture Indenture. In either such case, the corporate Trustee may be required
to eliminate such conflicting interest by resigning as the corporate Trustee or
the Debenture Indenture Trustee. There are other instances under the Trust
Indenture Act which would require the resignation of the corporate Trustee, such
as an affiliate of the corporate Trustee acting as underwriter with respect to
any of the Debt Securities.
DESCRIPTION OF DEBENTURES
GENERAL
The Debt Securities may be issued in one or more series under the Indenture
(For Unsecured Debt Securities) (the "Debenture Indenture") between the Company
and First Trust National Association, as Trustee (the "Debenture Indenture
Trustee"). The Debt Securities issued under the Debenture Indenture (the
"Debentures") will be unsecured obligations of the Company and shall not be
afforded any protection under the First Mortgage Indenture, pursuant to which
various series of First Mortgage Bonds have been, and may hereafter be, issued.
The First Mortgage Indenture does not limit the aggregate amount of First
Mortgage Bonds that may be issued except as described under "Description of
First Mortgage Bonds -- Issuance of the New First Mortgage Bonds and of
Additional First Mortgage Bonds." As of June 30, 1996, approximately
$125,000,000 of First Mortgage Bonds were outstanding.
The summaries of the Debenture Indenture set forth below do not purport to
be complete and are subject to the detailed provisions of the Debenture
Indenture, a copy of which is filed with the Commission as an exhibit to the
Registration Statement and is incorporated in this section by reference.
Capitalized terms used in this section which are not otherwise defined in this
Prospectus shall have the meanings ascribed to them in the Debenture Indenture.
Whenever particular provisions or terms defined in the Debenture Indenture are
referred to in this section, such provisions or definitions are incorporated by
reference as part of the statements made in this section, and such
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statements are qualified in their entirety by such reference. References to
article and section numbers herein, unless otherwise indicated, are references
to article and section numbers of the Debenture Indenture.
TERMS OF DEBENTURES
Reference is made to the Prospectus Supplement for a description of the
following terms and other information with respect to the series of Debentures
in respect of which this Prospectus is being delivered: (1) the title of such
series of Debentures; (2) any limit on the aggregate principal amount of such
Debentures or the series of which they are a part; (3) the Person or Persons to
whom interest on the Debentures of such series shall be payable if other than
the Persons in whose names such Debentures are registered; (4) the date or dates
on which the principal of any of such Debentures will be payable; (5) the rate
or rates (which may be fixed or variable) and/or the method of determination of
such rate or rates at which any of such Debentures will bear interest, if any,
the date or dates from which any such interest will accrue, the Interest Payment
Dates on which any such interest will be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date; (6) the place or places
where (i) the principal of or any premium or interest on any of such Debentures
will be payable, (ii) registration of transfer of such Debentures may be
effected, (iii) exchanges of such Debentures may be effected and (iv) notices
and demands to or upon the Company in respect of such Debentures may be served;
the Security Registrar for such Debentures and, if such is the case, that the
principal of such Debentures shall be payable without presentment or surrender
thereof; (7) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which any of such
Debentures may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation or obligations, if any, of the Company to redeem or purchase
any of such Debentures pursuant to any sinking fund or other mandatory
redemption provisions or at the option of the Holder thereof, and the period or
periods within which, or the date or dates on which, the price or prices at
which and the terms and conditions upon which any of such Debentures shall be
redeemed or purchased, in whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of a notice of redemption in the case
of mandatory redemption or redemption at the option of the Holder; (9) the
denominations in which any of such Debentures will be issuable, if other than
denominations of $1,000 and any integral multiple thereof; (10) if other than
the currency of the United States, the currency or currencies, including
composite currencies, in which payment of the principal of and any premium and
interest on any of such Debentures will be payable; (11) if the principal of or
any premium or interest on any of such Debentures is to be payable, at the
election of the Company or the Holder thereof, in a coin or currency other than
in which such Debentures are stated to be payable, the period or periods within
which and the terms and conditions upon which, such election is to be made; (12)
if the principal of or any premium or interest on such Debentures is to be
payable, or is to be payable at the election of the Company or a Holder thereof,
in securities or other property, the type and amount of such securities or other
property, or the formulary or other method or other means by which such amount
shall be determined, and the period or periods within which, and the terms and
conditions upon which, any such election may be made; (13) if the amount payable
in respect of principal of or any premium or interest on any of such Debentures
may be determined with reference to an index or other fact or event
ascertainable outside the Debenture Indenture, the manner in which such amounts
will be determined; (14) if other than the principal amount thereof, the portion
of the principal amount of any of such Debentures which shall be payable upon
declaration of acceleration of the Maturity thereof; (15) any addition to the
Events of Default applicable to any of such Debentures and any addition to the
covenants of the Company for the benefit of the Holders of such Debentures; (16)
the terms, if any, pursuant to which such Debentures may be converted into or
exchanged for shares of capital stock or other securities of the Company or any
other Person; (17) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of such Debentures denominated
in a currency other than Dollars or in a composite currency, and any additional
or alternative provisions for the reinstatement of the Company's indebtedness in
respect of such Debentures after the satisfaction and discharge thereof; (18) if
such Debentures are to be issued in global form, (i) any limitations on the
rights of the Holder or Holders of such Debentures to transfer
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or exchange the same or to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary form and (iii) any
and all other matters incidental to such Debentures; (19) if such Debentures are
to be issuable as bearer securities; (20) any limitations on the rights of the
Holders of such Debentures to transfer or exchange such Debentures or to obtain
the registration of transfer thereof, and if a service charge will be made for
the registration of transfer or exchange of such Debentures, the amount or terms
thereof; (21) any exceptions to the provisions governing payments due on legal
holidays or any variations in the definition of Business Day with respect to
such Debentures; and (22) any other terms of such Debentures of such series, or
any Tranche thereof, not inconsistent with the provisions of the Debenture
Indenture. (Section 301)
Debentures may be sold at a substantial discount below their principal
amount. Certain special United States federal income tax considerations
applicable to Debentures sold at an original issue discount may be described in
the applicable Prospectus Supplement. In addition, certain special United States
federal income tax or other considerations applicable to any Debentures which
are denominated in a currency or currency unit other than Dollars may be
described in the applicable Prospectus Supplement.
Except as may otherwise be described in the Prospectus Supplement, the
covenants contained in the Debenture Indenture would not afford Holders of
Debentures protection in the event of a highly-leveraged transaction or change
of control involving the Company.
FORM, EXCHANGE AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement,
Debentures of each series will be issuable only in fully registered form without
coupons and in denominations of $1,000 and any integral multiple thereof.
(Sections 201 and 302)
At the option of the Holder, subject to the terms of the Debenture Indenture
and the limitations applicable to global securities, Debentures of any series
will be exchangeable for other Debentures of the same series, of any authorized
denomination and of like tenor and aggregate principal amount. (Section 305)
Subject to the terms of the Debenture Indenture and the limitations
applicable to global securities, Debentures may be presented for exchange as
provided above for registration of transfer (duly endorsed or accompanied by a
duly executed instrument of transfer) at the office of the Security Registrar or
at the office of any transfer agent designated by the Company for such purpose.
Unless otherwise indicated, no service charge will be made for any registration
of transfer or exchange of Debentures, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. Every Debenture presented or surrendered for registration
of transfer or exchange shall (if so required by the Company, the Debenture
Indenture Trustee or the Security Registrar) be duly endorsed or accompanied by
an executed written instrument of transfer in form satisfactory to the Company,
the Debenture Indenture Trustee or the Security Registrar. (Section 305) Any
transfer agent (in addition to the Security Registrar) initially designated by
the Company for any Debenture will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional transfer agents or
rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that the Company will be required
to maintain a transfer agent in each Place of Payment for the Debentures of each
series. The Company may perform all functions of any office or agency. (Section
602)
The Company shall not be required to execute or register the transfer of or
the exchange of any Debenture, or any Tranche thereof, during a period of 15
days preceding the notice to be given identifying the Debentures called for
redemption, or any Debentures so selected for redemption, in whole or in part,
except the unredeemed portion of any such Debenture being redeemed in part.
(Section 305)
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PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debenture on any Interest Payment Date will be made to the
person in whose name such Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debentures of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time. Unless otherwise
indicated in the applicable Prospectus Supplement, the corporate trust office of
the Debenture Indenture Trustee in New York, New York will be designated as the
Company's sole Paying Agent for payment with respect to Debentures of each
series. Any other Paying Agents initially designated by the Company for the
Debentures of a particular series will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that the Company will be required to
maintain a Paying Agent in each Place of Payment for the Debentures of a
particular series. (Section 602)
Any moneys deposited by the Company with the Trustee or any Paying Agent for
the payment of the principal of or any premium or interest on any Debenture
which remains unclaimed at the end of two years after such principal, premium or
interest has become due and payable will be paid to the Company, and the Holder
of such Debenture, as an unsecured general creditor and not as a Holder,
thereafter may look only to the Company for payment thereof. (Section 603)
REDEMPTION
Any terms for the optional or mandatory redemption of Debentures will be set
forth in the applicable Prospectus Supplement or a supplement thereto. Except as
shall otherwise be provided in the applicable Prospectus Supplement with respect
to Debentures that are redeemable at the option of the Holder, Debentures will
be redeemable only upon notice by mail not less than 30 days nor more than 60
days prior to the date fixed for redemption, and, if less than all the
Debentures of a series, or any Tranche thereof, are to be redeemed, the
particular Debentures to be redeemed will be selected by the Securities
Registrar by such method as shall be provided for any particular series, or in
the absence of any such provision, by such method of random selection as the
Security Registrar deems fair and appropriate. (Sections 403 and 404)
Any notice of redemption at the option of the Company may state that such
redemption will be conditional upon receipt by the Paying Agent or Agents, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and any premium and interest on such Debentures and that if such
money has not been so received, such notice will be of no force and effect and
the Company will not be required to redeem such Debentures. (Section 404)
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
Under the terms of the Debenture Indenture, the Company may not consolidate
with or merge into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, unless (i) the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a
Person organized and existing under the laws of any domestic jurisdiction and
shall expressly assume the Company's obligations on the Debentures and under the
Debenture Indenture, (ii) immediately after giving effect to the transaction, no
Event of Default shall have occurred and be continuing and (iii) the Company
will have delivered to the Debenture Indenture Trustee an Officer's Certificate
and an Opinion of Counsel as provided in the Debenture Indenture. (Section 1101)
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EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
Debenture Indenture with respect to Debentures of any series: (a) failure to pay
any interest on any Debentures of such series within 60 days after the same
becomes due and payable; (b) failure to pay principal of or premium, if any, on
any Debenture of such series within three Business Days after the same becomes
due and payable; (c) failure to perform or breach of any other covenant or
warranty of the Company in the Debenture Indenture (other than a covenant or
warranty of the Company in the Debenture Indenture solely for the benefit of one
or more series of Debentures other than such series) for 60 days after written
notice to the Company by the Debenture Indenture Trustee, or to the Company and
the Debenture Indenture Trustee by the Holders of at least 33% in principal
amount of the Debentures of such series Outstanding under the Debenture
Indenture as provided in the Debenture Indenture; (d) certain events of
bankruptcy, insolvency or reorganization; and (e) any other Event of Default
specified in the applicable Prospectus Supplement with respect to Debentures of
a particular series. (Section 801)
An Event of Default with respect to a series of Debentures may not
necessarily constitute an Event of Default with respect to the Debentures of any
other series issued under the Debenture Indenture.
If an Event of Default with respect to any series of Debentures occurs and
is continuing, then either the Debenture Indenture Trustee or the Holders of not
less than 33% in principal amount of the Outstanding Debentures of such series
may declare the principal amount (or if the Debentures of such series are
Discount Securities, such portion of the principal amount thereof as may be
specified in the applicable Prospectus Supplement) of all of the Debentures of
such series to be due and payable immediately; provided, however, that if an
Event of Default occurs and is continuing with respect to more than one series
of Debentures, the Debenture Indenture Trustee or the Holders of not less than
33% in aggregate principal amount of the Outstanding Securities of all such
series, considered as one class, may make such declaration of acceleration and
not the Holders of the Debentures of any one of such series. (Section 802)
Subject to the provisions of the Debenture Indenture relating to the duties
of the Debenture Indenture Trustee in case an Event of Default shall occur and
be continuing, the Debenture Indenture Trustee will be under no obligation to
exercise any of its rights or powers under the Debenture Indenture at the
request or direction of any Holder, unless such Holder shall have offered to the
Debenture Indenture Trustee reasonable security or indemnity. (Section 903)
Subject to such provisions of the indemnification of the Debenture Indenture
Trustee, the Holders of a majority in principal amount of the Outstanding
Debentures of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Debenture
Indenture Trustee, or exercising any trust or power conferred on the Debenture
Indenture Trustee, with respect to the Debentures of that series. (Section 812)
No Holder of a Debenture of any series will have any right to institute any
proceeding with respect to the Debenture Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given written notice to the Debenture Indenture Trustee of
a continuing Event of Default with respect to the Debentures of such series,
(ii) the Holders of not less than a majority in aggregate principal amount of
the Outstanding Debentures of such series have made written request to the
Debenture Indenture Trustee, and such Holder or Holders have offered reasonable
indemnity to the Debenture Indenture Trustee, to institute such proceeding as
trustee and (iii) the Debenture Indenture Trustee has failed to institute such
proceeding, and has not received from the Holders of a majority in aggregate
principal amount of the Outstanding Debentures of that series a direction
inconsistent with such request, within 60 days after such notice, request and
offer. (Section 807) However, such limitations do not apply to a suit instituted
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by a Holder of a Debenture for the enforcement of payment of the principal of or
any premium or interest on such Debenture on or after the applicable due date
specified in such Debenture. (Section 808)
The Company will be required to furnish to the Debenture Indenture Trustee
annually, not later than October 1 in each year, a statement by an appropriate
officer as to such officer's knowledge of the Company's compliance with all
conditions and covenants under the Debenture Indenture, such compliance to be
determined without regard to any period of grace or requirement of notice under
the Debenture Indenture. (Section 606)
RIGHT TO CURE
At any time after the declaration of acceleration with respect to the
Debentures of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the Event or Events of Default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if
(a) the Company has paid or deposited with the Debenture Indenture
Trustee a sum sufficient to pay
(1) all overdue interest, if any, on all Debentures of such series;
(2) the principal of and premium, if any, on any Debentures of such
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in such Debentures;
(3) interest upon overdue interest, if any, at the rate or rates
prescribed therefor in such Debentures, to the extent that payment of
such interest is lawful; and
(4) all amounts due to the Debenture Indenture Trustee under the
Debenture Indenture; and
(b) any other Event or Events of Default with respect to the Debentures
of such series, other than the non-payment of the principal of the
Debentures of such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in the Debenture
Indenture. (Section 802)
MODIFICATION AND WAIVER
Without the consent of any Holder of Debentures, the Company and the
Debenture Indenture Trustee may enter into one or more supplemental indentures
to the Debenture Indenture for any of the following purposes: (a) to evidence
the assumption by any permitted successor to the Company of the covenants of the
Company in the Debenture Indenture and the Debentures; or (b) to add one or more
covenants of the Company or other provisions for the benefit of the Holders of
all or any series of Outstanding Debentures or to surrender any right or power
conferred upon the Company by the Debenture Indenture; or (c) to add any
additional Events of Default with respect to all or any series of Outstanding
Debentures; or (d) to change or eliminate any provision of the Debenture
Indenture or to add any new provision to the Debenture Indenture, provided that
if such change, elimination or addition will adversely affect the interests of
the Holders of Debentures of any series in any material respect, such change,
elimination or addition will become effective with respect to such series only
when the consent of the Holders of such series so affected has been obtained or
when there is no Debenture of such series remaining Outstanding under the
Debenture Indenture; or (e) to provide collateral security for the Debentures;
or (f) to establish the form or terms of Debentures of any series as permitted
by the Debenture Indenture; or (g) to provide for the authentication and
delivery of bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the registration, exchange
and replacement thereof and for giving of notice to, and the solicitation of the
vote or consent of, the Holders thereof, and for any and all other matters
incidental thereto; or (h) to evidence and provide for the acceptance of
appointment of a separate or successor
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Debenture Indenture Trustee under the Debenture Indenture with respect to the
Debentures of one or more series and to add or to change any of the provisions
of the Debenture Indenture as shall be necessary to provide for or to facilitate
the administration of the trusts under the Debenture Indenture by more than one
trustee; or (i) to provide for the procedures required to permit the utilization
of a noncertificated system of registration for any series of Debentures; or (j)
to change any place where (1) the principal of and any premium and interest on
any Debentures shall be payable, (2) any Debentures may be surrendered for
registration of transfer or exchange and (3) notices and demands to or upon the
Company in respect of Debentures and the Debenture Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any defective or
inconsistent provision or to make or change any other provisions with respect to
matters and questions arising under the Debenture Indenture, provided such
changes or additions shall not adversely affect the interests of the Holders of
Debentures of any series in any material respect. (Section 1201)
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Debentures of any series may waive compliance by the Company with
certain restrictive provisions of the Debenture Indenture. (Section 607) The
Holders of not less than a majority in principal amount of the Outstanding
Debentures of any series may waive any past default under the Debenture
Indenture with respect to such series, except a default in the payment of
principal, premium or interest and certain covenants and provisions of the
Debenture Indenture that cannot be modified or be amended without the consent of
the Holder of each Outstanding Debenture of such series affected. (Section 813)
Without limiting the generality of the foregoing, if the Trust Indenture Act
is amended after the date of the Debenture Indenture in such a way as to require
changes to the Debenture Indenture or the incorporation therein of additional
provisions or so as to permit changes to, or the elimination of, provisions
which, at the date of the Debenture Indenture or at any time thereafter, were
required by the Trust Indenture Act to be contained in the Debenture Indenture,
the Debenture Indenture will be deemed to have been amended so as to conform to
such amendment or to effect such changes or elimination, and the Company and the
Debenture Indenture Trustee may, without the consent of any Holders, enter into
one or more supplemental indentures to evidence or effect such amendment.
(Section 1201)
Except as provided above, the consent of the Holders of not less than a
majority in aggregate principal amount of the Debentures of all series then
Outstanding, considered as one class, is required for the purpose of adding any
provisions to, or changing in any manner, or eliminating any of the provisions
of, the Debenture Indenture pursuant to one or more supplemental indentures;
provided, however, that if less than all of the series of Debentures Outstanding
are directly affected by a proposed supplemental indenture, then the consent
only of the Holders of a majority in aggregate principal amount of Outstanding
Debentures of all series so directly affected, considered as one class, will be
required; and provided, further, that if the Debentures of any series have been
issued in more than one Tranche and if the proposed supplemental indenture
directly affects the rights of the Holders of one or more, but less than all,
such Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Debentures of all Tranches so directly
affected, considered as one class, will be required; and provided further, that
no such supplemental indenture may (a) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Debenture,
or reduce the principal amount thereof or the rate of interest thereon (or the
amount of any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon the redemption thereof,
or reduce the amount of the principal of any Discount Security that would be due
and payable upon a declaration of acceleration of Maturity or change the coin or
currency (or other property) in which any Debenture or any premium 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 of any Debenture
(or, in the case of redemption, on or after the redemption date) without, in any
such case, the consent of the Holder of such Debenture, (b) reduce the
percentage in principal amount of the Outstanding Debentures of any series, or
any
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Tranche thereof, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required for
any waiver of compliance with any provision of the Debenture Indenture or any
default thereunder and its consequences, or reduce the requirements for quorum
or voting, without, in any such case, the consent of the Holder of each
Outstanding Debenture of such series or Tranche, or (c) modify certain of the
provisions of the Debenture Indenture relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults with respect to the
Debentures of any series, or any Tranche thereof, without the consent of the
Holder of each Outstanding Debenture affected thereby. A supplemental indenture
which changes or eliminates any covenant or other provision of the Debenture
Indenture which has expressly been included solely for the benefit of one or
more particular series of Debentures or one or more Tranches thereof, or
modifies the rights of the Holders of Debentures of such series or Tranches with
respect to such covenant or other provision, will be deemed not to affect the
rights under the Debenture Indenture of the Holders of the Debentures of any
other series or Tranche. (Section 1202)
The Debenture Indenture provides that in determining whether the Holders of
the requisite principal amount of the Outstanding Debentures have given any
request, demand, authorization, direction, notice, consent or waiver under the
Debenture Indenture as of any date, or whether or not a quorum is present at a
meeting of Holders, (i) Debentures owned by the Company or any other obligor
upon the Debentures or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Securities
Outstanding under the Debenture Indenture, or all Outstanding Debentures of each
such series and each such Tranche, as the case may be, determined without regard
to this clause (i)) shall be disregarded and deemed not to be Outstanding; (ii)
the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof as provided in the Debenture Indenture;
and (iii) the principal amount of a Debenture denominated in one or more foreign
currencies or a composite currency that will be deemed to be Outstanding will be
the Dollar equivalent, determined as of such date in the manner prescribed for
such Debenture, of the principal amount of such Debenture (or, in the case of a
Debenture described in clause (ii) above, of the amount described in such
clause). (Section 101)
If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, election, waiver or other Act, the
Company may, at its option, by Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, election, waiver or other Act, but
the Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, election,
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 the record date shall be deemed to
be Holders for the purposes of determining whether Holders of the requisite
proportion of the Outstanding Debentures have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, direction,
waiver or other Act, and for that purpose the Outstanding Debentures shall be
computed as of the record date. Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Debenture and the Holder of every Debenture 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
Debenture Indenture Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Debenture. (Section 104)
DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement, any
Debenture, or any portion of the principal amount thereof, will be deemed to
have been paid for purposes of the Debenture Indenture, and, at the Company's
election, the entire indebtedness of the Company in respect thereof will be
deemed to have been satisfied and discharged, if there has been irrevocably
deposited with the Debenture Indenture Trustee or any Paying Agent (other than
the Company), in
15
<PAGE>
trust: (a) money in an amount which will be sufficient, or (b) Eligible
Obligations (as described below), which do not contain provisions permitting the
redemption or other prepaying thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any regard to
reinvestment thereof, will provide monies which, together with money, if any,
deposited with or held by the Debenture Indenture Trustee or such Paying Agent,
will be sufficient, or (c) a combination of (a) and (b) which will be
sufficient, to pay when due the principal of and any premium and interest due
and to become due on such Debentures or portions thereof. (Section 701) For this
purpose, unless otherwise indicated in the applicable Prospectus Supplement,
Eligible Obligations include direct obligations of, or obligations
unconditionally guaranteed by, the United States, entitled to the benefit of the
full faith and credit thereof, and certificates, depositary receipts or other
instruments which evidence a direct ownership interest in such obligations or in
any specific interest or principal payments due in respect thereof. (Section
101)
While the Company knows of no legal precedent on point, it is possible that,
for federal income tax purposes, any deposit contemplated in the preceding
paragraph could be treated as a taxable exchange of the related securities for
an issue of obligations of the trust or a direct interest in the cash and
securities held in the trust. In that case, Holders of such securities would
recognize gain or loss as if the trust obligations or the cash or securities
deposited, as the case may be, had actually been received by them in exchange
for their securities. In addition, such Holders thereafter would be required to
recognize for federal income tax purposes a share of the income, gain or loss of
the trust. The amount so required to be recognized could be different from the
amount that would be recognized in the absence of such deposit. Prospective
investors are urged to consult their own tax advisors as to the specific
consequences to them of any such deposit.
RESIGNATION OF DEBENTURE INDENTURE TRUSTEE
The Debenture Indenture Trustee may resign at any time by giving written
notice thereof to the Company or may be removed at any time by Act of the
Holders of a majority in principal amount of Debentures then Outstanding
delivered to the Debenture Indenture Trustee and the Company. No resignation or
removal of the Debenture Indenture Trustee and no appointment of a successor
trustee will become effective until the acceptance of appointment by a successor
trustee in accordance with the requirements of the Debenture Indenture. So long
as no Event of Default or event which, after notice or lapse of time, or both,
would become an Event of Default has occurred and is continuing and except with
respect to a Debenture Indenture Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Debentures, if the Company has
delivered to the Trustee a resolution of its Board of Directors appointing a
successor trustee and such successor has accepted such appointment in accordance
with the terms of the Debenture Indenture, the Debenture Indenture Trustee will
be deemed to have resigned and the successor will be deemed to have been
appointed as trustee in accordance with the Debenture Indenture. (Section 910)
NOTICES
Notices to Holders of Debentures will be given by mail to the addresses of
such Holders as they may appear in the Security Register. (Section 106)
TITLE
The Company, the Debenture Indenture Trustee and any agent of the Company or
the Debenture Indenture Trustee may treat the Person in whose name a Debenture
is registered as the absolute owner thereof (whether or not such Debenture may
be overdue) for the purpose of making payment and for all other purposes.
(Section 308)
GOVERNING LAW
The Debenture Indenture and the Debentures will be governed by, and
construed in accordance with, the laws of the State of New York, except to the
extent the law of any other jurisdiction shall be mandatorily applicable.
(Section 112)
16
<PAGE>
LIMITATION ON SUITS
The Debenture Indenture limits a Holder's right to institute any proceeding
with respect to the Debenture Indenture, the appointment of a receiver or
trustee, or for any other remedy under the Debenture Indenture. (Section 807)
MAINTENANCE OF PROPERTIES
The Debenture Indenture provides that the Company shall cause (or, with
respect to property owned in common with others, make reasonable effort to
cause) all its properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and shall cause
(or, with respect to property owned in common with others, make reasonable
effort to cause) to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as, in the judgment of the Company,
may be necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that nothing shall prevent the Company
from discontinuing, or causing the discontinuance of, the operation and
maintenance of any of its properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business. (Section 605)
CONCERNING THE DEBENTURE INDENTURE TRUSTEE
See "Description of First Mortgage Bonds -- Concerning the First Mortgage
Indenture Trustees" for a description of certain relationships between the
Debenture Indenture Trustee and the Company.
GLOBAL SECURITIES
Some or all of the Debentures of any series may be represented, in whole or
in part, by one or more global securities (each, a "Global Security") which will
have an aggregate principal amount equal to that of the Debentures represented
thereby. Each Global Security will be registered in the name of a depositary
(the "Depositary") or a nominee thereof identified in the applicable Prospectus
Supplement, will be deposited with such Depositary or nominee or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such other matters as
may be provided for pursuant to the Debenture Indenture.
As long as the Depositary, or its nominee, is the registered holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and holder of such Global Security and the Debentures
represented thereby for all purposes under the Debenture Indenture. Except in
limited circumstances, owners of beneficial interests in a Global Security will
not be entitled to have such Global Security or any Debentures represented
thereby registered in their names, will not receive or be entitled to receive
physical delivery of certificated Debentures in exchange therefor and will not
be considered to be the owners or holders of such Global Security or any
Debentures represented thereby for any purpose under the Debentures or the
Debenture Indenture. All payments of principal of and any premium and interest
on a Global Security will be made to the Depositary or its nominee, as the case
may be, as the Holder thereof. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such securities in
definitive form. These laws may impair the ability to transfer beneficial
interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debentures represented by the Global Security to
the accounts of its participants. Ownership of beneficial interests in a Global
Security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by the Depositary (with
respect to participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. Neither the Company, the Debenture Indenture
Trustee nor any of their respective agents
17
<PAGE>
will have any responsibility or liability for any aspect of the Depositary's or
any participant's records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities to or through underwriters or
dealers, directly to other purchasers or through agents. The Company may also
directly solicit offers to purchase the Debt Securities.
The Prospectus Supplement will set forth the terms of the offering,
including the name or names of any underwriters, dealers or agents, the purchase
price or prices of the Debt Securities offered thereby, the proceeds to the
Company from the sale of such Debt Securities, any initial public offering
price, any underwriting discount or commission and any discounts, concessions or
commissions allowed or reallowed or paid by any underwriter to other dealers.
Any initial public offering price and any discounts, concessions or commissions
allowed or reallowed or paid to dealers may be changed from time to time.
If so indicated in the Prospectus Supplement, the Company may authorize
underwriters, dealers or other persons acting as the Company's agents to solicit
offers by certain institutions to purchase the Debt Securities offered thereby
directly from the Company pursuant to contracts providing for payment and
delivery on a future date. Such contracts will be subject only to the conditions
set forth in the Prospectus Supplement, which will also set forth the commission
payable for solicitation of such contracts.
Underwriters, dealers and agents who participate in the distribution of the
Debt Securities may be entitled under agreements to be entered into with the
Company to indemnification by the Company against certain liabilities, including
liabilities under the Securities Act of 1933, as amended, or to contribution
with respect to payments which such underwriters, dealers or agents may be
required to make in respect thereof.
The Company does not intend to apply for the listing of the Debt Securities
on any national securities exchange. The Prospectus Supplement will indicate
whether any underwriter, dealer or agent intends to make a market in the Debt
Securities offered thereby. No assurance can be given as to the liquidity of any
trading market in the Debt Securities.
LEGAL OPINIONS
Legal matters with respect to the Debt Securities will be passed upon for
the Company by Dorsey & Whitney LLP, Minneapolis, Minnesota, and for any
underwriters, dealers, purchasers or agents by Sidley & Austin, Chicago,
Illinois. The statements as to matters of law and legal conclusions made under
"Description of First Mortgage Bonds -- Security and Priority" are made on the
authority of Dorsey & Whitney LLP.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report which is
incorporated herein by reference, and have been so incorporated in reliance upon
such report given upon their authority as experts in accounting and auditing.
18
<PAGE>
- -------------------------------------------
-------------------------------------------
- -------------------------------------------
-------------------------------------------
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED
SECURITIES TO WHICH IT RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES OFFERED HEREBY IN ANY
CIRCUMSTANCE IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information.......................... 2
Incorporation of Certain Documents by
Reference..................................... 2
The Company.................................... 3
Use of Proceeds................................ 3
Construction Program and Financing............. 3
Ratios of Earnings to Fixed Charges............ 4
Description of First Mortgage Bonds............ 4
Description of Debentures...................... 8
Plan of Distribution........................... 18
Legal Opinions................................. 18
Experts........................................ 18
</TABLE>
$50,000,000
OTTER TAIL POWER COMPANY
------------------------
DEBT SECURITIES
------------------------
- -------------------------------------------
-------------------------------------------
- -------------------------------------------
-------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the offering described in this Registration
Statement, other than underwriting discounts and commissions, are:
<TABLE>
<S> <C>
SEC registration fee............................................. $ 17,242
Minnesota mortgage registration tax.............................. 35,000
Mortgage recording fees.......................................... 7,500
Legal fees and expenses.......................................... 75,000
Printing and engraving expenses.................................. 20,000
Accountants' fees and expenses................................... 15,000
Rating agency fees and expenses.................................. 17,000
Blue Sky and Legal Investment fees and expenses (including
legal fees)..................................................... 7,500
Trustee's fees and expenses...................................... 5,500
Miscellaneous expenses........................................... 5,258
---------
Total.......................................................... $ 205,000*
---------
---------
</TABLE>
- ------------------------
*All fees and expenses, other than the SEC registration fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Minnesota Statutes Section 302A.521 contains detailed provisions for
indemnification of directors and officers of domestic or foreign corporations
under certain circumstances and subject to certain limitations.
Article VIII of the Bylaws of the Company contains provisions for
indemnification of its directors and officers consistent with the provisions of
Minnesota Statutes, Section 302A.521.
Article X of the Company's Restated Articles of Incorporation provides that
a director shall not be liable to the Company or its shareholders for monetary
damages for a breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Company or its
shareholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Sections
302A.559 or 80A.23 of the Minnesota Statutes, (iv) for any transaction for which
the director derived an improper personal benefit, or (v) for any act or
omission occurring prior to the date when said Article X became effective.
The Company has obtained insurance policies indemnifying the Company and the
Company's directors and officers against certain civil liabilities and related
expenses.
Reference is made to Section 9 of the Underwriting Agreement filed as
Exhibit 1-A hereto for a description of the indemnification arrangements for
this offering.
ITEM 16. LIST OF EXHIBITS
<TABLE>
<CAPTION>
PREVIOUSLY FILED
---------------------------
AS EXHIBIT
NUMBER FILE NO. NO. DESCRIPTION
- ---------- ------------ ------------- ------------------------------------------------------------------------
<C> <C> <C> <S>
1-A --Form of Underwriting Agreement for First Mortgage Bonds.
1-B --Form of Underwriting Agreement for Debentures.
4-D-1 2-14209 2-B-1 -- Twenty-First Supplemental Indenture from the Company to First Trust
Company of Saint Paul and Russell M. Collins, as Trustees, dated as of
July 1, 1958.
4-D-2 2-14209 2-B-2 -- Twenty-Second Supplemental Indenture dated as of July 15, 1958.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
PREVIOUSLY FILED
---------------------------
AS EXHIBIT
NUMBER FILE NO. NO. DESCRIPTION
- ---------- ------------ ------------- ------------------------------------------------------------------------
4-D-3 33-32499 4-D-6 -- Thirty-First Supplemental Indenture dated as of February 1, 1973.
<C> <C> <C> <S>
4-D-4 33-32499 4-D-7 -- Thirty-Second Supplemental Indenture dated as of January 18, 1974.
4-D-5 2-66914 2-L-13 -- Thirty-Ninth Supplemental Indenture dated as of October 15, 1979.
4-D-6 33-46070 4-D-11 -- Forty-Second Supplemental Indenture dated as of December 1, 1990.
4-D-7 33-46070 4-D-12 -- Forty-Third Supplemental Indenture dated as of February 1, 1991.
4-D-8 33-46070 4-D-13 -- Forty-Fourth Supplemental Indenture dated as of September 1, 1991.
4-D-9 Form 8-K 4-D-15 -- Forty-Fifth Supplemental Indenture dated as of July 1, 1992.
dated
7/24/92
4-D-10 --Form of Supplemental Indenture for First Mortgage Bonds.
4-D-11 -- Indenture (For Unsecured Debt Securities) from the Company to First
Trust National Association, as Trustee.
5-A --Opinion and consent of Dorsey & Whitney LLP.
12-A --Calculation of Ratios of Earnings to Fixed Charges.
23-A-1 --Consent of Deloitte & Touche LLP.
23-A-2 --Consent of Dorsey & Whitney LLP (included in Exhibit 5-A).
24-A --Powers of Attorney.
25-A-1 -- Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of First Trust National Association, as
corporate Trustee under the First Mortgage Indenture.
25-A-2 -- Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-2 of James A. Ehrenberg, as individual Trustee
under the First Mortgage Indenture.
25-A-3 -- Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of First Trust National Association, as
Trustee under the Indenture (For Unsecured Debt Securities).
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(b) To reflect in the prospectus any facts or events arising after
the effective date of this 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
this Registration Statement. Notwithstanding the foregoing, any increase
or decrease in
II-2
<PAGE>
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act of 1933 if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(c) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to section 13 or section 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 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described above under Item 15,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
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 a
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.
II-3
<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 Fergus Falls, State of Minnesota, on August 30, 1996.
OTTER TAIL POWER COMPANY
By /s/_A. E. ANDERSON_________________
A. E. Anderson
Vice President, Finance and
Treasurer
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 30, 1996.
<TABLE>
<CAPTION>
SIGNATURE AND TITLE
- ----------------------------------------------------
<S> <C>
John C. MacFarlane
Chairman, President and Chief
Executive Officer
(principal executive officer)
and Director
A. E. Anderson
Vice President, Finance
and Treasurer
(principal financial officer) By /s/A. E. ANDERSON
Jeffrey J. Legge A. E. Anderson
Controller Pro Se and
(principal accounting officer) Attorney-in-Fact
Thomas M. Brown, Director
Dayle Dietz, Director
Dennis R. Emmen, Director
Maynard D. Helgaas, Director
Arvid R. Liebe, Director
Kenneth L. Nelson, Director
Nathan I. Partain, Director
Robert N. Spolum, Director
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
PREVIOUSLY FILED
---------------------------
AS EXHIBIT
NUMBER FILE NO. NO. DESCRIPTION PAGE
- ---------- ------------ ------------- ----------------------------------------------------------------- -----
<C> <C> <C> <S> <C>
1-A -- Form of Underwriting Agreement for First Mortgage Bonds.......
1-B --Form of Underwriting Agreement for Debentures..................
4-D-1 2-14209 2-B-1 -- Twenty-First Supplemental Indenture from the Company to First
Trust Company of Saint Paul and Russell M. Collins, as
Trustees, dated as of July 1, 1958.............................
4-D-2 2-14209 2-B-2 -- Twenty-Second Supplemental Indenture dated as of July 15,
1958...........................................................
4-D-3 33-32499 4-D-6 -- Thirty-First Supplemental Indenture dated as of February 1,
1973...........................................................
4-D-4 33-32499 4-D-7 -- Thirty-Second Supplemental Indenture dated as of January 18,
1974...........................................................
4-D-5 2-66914 2-L-13 -- Thirty-Ninth Supplemental Indenture dated as of October 15,
1979...........................................................
4-D-6 33-46070 4-D-11 -- Forty-Second Supplemental Indenture dated as of December 1,
1990...........................................................
4-D-7 33-46070 4-D-12 -- Forty-Third Supplemental Indenture dated as of February 1,
1991...........................................................
4-D-8 33-46070 4-D-13 -- Forty-Fourth Supplemental Indenture dated as of September 1,
1991...........................................................
4-D-9 Form 8-K 4-D-15 -- Forty-Fifth Supplemental Indenture dated as of July 1, 1992...
dated
7/24/92
4-D-10 -- Form of Supplemental Indenture for First Mortgage Bonds.......
4-D-11 -- Indenture (For Unsecured Debt Securities) from the Company to
First Trust National Association, as Trustee...................
5-A --Opinion and consent of Dorsey & Whitney LLP....................
12-A --Calculation of Ratios of Earnings to Fixed Charges.............
23-A-1 --Consent of Deloitte & Touche LLP...............................
23-A-2 -- Consent of Dorsey & Whitney LLP (included in Exhibit 5-A).....
24-A --Powers of Attorney.............................................
25-A-1 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of First Trust National
Association, as corporate Trustee under the First Mortgage
Indenture......................................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PREVIOUSLY FILED
---------------------------
AS EXHIBIT
NUMBER FILE NO. NO. DESCRIPTION PAGE
- ---------- ------------ ------------- ----------------------------------------------------------------- -----
25-A-2 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-2 of James A. Ehrenberg, as
individual Trustee under the First Mortgage Indenture..........
<C> <C> <C> <S> <C>
25-A-3 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of First Trust National
Association, as Trustee under the Indenture (For Unsecured Debt
Securities)....................................................
</TABLE>
<PAGE>
EXHIBIT 1-A
OTTER TAIL POWER COMPANY
FIRST MORTGAGE BONDS
UNDERWRITING AGREEMENT
[Date}
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Otter Tail Power Company, a Minnesota corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its First Mortgage Bonds identified
in Schedule I hereto (the "Securities"), to be issued under the Company's
Indenture of Mortgage dated as of July 1, 1936, as supplemented by all
supplemental indentures executed prior to the date hereof (collectively, the
"Indenture"), between the Company and First Trust National Association (formerly
named First Trust Company of Saint Paul and First Trust Company, Inc.) and
Louis S. Headley (James A. Ehrenberg, successor Individual Trustee), as trustees
(the "Trustees"), including the Supplemental Indenture creating the Securities
(the "Supplemental Indenture"). If the firm or firms listed in Schedule II
hereto include only the firm or firms named as Representatives in Schedule I
hereto, then the terms "Underwriters" and "Representatives," as used herein,
shall each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of
$50,000,000 aggregate initial offering price of the Company's debt
securities, including the Securities. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(x) under the Act and complies in all other material respects
with such Rule. The Company proposes to file with the Commission pursuant
to Rule 424 under the Act a supplement to the form of prospectus included
in such registration statement relating to the Securities and the plan of
distribution thereof and has previously advised the Representatives of all
further
<PAGE>
information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits
thereto, as amended at the time it was declared effective by the
Commission, is hereinafter called the "Registration Statement"; such
prospectus, in the form in which it appears in the Registration Statement,
is hereinafter called the "Basic Prospectus"; and the Basic Prospectus as
supplemented by such prospectus supplement, in the form in which the same
shall be filed (or transmitted for filing) with the Commission pursuant to
such Rule 424, is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been filed
(or transmitted for filing) with the Commission pursuant to such Rule 424
is hereinafter called a "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, so incorporated by reference.
(b) As of the time when the Registration Statement became effective,
as of the date hereof, as of the time when any post-effective amendment to
the Registration Statement becomes effective (if such effectiveness is
prior to the termination of the offering of the Securities), as of the time
when the Company's latest Annual Report on Form 10-K is filed with the
Commission (if such filing is after January 1, 1997 and prior to the
termination of the offering of the Securities), as of the time when the
Final Prospectus is first filed (or transmitted for filing) pursuant to
Rule 424 under the Act, as of the time when any supplement to the Final
Prospectus is filed (or transmitted for filing) with the Commission (if
such filing is prior to the termination of the offering of the Securities)
and at the Closing Date (as hereinafter defined):
(i) the Registration Statement, as amended as of any such
time, the Final Prospectus, as amended or supplemented as of any
such time, and the Indenture complied or will comply in all
material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the respective rules thereunder;
and
(ii) neither the Registration Statement, as amended as of any
such time, nor the Final Prospectus, as amended or supplemented as of
any such time, contained or will contain any untrue statement of a
material fact or omitted or will omit to state any material fact
required to be stated therein or necessary to make
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<PAGE>
the statements therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statements of
Eligibility (Forms T-1 and T-2) under the Trust Indenture Act of the
Trustees or the trustee under the Company's Indenture (For Unsecured
Debt Securities) dated as of _________________, 1996 (the "Debenture
Indenture") or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus, or any amendment
thereto or supplement thereof, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the
Final Prospectus.
(c) The Public Utilities Commission of Minnesota (the "Minnesota
Commission") has entered one or more orders authorizing, among other
things, (i) the Company's proposed capital structure after the issuance and
sale by the Company of the Securities and other securities therein
mentioned and (ii) the issue and sale of the Securities by the Company on
terms and conditions not inconsistent with the terms and conditions set
forth in or contemplated by this Agreement or any Delayed Delivery Contract
(as hereinafter defined) as hereinafter provided; and no further approval,
authorization, consent, certificate or order of any state or federal
commission or regulatory authority is necessary with respect to the
execution and delivery of the Indenture or the issue and sale of the
Securities as contemplated herein and in any Delayed Delivery Contract
(except that the sale of the Securities in certain jurisdictions may be
subject to the securities or "Blue Sky" laws thereof). A true and complete
copy of such order or orders of the Minnesota Commission has been delivered
to the Representatives.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that if Schedule I hereto
provides for the sale of the Securities pursuant to delayed delivery
arrangements, the respective principal amounts of the Securities to be purchased
by each of the Underwriters shall be as set forth in Schedule II hereto, less
the respective principal amounts of Contract Securities (as hereinafter defined)
determined as provided below. Securities to be purchased by the Underwriters
are hereinafter called the "Underwriters' Securities" and Securities to be
purchased pursuant to Delayed Delivery Contracts are hereinafter called
"Contract Securities." At the time of the purchase of the Underwriters'
Securities, the Company will pay to the Representatives, for the respective
accounts of the Underwriters, the aggregate underwriting commission in respect
thereof set forth in Schedule I hereto by accepting from the Underwriters in
payment for the Underwriters' Securities certified or official bank check or
checks payable to the order of the Company in the funds set forth in Schedule I
hereto in an amount equal to the aggregate initial price to public of the
Underwriters' Securities set forth in Schedule I hereto, less
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such underwriting commission, unless the Representatives and the Company shall
agree on another manner of payment.
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase the Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Schedule III hereto, but with such changes therein as the Company may
authorize or approve. If so provided, the Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the respective accounts of the Underwriters, on the Closing
Date, by certified or official bank check payable in the funds set forth in
Schedule I hereto, the delayed delivery fee set forth in Schedule I hereto with
respect to the Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be solicited from and made only with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
previously approved by the Company, but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto and the aggregate principal
amount of the Contract Securities may not exceed the maximum aggregate principal
amount set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts.
The respective principal amounts of the Securities to be purchased by
each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the aggregate principal amount of
the Contract Securities as the principal amount of the Securities so set forth
opposite the name of such Underwriter bears to the aggregate principal amount of
the Securities set forth in Schedule II hereto, except to the extent that the
Representatives shall determine that such reduction shall be otherwise than in
such proportion and shall so advise the Company in writing; PROVIDED, HOWEVER,
that the aggregate principal amount of the Securities to be purchased by all
Underwriters pursuant to this Agreement shall be the aggregate principal amount
of the Securities set forth in Schedule II hereto, less the aggregate principal
amount of the Contract Securities.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwriters' Securities shall be made in the funds, at the office, on the date
and at the time specified in Schedule I hereto, which date and time may be
accelerated or postponed by agreement between the Representatives and the
Company or as provided in Section 10 (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to the Representatives,
for the respective accounts of the Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price therefor to or
upon the order of the Company by certified or official bank check or checks
payable in such funds. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Closing Date.
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The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale as set forth in the Final
Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file with the Commission any amendment to the Registration
Statement or any supplement (including the Final Prospectus) of the Basic
Prospectus unless the Company shall have furnished the Representatives a
copy for their review prior to filing. Subject to the preceding sentence,
the Company will cause the Final Prospectus to be filed (or transmitted for
filing) with the Commission pursuant to Rule 424 under the Act. The
Company will promptly advise the Representatives (i) when the Final
Prospectus shall have been filed (or transmitted for filing) with the
Commission pursuant to such Rule 424, (ii) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment to or supplement of the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution or threatening of any
proceeding for such purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or of the institution or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event has occurred as a result
of which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Registration Statement or the Final Prospectus to
comply with the Act, the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance.
(c) As soon as practicable, but not later than 45 days after the end
of the 12-month period beginning at the end of the current fiscal quarter
of the Company, the Company will make generally available to its security
holders and to the Representatives an earnings statement (which need not be
audited) of the Company and its consolidated subsidiaries which will
satisfy the provisions of Section 11(a) of the Act.
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(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, (i) one signed copy of the registration
statement as originally filed (including exhibits thereto other than
exhibits incorporated by reference therein) and of each amendment thereto
which shall become effective on or prior to the Closing Date, (ii) one
conformed copy for each Underwriter of the registration statement as
originally filed (including exhibits thereto other than exhibits
incorporated by reference therein) and of each amendment thereto which
shall become effective on or prior to the Closing Date and (iii) so long as
delivery of a prospectus relating to the Securities by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereto and
supplements thereof as the Representatives may reasonably request. The
Company will pay the expenses of printing or otherwise producing all
documents relating to the offering of the Securities and all other costs
and taxes incident to the issuance and original delivery of the Securities.
(e) The Company will cooperate with the Underwriters, and will
reimburse the Underwriters for their expenses (including the reasonable
fees and disbursements of Sidley & Austin), in arranging for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably designate, will use its
best efforts to maintain such qualifications in effect so long as required
for the distribution of the Securities and will reimburse the Underwriters
for their expenses (including the reasonable fees and disbursements of
Sidley & Austin) in arranging for the determination of the legality of the
Securities for purchase by institutional investors; PROVIDED, HOWEVER, that
the Company shall not be obligated hereby to execute or file any general
consent to service of process under the laws of any jurisdiction or to
qualify to do business as a foreign corporation in any jurisdiction.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, any debt securities covered
by the Registration Statement or any other registration statement filed by
the Company under the Act.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy in all material respects of the representations and warranties of
the Company contained herein as of the date hereof, as of the time of the
effectiveness of any amendment to the Registration Statement (including the
filing of any document incorporated by reference therein) filed after the date
hereof and prior to the Closing Date and as of the Closing Date, to the accuracy
in all material respects of the statements of the Company made in any
certificates delivered pursuant to the provisions hereof, to the performance in
all material respects by the Company of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time after the date hereof and prior to
the Closing Date, shall have been issued and no proceedings for such
purpose shall have been instituted or, to the best
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<PAGE>
knowledge of the Company, threatened; and the Final Prospectus shall have
been filed (or transmitted for filing) with the Commission pursuant to
Rule 424 under the Act not later than 5:00 p.m., Chicago time, on the
business day following the date hereof.
(b) The Supplemental Indenture shall have become, and the Indenture
shall be, qualified under the Trust Indenture Act.
(c) There shall be in full force and effect one or more orders of the
Minnesota Commission authorizing, among other things, (i) the Company's
proposed capital structure after the issuance and sale by the Company of
the Securities and other securities therein mentioned and (ii) the issue
and sale of the Securities by the Company on terms and conditions not
inconsistent with the terms and conditions set forth in or contemplated by
this Agreement and any Delayed Delivery Contract, and containing no
provisions unacceptable to the Representatives, it being agreed that the
order or orders of the Minnesota Commission heretofore issued as described
in paragraph (c) of Section 1 contain no such unacceptable provisions.
(d) The Company shall have furnished to the Representatives the
opinion, dated the Closing Date, of Dorsey & Whitney LLP, counsel for the
Company, to the effect that:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Minnesota and is duly qualified to transact business as a foreign
corporation and is in good standing in the States of North Dakota
and South Dakota;
(ii) the Company is a public utility as defined in the
statutes of the States of Minnesota, North Dakota and South
Dakota and is authorized by its Articles of Incorporation, as
amended, to carry on the business in which it is engaged, as set
forth in the Final Prospectus; the Company has the legal right to
function and operate as an electric utility in the States of
Minnesota, North Dakota and South Dakota; and the Company is
subject as to rates, issuance of securities, service and other
matters to the jurisdiction of certain authorities as and to the
extent stated in such Annual Report under the caption
"Business--General Regulation";
(iii) except for municipalities having an aggregate
population of less than 15,000, according to the 1990 census, the
Company has valid and subsisting franchises covering all
municipalities with more than 1,000 population, according to the
1990 census, which authorize the Company to carry on the
respective utility businesses in which it is engaged in the
municipalities covered by such franchises;
(iv) except as to property acquired subsequent to the
execution and delivery of the Supplemental Indenture, the Company
has good and
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<PAGE>
sufficient title to all property described or referred to in, and
purported to be conveyed by, the Indenture (except (A) such property
as may have been disposed of and released from the lien thereof in
accordance with the terms thereof and (B) one or more parcels of land
having an aggregate book value, exclusive of removable improvements,
of less than $1,000,000), subject only to the lien of the Indenture,
to exceptions and reservations specifically set forth therein and to
permitted encumbrances as therein defined (in rendering which opinion,
such counsel may rely on the opinions of local counsel and on a
certificate of the Company setting forth the properties owned by the
Company which are not described in the Indenture and the book value of
such properties exclusive of removable improvements thereon upon which
such counsel believes it may properly rely, provided it so states in
such opinion); the description in the Indenture of such property is
adequate to constitute the Indenture a lien thereon; the Indenture,
subject only to exceptions and reservations specifically set forth
therein and to permitted encumbrances as therein defined, constitutes
a valid, perfected and direct first mortgage lien on such property,
which includes substantially all of the fixed property of the Company,
and on the franchises and permits of the Company pertaining to the
operation of its property; all fixed property, and all franchises and
permits pertaining to the operation of its property, acquired by the
Company after the execution and delivery of the Supplemental Indenture
will, upon such acquisition, become subject to the lien of the
Indenture to the extent provided therein, subject, however, to
permitted encumbrances, to liens, defects and limitations, if any,
existing or placed thereon at the time of acquisition thereof by the
Company and to any rights or equities of others attaching under local
law; and the Indenture is enforceable in accordance with its terms for
the benefit of the holders of the Securities and other First Mortgage
Bonds outstanding thereunder from time to time, except as such
enforcement may be limited by (i) laws affecting certain of the
remedies provided by the Indenture which do not, in the opinion of
such counsel, materially interfere with the practical realization of
the benefits and the security provided by the Indenture and without
which remedies the Indenture contains adequate provisions for
realizing upon the benefits and the security intended to be provided
thereby, (ii) bankruptcy, insolvency or other similar laws affecting
the enforcement of creditors' rights generally or (iii) general
principles of equity;
(v) the Indenture is qualified under the Trust Indenture
Act;
(vi) the Indenture (including the Supplemental Indenture)
has been duly filed for recordation and otherwise filed, indexed
or cross-indexed, and any financing statements with respect
thereto required under the Uniform Commercial Code have been
filed, in such manner and in such
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places as are required by law in order to give constructive notice of,
establish, preserve and protect the lien of the Indenture on all
property of the Company of every kind described in and conveyed by the
Indenture;
(vii) the Indenture (including the Supplemental Indenture)
is in due and proper form, has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered and is a valid instrument legally binding
on the Company;
(viii) the Securities are in due and proper form; the issue
and sale of the Securities by the Company in accordance with the
terms of this Agreement and any Delayed Delivery Contracts have
been duly and validly authorized by the necessary corporate
action; the Securities, when duly executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in the case of
any Contract Securities, will constitute legal, valid and
binding obligations of the Company enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally or by general principles of equity,
and will be secured by the lien of and entitled to the benefits
provided by the Indenture (subject to the exception stated
above); and the Securities and the Indenture conform as to legal
matters with the statements concerning them made in the Final
Prospectus, and such statements accurately set forth the matters
respecting the Securities and the Indenture required to be set
forth in the Final Prospectus;
(ix) the order or orders of the Minnesota Commission
referred to in paragraph (c) of this Section 6 have been duly
entered and, to the best knowledge of such counsel, are still in
force and effect; and no further approval, authorization,
consent, certificate or order of any state or federal commission
or regulatory authority is necessary with respect to the
execution and delivery of the Indenture or the issue and sale of
the Securities as contemplated herein and in any Delayed Delivery
Contracts (except that the sale of the Securities in certain
jurisdictions may be subject to the securities or "Blue Sky" laws
thereof);
(x) the Registration Statement and any amendments thereto
filed under the Act (including the documents which upon filing by
the Company with the Commission will be incorporated by reference
in the Registration Statement) prior to the Closing Date have
become effective under the Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement, as so amended, has been issued and
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<PAGE>
no proceedings for such purpose have been instituted or threatened;
and the Registration Statement, the Final Prospectus and each
amendment thereto or supplement thereof, if any, as of their
respective effective or issue dates (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion), complied
as to form in all material respects with the applicable requirements
of the Act, the Exchange Act and the respective rules thereunder; and
although such counsel assumes no responsibility for the accuracy,
completeness or fairness of statements contained in the Registration
Statement, or any amendment thereto, or the Final Prospectus, or any
amendment thereto or supplement thereof, except as expressly stated in
such counsel's opinion pursuant to the requirements of this
paragraph (d), such counsel has no reason to believe that the
Registration Statement, at the date of this Agreement, or any
amendment thereto, at the time it became effective (other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion),
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Final Prospectus, or
any amendment thereto or supplement thereof, as of their respective
issue dates (other than the financial statements and other financial
and statistical information contained therein, as to which such
counsel need express no opinion), included any 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, in the
light of the circumstances under which they were made, not misleading;
(xi) this Agreement and any Delayed Delivery Contracts
have been duly authorized by all requisite corporate action,
executed and delivered by the Company;
(xii) neither the issue and sale of the Securities nor the
consummation of any of the other transactions herein contemplated,
including the fulfillment of the terms hereof or of any Delayed
Delivery Contracts, will conflict with, result in a breach of or
constitute a default under the Articles of Incorporation, as amended,
or By-laws of the Company or any indenture or other agreement or
instrument known to such counsel and to which the Company is a party
or by which the Company or any of its property is bound;
(xiii) to the best knowledge of such counsel, there is no
legal or governmental proceeding and no franchise, contract or
other document of a character required to be described in the
Registration Statement or the Final Prospectus, or to be filed as
an exhibit to the Registration Statement, which is not described
or filed as required;
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<PAGE>
(xiv) the statements contained in the Registration
Statement, the Final Prospectus and each amendment thereto or
supplement thereof, if any, which are expressed therein to have
been made on the authority of such counsel have been reviewed by
them and, as to matters of law and legal conclusions, are
correct; and
(xv) the Company has a duly authorized share capitalization
as set forth under the caption "Capitalization" in the
consolidated balance sheet of the Company at December 31,_____
included in the Company's Annual Report on Form 10-K for the year
ended December 31,_____and incorporated by reference in the
Final Prospectus or any amendment thereto or supplement thereof.
(e) The Company shall have furnished to the Representatives the
opinion, dated the Closing Date, of Jay D. Myster, Senior Vice President,
Governmental and Legal of the Company, to the effect that:
(i) except as disclosed in the Final Prospectus as then
amended or supplemented, there are no actions, suits,
investigations or proceedings at law or in equity or before or by
any court, public board or body pending or, to the best knowledge
of such counsel, threatened against the Company or any
subsidiary, wherein an unfavorable decision, ruling or finding
would have a material adverse effect on the transactions
contemplated by this Agreement, the Registration Statement and
the Final Prospectus or on the validity or enforceability against
the Company of this Agreement, the Indenture or the Securities;
(ii) to the best knowledge of such counsel, the
descriptions included in the Registration Statement, the Final
Prospectus and each amendment thereto or supplement thereof, if
any, as of their respective effective or issue dates, of
statutes, legal and other governmental proceedings and of
franchises, contracts and other documents are accurate and fairly
present the information required to be shown;
(iii) each of Minnesota Dakota Generating Company ("MDGC"),
Mid-States Development, Inc. ("MDI"), Quadrant Co. ("QC"),
Diagnostic Medical Systems, Inc. ("DMSI") and North Central
Utilities, Inc. ("NCUI") is a duly organized and validly existing
corporation in good standing under the laws of its jurisdiction
of incorporation, with full corporate power and authority to
carry on its business as now conducted; and
(iv) all of the issued and outstanding capital stock of
MDGC is validly issued, fully paid and non-assessable and (except
for directors' qualifying shares) is owned beneficially and of
record by the Company free
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and clear of all liens, pledges and encumbrances and all of the issued
and outstanding capital stock of each of MDI, QC and NCUI is validly
issued, fully paid and non-assessable and is owned beneficially and of
record by MDGC free and clear of all liens, pledges and encumbrances;
and all of the issued and outstanding capital stock of DMSI is validly
issued, fully paid and non-assessable and is owned beneficially and of
record by MDI free and clear of all liens, pledges and encumbrances.
(f) The Representatives shall have received from Sidley & Austin,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issue and sale of the Securities, the Indenture,
any Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus, each amendment thereto or supplement thereof, if any, and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters. For purposes of their opinion, Sidley & Austin shall be entitled
to rely upon the opinion of Dorsey & Whitney LLP, counsel for the Company,
as to matters governed by Minnesota law, and shall be entitled to rely upon
such opinion as to the organization and existence of the Company.
(g) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of the Company, signed by its
President or any Vice President and by its principal financial or
accounting officer, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus and
each amendment thereto or supplement thereof, if any, and this Agreement
and that:
(i) the representations and warranties of the Company
contained in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date, and the Company has in all material
respects complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date;
(ii) the order or orders of the Minnesota Commission
referred to in paragraph (c) of this Section 6 have been duly
entered and are still in full force and effect;
(iii) no stop order suspending the effectiveness of the
Registration Statement, as amended prior to the Closing Date, has
been issued and no proceedings for such purpose have been
instituted or, to the best knowledge of the Company, threatened;
and
(iv) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material
adverse change in the condition (financial or other), earnings,
business or properties of the Com-
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pany and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, and no dividends
(other than regular quarterly dividends on the Company's Cumulative
Preferred Shares and Common Shares) have been declared or paid on, or
other distribution declared or made on, the outstanding shares of the
Company, except in each case as set forth or contemplated in the Final
Prospectus.
(h) At the Closing Date, Deloitte & Touche LLP shall have furnished
to the Representatives a letter, dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated by reference in the Registration Statement and the
Final Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act and the published rules and regulations
thereunder;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company,
the carrying out of certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter, a reading of the minutes of the meetings of the
shareholders and the Board of Directors (and any committees
thereof) of the Company and its subsidiaries and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date
of the most recent audited consolidated financial statements
included or incorporated by reference in the Final Prospectus,
nothing came to their attention which caused them to believe
that:
(A) any unaudited consolidated financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act
and the published rules and regulations thereunder; or
such unaudited consolidated financial statements are
not prepared on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus;
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(B) with respect to the interim period subsequent
to the date of the most recent consolidated financial
statements (other than any capsule information),
audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final
Prospectus: there were any changes at a specified date
(not more than five business days prior to the date of
such letter) in the long-term debt (other than any
purchases of First Mortgage Bonds for sinking fund
purposes) or capital stock (other than any purchases
pursuant to the Automatic Dividend Reinvestment and
Share Purchase Plan or of Cumulative Preferred Shares
for sinking fund purposes) of the Company, or any
decrease in the net assets of the Company, as compared
with the amounts shown on the most recent consolidated
balance sheet included or incorporated by reference in
the Registration Statement and the Final Prospectus; or
for the period from the date of such most recent
consolidated financial statements to such specified
date, there were any decreases, as compared with the
corresponding period in the preceding year, in
consolidated operating revenues, consolidated operating
income, consolidated net income or net income per
average common share outstanding of the Company; except
in all instances for changes or decreases which the
Registration Statement and the Final Prospectus
disclose have occurred or may occur or which are set
forth in such letter; and
(C) they have performed certain other specified
procedures as a result of which they have determined
that certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company) set forth in
the Registration Statement and the Final Prospectus,
including Exhibit 12-A to the Registration Statement,
agrees with the accounting records of the Company,
excluding any questions of legal interpretation.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease of the character referred to in
paragraph (h)(ii)(B) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company, the effect of which, in any case referred to in
clause (i) or (ii), is, in the reasonable judgment of the Representatives,
so material and adverse as to make it
- 14 -
<PAGE>
impractical or inadvisable to proceed with the offering or the delivery of
the Securities as contemplated by the Registration Statement and the Final
Prospectus.
(j) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by Moody's Investors Service, Inc., Standard & Poor's Ratings
Group or Fitch Investors Services.
(k) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or any time prior
to, the Closing Date by the Representatives. Notice of such cancellation shall
be given to the Company in writing or by telephone or telegraph, promptly
confirmed in writing.
7. CONDITIONS TO THE OBLIGATION OF THE COMPANY.
The obligation of the Company to deliver the Securities shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time after the date hereof and prior to
the Closing Date, shall have been issued and no proceedings for such
purpose shall have been instituted or, to the best knowledge of the
Company, threatened.
(b) The Supplemental Indenture shall have become, and the Indenture
shall be, qualified under the Trust Indenture Act.
(c) There shall be in full force and effect one or more orders of the
Minnesota Commission authorizing, among other things, (i) the Company's
proposed capital structure after the issuance and sale by the Company of
the Securities and other securities therein mentioned and (ii) the issue
and sale of the Securities by the Company on terms and conditions not
inconsistent with the terms and conditions set forth in or contemplated by
this Agreement or any Delayed Delivery Contract, and containing no
provisions unacceptable to the Company, it being agreed that the order or
orders of the Minnesota Commission heretofore issued as described in
paragraph (c) of Section 1 contain no such unacceptable provisions.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
this Agreement and the obligation of the Company to deliver the Securities
hereunder may be canceled at, or at any time prior to, the
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<PAGE>
Closing Date by the Company. Notice of such cancellation shall be given to the
Representatives in writing or by telephone or telegraph, promptly confirmed in
writing.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Underwriters' Securities as provided herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied, because any condition to the obligation of the Company set forth in
Section 7 is not satisfied, because of any termination pursuant to Section 11 or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally, upon demand, for all out-of-pocket expenses
(including the reasonable fees and disbursements of Sidley & Austin) which shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Securities.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which it or any
of them may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions, suits or proceedings
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement as originally filed, or in any amendment thereto, covering the
registration of the Securities, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereto or
supplement thereof, 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, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified person for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action, suit or proceeding; PROVIDED, HOWEVER, that (i) the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof, or arises out
of or is based upon the Statements of Eligibility (Forms T-1 and T-2) under the
Trust Indenture Act of the Trustees or the trustee under the Debenture
Indenture, and (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented), excluding documents
incorporated therein by reference, at or prior to the confirmation of the sale
of such Securities to such person in any case where such delivery is required by
the Act and the untrue statement or the omission of a material fact contained in
the Basic Prospectus or any Preliminary Final Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as amended or supplemented), provided
that the Company shall have deliv-
- 16 -
<PAGE>
ered the Final Prospectus (or the Final Prospectus as amended or supplemented)
in a timely manner and in sufficient quantities, as provided in Section 5(d), to
permit such delivery by the Underwriters. This agreement of indemnity will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person who controls the Company within the
meaning of the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for use in connection with the
preparation of the documents referred to in such foregoing indemnity. This
agreement of indemnity will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by any person indemnified under this
Section 9 of notice of the commencement of any action, suit or proceeding, such
person will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 9, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify such indemnifying party will
not relieve it from any liability which it may have to any indemnified person
otherwise than under this Section 9. In case any such action, suit or
proceeding is brought against any person indemnified under this Section 9 and
such indemnified person notifies an indemnifying party of the commencement
thereof, such indemnifying party will be entitled to participate therein and, to
the extent that it may elect by written notice delivered to such indemnified
person promptly after receiving the aforesaid notice from such indemnified
person, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified person; PROVIDED, HOWEVER, that if the defendants in any such
action, suit or proceeding include both such indemnified person and such
indemnifying party and such indemnified person shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
persons which are different from or in addition to the defenses available to
such indemnifying party, the indemnified person or persons shall have the right
to select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action, suit or proceeding on behalf of such
indemnified person or persons. Upon receipt of notice from such indemnifying
party to such indemnified person of the former's election so to assume the
defense of such action, suit or proceeding and approval by such indemnified
person of counsel, such indemnifying party will not be liable to such
indemnified person under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified person in connection with the defense
thereof unless (i) such indemnified person shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that such
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of indemnification
under paragraph (a) of this Section 9), (ii) such indemnifying party shall not
have employed counsel reasonably satisfactory to such indemnified person to
represent such indemnified person within a reasonable time after notice of
commencement of such action, suit or proceeding or (iii) such indemnifying party
shall have authorized the employment of counsel for such indemnified person at
the expense of such indemnifying party;
- 17 -
<PAGE>
PROVIDED, HOWEVER, that if clause (i) or (iii) above is applicable, the
liability of such indemnifying party shall be only in respect of the counsel
specifically referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 9 shall be due in accordance with its terms but for any reason shall be
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending against the
same) to which the Company and one or more of the Underwriters may be subject in
such proportion that the Underwriters shall be responsible for the portion
represented by the percentage which the aggregate underwriting commission shall
bear to the aggregate initial price to public specified in Schedule I hereto of
the Underwriters' Securities and the Company shall be responsible for the
balance; PROVIDED, HOWEVER, that (i) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
commission applicable to the Securities purchased by such Underwriter hereunder
and (ii) 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
is not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each person who controls an Underwriter within the meaning of the
Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of the
Act or the Exchange Act, each director of the Company and each officer of the
Company who shall have signed the Registration Statement shall have the same
rights to contribution as the Company, subject in each case to clause (ii) of
the preceding sentence. Any person entitled to contribution shall, promptly
after receipt of notice of the commencement of any action, suit or proceeding
against such person in respect of which a claim for contribution may be made
against a party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission so to notify such
party or parties shall not relieve such party or parties from any other
obligation it or they may have otherwise than under this paragraph (d).
10. DEFAULT BY AN UNDERWRITER. If one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated, severally, to purchase and pay for
(in the respective proportions which the principal amount of the Securities set
forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of the Securities set forth opposite the names of all
the nondefaulting Underwriters) the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the
event that the aggregate principal amount of the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of the Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities; and if the
nondefaulting Underwriters shall not purchase all the Securities or if other
arrangements satisfactory to the Representatives and the Company for the
purchase of all
- 18 -
<PAGE>
the Securities shall not be made within 48 hours after such default, this
Agreement will terminate without any liability on the part of any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as
described in this Section 10 under circumstances where this Agreement shall not
be terminated, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives and the Company shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus, or in any other documents or arrangements, may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
11. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by written notice given to the
Company prior to delivery of and payment for the Underwriters' Securities, if
prior to such time (i) trading in the Company's Common Shares shall have been
suspended by the Commission or the National Association of Securities Dealers,
Inc. or trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared by Federal,
New York State or Minnesota authorities or (iii) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Representatives, impracticable to market
the Securities.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, of the Representatives and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, any Representative,
the Company or any of the directors, officers or controlling persons referred to
in Section 9, and will survive delivery of and payment for the Securities. The
provisions of Sections 8 and 9 shall survive the termination or cancellation of
this Agreement.
13. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 215 South Cascade Street, Box 496, Fergus
Falls, Minnesota 56538-0496, Attention: Vice President, Finance.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons, directors and officers referred to in Section 9, and no
other person will have any right or obligation hereunder; and no other person
(including a purchaser, as such, from any Underwriter of the Securities) shall
acquire or have any rights under or by virtue of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when
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<PAGE>
so executed and delivered, shall be deemed to be an original; and all of which
counterparts shall, taken together, constitute one and the same Agreement.
16. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of Minnesota.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
OTTER TAIL POWER COMPANY
By _____________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: _______________________________________________
For themselves and the other several Underwriters,
if any, named in Schedule II to the
foregoing Agreement.
- 20 -
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 333-
Representatives of the Underwriters:
Address of Representatives:
Title, Purchase Price and Description of the Securities:
Title: First Mortgage Bonds,___% Series of____
Principal amount:
Purchase price: ____%, plus accrued interest, if any, from_______
Funds for payment:
Underwriting commission (including aggregate dollar
amount):
Initial price to public:____%, plus accrued interest, if any, from____
Maturity:
Interest payment dates:
Sinking fund provisions:
Optional redemption provisions:
Other provisions:
Closing Date, Time and Location:
Delayed Delivery Arrangements:
<PAGE>
SCHEDULE II
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES TO BE PURCHASED
- ----------- --------------------------
<PAGE>
SCHEDULE III
DELAYED DELIVERY CONTRACT
_______________, 19__
Otter Tail Power Company
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
Dear Sirs:
The undersigned hereby agrees to purchase from Otter Tail Power
Company (the "Company"), and the Company agrees to sell to the undersigned, on
_______________, 19__ (the "Delivery Date"), $____________ principal amount of
the Company's First Mortgage Bonds, _____% Series of _____ (the "Securities")
offered by the Company's Final Prospectus dated _______________, 19__ (as
amended or supplemented), receipt of a copy of which is hereby acknowledged, at
a purchase price of _____% of the principal amount thereof, plus accrued
interest, if any, thereon from _______________, 19__, to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
hereunder shall be made on or before 11:00 a.m., Minneapolis time, on the
Delivery Date to or upon the order of the Company in ____________________ funds
at the office of First Trust National Association, First Trust Center, St. Paul,
Minnesota 55101, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of the Securities to be
purchased by the undersigned hereunder.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date, and the obligation of the Company to
sell and deliver the Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the
failure thereof) that (1) the purchase of the Securities to be made by the
undersigned hereunder, which purchase the undersigned represents is not
prohibited on the date hereof, 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 the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such principal amount of the Securities as is
to be sold to them pursuant to the Underwriting Agreement referred to in the
Final Prospectus mentioned above. Promptly after completion of such 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 opinions of
counsel for the Company delivered to the Underwriters in connection therewith.
The obligation of the undersigned to take delivery of and make payment for the
Securities hereunder, and the obligation of the Company to cause the Securities
to be sold and delivered, shall not be affected by the failure of any purchaser
to take delivery of and make payment for the Company's
<PAGE>
Otter Tail Power Company
July__, 19__
Page 2
First Mortgage Bonds, _____% Series of _____, pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This contract will become a binding
agreement between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of Minnesota.
Very truly yours,
___________________________________
(Name of Purchaser)
By_________________________________
(Signature and Title of Officer)
___________________________________
___________________________________
(Address)
Accepted:
OTTER TAIL POWER COMPANY
By____________________________________
(Authorized Signature)
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<PAGE>
EXHIBIT 1-B
OTTER TAIL POWER COMPANY
DEBENTURES
UNDERWRITING AGREEMENT
[Date]
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Otter Tail Power Company, a Minnesota corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the Company's Indenture
(For Unsecured Debt Securities) dated as of ___________, 1996 (1) (the
"Indenture"), between the Company and _________________, as trustee (the
"Trustee").(2) If the firm or firms listed in Schedule II hereto include only
the firm or firms named as Representatives in Schedule I hereto, then the terms
"Underwriters" and "Representatives," as used herein, shall each be deemed to
refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of
$50,000,000 aggregate initial offering price of the Company's debt
securities, including the Securities. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(x) under the Act and complies in all other material respects
with such Rule. The Company proposes to file with the Commission pursuant
to Rule 424 under the Act a supplement to the form of
- -------------------------------
(1) If previously supplemented, add: "as supplemented by all supplemental
indentures executed prior to the date hereof".
(2) If the Securities are created by Supplemental Indenture, an appropriate
reference would be added here and in Sections 6(b), 6(d)(v), 6(d)(vii) and 7(b).
<PAGE>
prospectus included in such registration statement relating to the
Securities and the plan of distribution thereof and has previously
advised the Representatives of all further information (financial and
other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at
the time it was declared effective by the Commission, is hereinafter
called the "Registration Statement"; such prospectus, in the form in
which it appears in the Registration Statement, is hereinafter called
the "Basic Prospectus"; and the Basic Prospectus as supplemented by
such prospectus supplement, in the form in which the same shall be
filed (or transmitted for filing) with the Commission pursuant to such
Rule 424, is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been
filed (or transmitted for filing) with the Commission pursuant to such
Rule 424 is hereinafter called a "Preliminary Final Prospectus." Any
reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
or before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, so
incorporated by reference.
(b) As of the time when the Registration Statement became effective,
as of the date hereof, as of the time when any post-effective amendment to
the Registration Statement becomes effective (if such effectiveness is
prior to the termination of the offering of the Securities), as of the time
when the Company's latest Annual Report on Form 10-K is filed with the
Commission (if such filing is after January 1, 1997 and prior to the
termination of the offering of the Securities), as of the time when the
Final Prospectus is first filed (or transmitted for filing) pursuant to
Rule 424 under the Act, as of the time when any supplement to the Final
Prospectus is filed (or transmitted for filing) with the Commission (if
such filing is prior to the termination of the offering of the Securities)
and at the Closing Date (as hereinafter defined):
(i) the Registration Statement, as amended as of any such
time, the Final Prospectus, as amended or supplemented as of any
such time, and the Indenture complied or will comply in all
material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the respective rules thereunder;
and
(ii) neither the Registration Statement, as amended as of any
such time, nor the Final Prospectus, as amended or supplemented as of
any such time, contained or will contain any untrue statement of a
material fact or omitted or will
- 2 -
<PAGE>
omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statements
of Eligibility (Forms T-1 and T-2) under the Trust Indenture
Act of the Trustee or the trustees under the Company's
Indenture of Mortgage dated as of July 1, 1936, as
supplemented (the "Mortgage"), or (ii) the information
contained in or omitted from the Registration Statement or
the Final Prospectus, or any amendment thereto or supplement
thereof, in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use
in connection with the preparation of the Registration
Statement or the Final Prospectus.
(c) The Public Utilities Commission of Minnesota (the "Minnesota
Commission") has entered one or more orders authorizing, among other
things, (i) the Company's proposed capital structure after the issuance and
sale by the Company of the Securities and other securities therein
mentioned and (ii) the issue and sale of the Securities by the Company on
terms and conditions not inconsistent with the terms and conditions set
forth in or contemplated by this Agreement or any Delayed Delivery Contract
(as hereinafter defined) as hereinafter provided; and no further approval,
authorization, consent, certificate or order of any state or federal
commission or regulatory authority is necessary with respect to the
execution and delivery of the Indenture or the issue and sale of the
Securities as contemplated herein and in any Delayed Delivery Contract
(except that the sale of the Securities in certain jurisdictions may be
subject to the securities or "Blue Sky" laws thereof). A true and complete
copy of such order or orders of the Minnesota Commission has been delivered
to the Representatives.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that if Schedule I hereto
provides for the sale of the Securities pursuant to delayed delivery
arrangements, the respective principal amounts of the Securities to be purchased
by each of the Underwriters shall be as set forth in Schedule II hereto, less
the respective principal amounts of Contract Securities (as hereinafter defined)
determined as provided below. Securities to be purchased by the Underwriters
are hereinafter called the "Underwriters' Securities" and Securities to be
purchased pursuant to Delayed Delivery Contracts are hereinafter called
"Contract Securities." At the time of the purchase of the Underwriters'
Securities, the Company will pay to the Representatives, for the respective
accounts of the Underwriters, the aggregate underwriting commission in respect
thereof set forth in Schedule I hereto by accepting from the Underwriters in
payment for the Underwriters' Securities certified or official bank check or
checks payable to the order of the Company in the funds set forth in Schedule I
hereto in an amount equal to the aggregate initial price to public of the
Underwriters' Securities set forth in Schedule I hereto, less
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such underwriting commission, unless the Representatives and the Company shall
agree on another manner of payment.
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase the Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Schedule III hereto, but with such changes therein as the Company may
authorize or approve. If so provided, the Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the respective accounts of the Underwriters, on the Closing
Date, by certified or official bank check payable in the funds set forth in
Schedule I hereto, the delayed delivery fee set forth in Schedule I hereto with
respect to the Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be solicited from and made only with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
previously approved by the Company, but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto and the aggregate principal
amount of the Contract Securities may not exceed the maximum aggregate principal
amount set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts.
The respective principal amounts of the Securities to be purchased by
each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the aggregate principal amount of
the Contract Securities as the principal amount of the Securities so set forth
opposite the name of such Underwriter bears to the aggregate principal amount of
the Securities set forth in Schedule II hereto, except to the extent that the
Representatives shall determine that such reduction shall be otherwise than in
such proportion and shall so advise the Company in writing; PROVIDED, HOWEVER,
that the aggregate principal amount of the Securities to be purchased by all
Underwriters pursuant to this Agreement shall be the aggregate principal amount
of the Securities set forth in Schedule II hereto, less the aggregate principal
amount of the Contract Securities.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwriters' Securities shall be made in the funds, at the office, on the date
and at the time specified in Schedule I hereto, which date and time may be
accelerated or postponed by agreement between the Representatives and the
Company or as provided in Section 10 (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to the Representatives,
for the respective accounts of the Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price therefor to or
upon the order of the Company by certified or official bank check or checks
payable in such funds. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than two full business days in advance of the Closing Date.
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The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale as set forth in the Final
Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file with the Commission any amendment to the Registration
Statement or any supplement (including the Final Prospectus) of the Basic
Prospectus unless the Company shall have furnished the Representatives a
copy for their review prior to filing. Subject to the preceding sentence,
the Company will cause the Final Prospectus to be filed (or transmitted for
filing) with the Commission pursuant to Rule 424 under the Act. The
Company will promptly advise the Representatives (i) when the Final
Prospectus shall have been filed (or transmitted for filing) with the
Commission pursuant to such Rule 424, (ii) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment to or supplement of the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution or threatening of any
proceeding for such purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or of the institution or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event has occurred as a result
of which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Registration Statement or the Final Prospectus to
comply with the Act, the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance.
(c) As soon as practicable, but not later than 45 days after the end
of the 12-month period beginning at the end of the current fiscal quarter
of the Company, the Company will make generally available to its security
holders and to the Representatives an earnings statement (which need not be
audited) of the Company and its consolidated subsidiaries which will
satisfy the provisions of Section 11(a) of the Act.
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(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, (i) one signed copy of the registration
statement as originally filed (including exhibits thereto other than
exhibits incorporated by reference therein) and of each amendment thereto
which shall become effective on or prior to the Closing Date, (ii) one
conformed copy for each Underwriter of the registration statement as
originally filed (including exhibits thereto other than exhibits
incorporated by reference therein) and of each amendment thereto which
shall become effective on or prior to the Closing Date and (iii) so long as
delivery of a prospectus relating to the Securities by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereto and
supplements thereof as the Representatives may reasonably request. The
Company will pay the expenses of printing or otherwise producing all
documents relating to the offering of the Securities and all other costs
and taxes incident to the issuance and original delivery of the Securities.
(e) The Company will cooperate with the Underwriters, and will
reimburse the Underwriters for their expenses (including the reasonable
fees and disbursements of Sidley & Austin), in arranging for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably designate, will use its
best efforts to maintain such qualifications in effect so long as required
for the distribution of the Securities and will reimburse the Underwriters
for their expenses (including the reasonable fees and disbursements of
Sidley & Austin) in arranging for the determination of the legality of the
Securities for purchase by institutional investors; PROVIDED, HOWEVER, that
the Company shall not be obligated hereby to execute or file any general
consent to service of process under the laws of any jurisdiction or to
qualify to do business as a foreign corporation in any jurisdiction.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, any debt securities covered
by the Registration Statement or any other registration statement filed by
the Company under the Act.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy in all material respects of the representations and warranties of
the Company contained herein as of the date hereof, as of the time of the
effectiveness of any amendment to the Registration Statement (including the
filing of any document incorporated by reference therein) filed after the date
hereof and prior to the Closing Date and as of the Closing Date, to the accuracy
in all material respects of the statements of the Company made in any
certificates delivered pursuant to the provisions hereof, to the performance in
all material respects by the Company of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time after the date hereof and prior to
the Closing Date, shall have been issued and no proceedings for such
purpose shall have been instituted or, to the best knowledge of the
Company, threatened; and the Final Prospectus shall have been filed (or
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<PAGE>
transmitted for filing) with the Commission pursuant to Rule 424 under
the Act not later than 5:00 p.m., Chicago time, on the business day
following the date hereof.
(b) The Indenture shall be qualified under the Trust Indenture Act.
(c) There shall be in full force and effect one or more orders of the
Minnesota Commission authorizing, among other things, (i) the Company's
proposed capital structure after the issuance and sale by the Company of
the Securities and other securities therein mentioned and (ii) the issue
and sale of the Securities by the Company on terms and conditions not
inconsistent with the terms and conditions set forth in or contemplated by
this Agreement and any Delayed Delivery Contract, and containing no
provisions unacceptable to the Representatives, it being agreed that the
order or orders of the Minnesota Commission heretofore issued as described
in paragraph (c) of Section 1 contain no such unacceptable provisions.
(d) The Company shall have furnished to the Representatives the
opinion, dated the Closing Date, of Dorsey & Whitney LLP, counsel for the
Company, to the effect that:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Minnesota and is duly qualified to transact business as a foreign
corporation and is in good standing in the States of North Dakota
and South Dakota;
(ii) the Company is a public utility as defined in the
statutes of the States of Minnesota, North Dakota and South
Dakota and is authorized by its Articles of Incorporation, as
amended, to carry on the business in which it is engaged, as set
forth in the Final Prospectus; the Company has the legal right to
function and operate as an electric utility in the States of
Minnesota, North Dakota and South Dakota; and the Company is
subject as to rates, issuance of securities, service and other
matters to the jurisdiction of certain authorities as and to the
extent stated in such Annual Report under the caption
"Business--General Regulation";
(iii) except for ______ municipalities having an aggregate
population of less than 15,000, according to the 1990 census, the
Company has valid and subsisting franchises covering all
municipalities with more than 1,000 population, according to the
1990 census, which authorize the Company to carry on the
respective utility businesses in which it is engaged in the
municipalities covered by such franchises;
(iv) the Indenture is qualified under the Trust Indenture
Act;
(v) the Indenture is in due and proper form, has been duly
and validly authorized by all necessary corporate action, has
been duly and
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<PAGE>
validly executed and delivered and is a valid instrument
legally binding on the Company;
(vi) the form and terms of the Securities have been
established in conformity with the provisions of the Indenture,
and the Securities are in due and proper form; the issue and sale
of the Securities by the Company in accordance with the terms of
this Agreement and any Delayed Delivery Contracts have been duly
and validly authorized by the necessary corporate action; the
Securities, when duly executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, in the case
of the Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally or by general principles of equity,
and will be entitled to the benefits provided by the Indenture
(subject to the exception stated above); and the Securities and
the Indenture conform as to legal matters with the statements
concerning them made in the Final Prospectus, and such statements
accurately set forth the matters respecting the Securities and
the Indenture required to be set forth in the Final Prospectus;
(vii) the order or orders of the Minnesota Commission
referred to in paragraph (c) of this Section 6 have been duly
entered and, to the best knowledge of such counsel, are still in
force and effect; and no further approval, authorization,
consent, certificate or order of any state or federal commission
or regulatory authority is necessary with respect to the
execution and delivery of the Indenture or the issue and sale of
the Securities as contemplated herein and in any Delayed Delivery
Contracts (except that the sale of the Securities in certain
jurisdictions may be subject to the securities or "Blue Sky" laws
thereof);
(viii) the Registration Statement and any amendments
thereto filed under the Act (including the documents which upon
filing by the Company with the Commission will be incorporated by
reference in the Registration Statement) prior to the Closing
Date have become effective under the Act; to the best knowledge
of such counsel, no stop order suspending the effectiveness of
the Registration Statement, as so amended, has been issued and no
proceedings for such purpose have been instituted or threatened;
and the Registration Statement, the Final Prospectus and each
amendment thereto or supplement thereof, if any, as of their
respective effective or issue dates (other than the financial
statements and other financial and statistical information
contained therein, as to which such counsel need express no
opinion), complied as to form in all material respects with the
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<PAGE>
applicable requirements of the Act, the Exchange Act and the
respective rules thereunder; and although such counsel
assumes no responsibility for the accuracy, completeness or
fairness of statements contained in the Registration State-
ment, or any amendment thereto, or the Final Prospectus, or
any amendment thereto or supplement thereof, except as ex-
pressly stated in such counsel's opinion pursuant to the
requirements of this paragraph (d), such counsel has no
reason to believe that the Registration Statement, at the
date of this Agreement, or any amendment thereto, at the
time it became effective (other than the financial state-
ments and other financial and statistical information con-
tained therein, as to which such counsel need express no
opinion), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus, or any amendment
thereto or supplement thereof, as of their respective issue
dates (other than the financial statements and other finan-
cial and statistical information contained therein, as to
which such counsel need express no opinion), included any
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, in the light of the circum-
stances under which they were made, not misleading;
(ix) this Agreement and any Delayed Delivery Contracts have
been duly authorized by all requisite corporate action, executed
and delivered by the Company;
(x) neither the issue and sale of the Securities nor the
consummation of any of the other transactions herein contemplated,
including the fulfillment of the terms hereof or of any Delayed
Delivery Contracts, will conflict with, result in a breach of or
constitute a default under the Articles of Incorporation, as amended,
or By-laws of the Company or any indenture or other agreement or
instrument known to such counsel and to which the Company is a party
or by which the Company or any of its property is bound;
(xi) to the best knowledge of such counsel, there is no
legal or governmental proceeding and no franchise, contract or
other document of a character required to be described in the
Registration Statement or the Final Prospectus, or to be filed as
an exhibit to the Registration Statement, which is not described
or filed as required;
(xii) the statements contained in the Registration
Statement, the Final Prospectus and each amendment thereto or
supplement thereof, if any, which are expressed therein to have
been made on the authority of such counsel have been reviewed by
them and, as to matters of law and legal conclusions, are
correct; and
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<PAGE>
(xiii) the Company has a duly authorized share
capitalization as set forth under the caption "Capitalization" in
the consolidated balance sheet of the Company at December 31,
_____ included in the Company's Annual Report on Form 10-K for
the year ended December 31, ____ and incorporated by reference in
the Final Prospectus or any amendment thereto or supplement
thereof.
(e) The Company shall have furnished to the Representatives the
opinion, dated the Closing Date, of Jay D. Myster, Senior Vice President,
Governmental and Legal of the Company, to the effect that:
(i) except as disclosed in the Final Prospectus as then
amended or supplemented, there are no actions, suits,
investigations or proceedings at law or in equity or before or by
any court, public board or body pending or, to the best knowledge
of such counsel, threatened against the Company or any
subsidiary, wherein an unfavorable decision, ruling or finding
would have a material adverse effect on the transactions
contemplated by this Agreement, the Registration Statement and
the Final Prospectus or on the validity or enforceability against
the Company of this Agreement, the Indenture or the Securities;
(ii) to the best knowledge of such counsel, the
descriptions included in the Registration Statement, the Final
Prospectus and each amendment thereto or supplement thereof, if
any, as of their respective effective or issue dates, of
statutes, legal and other governmental proceedings and of
franchises, contracts and other documents are accurate and fairly
present the information required to be shown;
(iii) each of Minnesota Dakota Generating Company ("MDGC"),
Mid-States Development, Inc. ("MDI"), Quadrant Co. ("QC"),
Diagnostic Medical Systems, Inc. ("DMSI") and North Central
Utilities, Inc. ("NCUI") is a duly organized and validly existing
corporation in good standing under the laws of its jurisdiction
of incorporation, with full corporate power and authority to
carry on its business as now conducted; and
(iv) all of the issued and outstanding capital stock of
MDGC is validly issued, fully paid and non-assessable and (except
for directors' qualifying shares) is owned beneficially and of
record by the Company free and clear of all liens, pledges and
encumbrances; all of the issued and outstanding capital stock of
each of MDI, QC and NCUI is validly issued, fully paid and non-
assessable and is owned beneficially and of record by MDGC free
and clear of all liens, pledges and encumbrances; and all of the
issued and outstanding capital stock of DMSI is validly issued,
fully paid
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<PAGE>
and non-assessable and is owned beneficially and of record
by MDI free and clear of all liens, pledges and
encumbrances.
(f) The Representatives shall have received from Sidley & Austin,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issue and sale of the Securities, the Indenture,
any Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus, each amendment thereto or supplement thereof, if any, and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters. For purposes of their opinion, Sidley & Austin shall be entitled
to rely upon the opinion of Dorsey & Whitney LLP, counsel for the Company,
as to matters governed by Minnesota law, and shall be entitled to rely upon
such opinion as to the organization and existence of the Company.
(g) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of the Company, signed by its
President or any Vice President and by its principal financial or
accounting officer, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus and
each amendment thereto or supplement thereof, if any, and this Agreement
and that:
(i) the representations and warranties of the Company
contained in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date, and the Company has in all material
respects complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date;
(ii) the order or orders of the Minnesota Commission
referred to in paragraph (c) of this Section 6 have been duly
entered and are still in full force and effect;
(iii) no stop order suspending the effectiveness of the
Registration Statement, as amended prior to the Closing Date, has
been issued and no proceedings for such purpose have been
instituted or, to the best knowledge of the Company, threatened;
and
(iv) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material
adverse change in the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, and no dividends (other than regular
quarterly dividends on the Company's Cumulative Preferred Shares
and Common Shares) have been declared or paid on, or other
distribution declared or made on, the outstanding shares of the
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Company, except in each case as set forth or contemplated in
the Final Prospectus.
(h) At the Closing Date, Deloitte & Touche LLP shall have furnished
to the Representatives a letter, dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated by reference in the Registration Statement and the
Final Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act and the published rules and regulations
thereunder;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company,
the carrying out of certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter, a reading of the minutes of the meetings of the
shareholders and the Board of Directors (and any committees
thereof) of the Company and its subsidiaries and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date
of the most recent audited consolidated financial statements
included or incorporated by reference in the Final Prospectus,
nothing came to their attention which caused them to believe
that:
(A) any unaudited consolidated financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act
and the published rules and regulations thereunder; or
such unaudited consolidated financial statements are
not prepared on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(B) with respect to the interim period subsequent
to the date of the most recent consolidated financial
statements (other than any capsule information),
audited or unaudited, included or incorporated by
reference in the Registration
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<PAGE>
Statement and the Final Prospectus: there were
any changes at a specified date (not more than
five business days prior to the date of such
letter) in the long-term debt (other than any
purchases of First Mortgage Bonds for sinking fund
purposes) or capital stock (other than any
purchases pursuant to the Automatic Dividend
Reinvestment and Share Purchase Plan or of
Cumulative Preferred Shares for sinking fund
purposes) of the Company, or any decrease in the
net assets of the Company, as compared with the
amounts shown on the most recent consolidated
balance sheet included or incorporated by
reference in the Registration Statement and the
Final Prospectus; or for the period from the date
of such most recent consolidated financial
statements to such specified date, there were any
decreases, as compared with the corresponding
period in the preceding year, in consolidated
operating revenues, consolidated operating income,
consolidated net income or net income per average
common share outstanding of the Company; except in
all instances for changes or decreases which the
Registration Statement and the Final Prospectus
disclose have occurred or may occur or which are
set forth in such letter; and
(C) they have performed certain other specified
procedures as a result of which they have determined
that certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company) set forth in
the Registration Statement and the Final Prospectus,
including Exhibit 12-A to the Registration Statement,
agrees with the accounting records of the Company,
excluding any questions of legal interpretation.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease of the character referred to in
paragraph (h)(ii)(B) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company, the effect of which, in any case referred to in
clause (i) or (ii), is, in the reasonable judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed
with the offering or the delivery of the Securities as contemplated by the
Registration Statement and the Final Prospectus.
(j) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by Moody's Investors Service, Inc., Standard & Poor's Ratings
Group or Fitch Investors Services.
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<PAGE>
(k) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or any time prior
to, the Closing Date by the Representatives. Notice of such cancellation shall
be given to the Company in writing or by telephone or telegraph, promptly
confirmed in writing.
7. CONDITIONS TO THE OBLIGATION OF THE COMPANY. The obligation of
the Company to deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time after the date hereof and prior to
the Closing Date, shall have been issued and no proceedings for such
purpose shall have been instituted or, to the best knowledge of the
Company, threatened.
(b) The Indenture shall be qualified under the Trust Indenture Act.
(c) There shall be in full force and effect one or more orders of the
Minnesota Commission authorizing, among other things, (i) the Company's
proposed capital structure after the issuance and sale by the Company of
the Securities and other securities therein mentioned and (ii) the issue
and sale of the Securities by the Company on terms and conditions not
inconsistent with the terms and conditions set forth in or contemplated by
this Agreement or any Delayed Delivery Contract, and containing no
provisions unacceptable to the Company, it being agreed that the order or
orders of the Minnesota Commission heretofore issued as described in
paragraph (c) of Section 1 contain no such unacceptable provisions.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
this Agreement and the obligation of the Company to deliver the Securities
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Company. Notice of such cancellation shall be given to the Representatives in
writing or by telephone or telegraph, promptly confirmed in writing.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Underwriters' Securities as provided herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied, because any condition to the obligation of the Company set forth in
Section 7 is not satisfied, because of any termination pursuant to Section 11 or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally, upon demand, for all
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<PAGE>
out-of-pocket expenses (including the reasonable fees and disbursements of
Sidley & Austin) which shall have been reasonably incurred by them in connection
with the proposed purchase and sale of the Securities.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which it or any
of them may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions, suits or proceedings
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement as originally filed, or in any amendment thereto, covering the
registration of the Securities, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereto or
supplement thereof, 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, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified person for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action, suit or proceeding; PROVIDED, HOWEVER, that (i) the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof, or arises out
of or is based upon the Statements of Eligibility (Forms T-1 and T-2) under the
Trust Indenture Act of the Trustee or the trustees under the Mortgage, and
(ii) such indemnity with respect to the Basic Prospectus or any Preliminary
Final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or the omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented), provided that
the Company shall have delivered the Final Prospectus (or the Final Prospectus
as amended or supplemented) in a timely manner and in sufficient quantities, as
provided in Section 5(d), to permit such delivery by the Underwriters. This
agreement of indemnity will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person who controls the Company within the
meaning of the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for use in connection with the
preparation of the
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<PAGE>
documents referred to in such foregoing indemnity. This agreement of indemnity
will be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by any person indemnified under this
Section 9 of notice of the commencement of any action, suit or proceeding, such
person will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 9, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify such indemnifying party will
not relieve it from any liability which it may have to any indemnified person
otherwise than under this Section 9. In case any such action, suit or
proceeding is brought against any person indemnified under this Section 9 and
such indemnified person notifies an indemnifying party of the commencement
thereof, such indemnifying party will be entitled to participate therein and, to
the extent that it may elect by written notice delivered to such indemnified
person promptly after receiving the aforesaid notice from such indemnified
person, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified person; PROVIDED, HOWEVER, that if the defendants in any such
action, suit or proceeding include both such indemnified person and such
indemnifying party and such indemnified person shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
persons which are different from or in addition to the defenses available to
such indemnifying party, the indemnified person or persons shall have the right
to select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action, suit or proceeding on behalf of such
indemnified person or persons. Upon receipt of notice from such indemnifying
party to such indemnified person of the former's election so to assume the
defense of such action, suit or proceeding and approval by such indemnified
person of counsel, such indemnifying party will not be liable to such
indemnified person under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified person in connection with the defense
thereof unless (i) such indemnified person shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that such
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of indemnification
under paragraph (a) of this Section 9), (ii) such indemnifying party shall not
have employed counsel reasonably satisfactory to such indemnified person to
represent such indemnified person within a reasonable time after notice of
commencement of such action, suit or proceeding or (iii) such indemnifying party
shall have authorized the employment of counsel for such indemnified person at
the expense of such indemnifying party; PROVIDED, HOWEVER, that if clause (i) or
(iii) above is applicable, the liability of such indemnifying party shall be
only in respect of the counsel specifically referred to in such clause (i) or
(iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 9 shall be due in accordance with its terms but for any reason shall be
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending against the
same) to which the Company and one or more of the Underwriters may be subject in
such proportion that the Underwriters shall be responsible for the portion
represented by the percentage which the
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<PAGE>
aggregate underwriting commission shall bear to the aggregate initial price to
public specified in Schedule I hereto of the Underwriters' Securities and the
Company shall be responsible for the balance; PROVIDED, HOWEVER, that (i) in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting commission applicable to the Securities
purchased by such Underwriter hereunder and (ii) 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 is not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person who controls
an Underwriter within the meaning of the Act or the Exchange Act shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of the Act or the Exchange Act, each director of
the Company and each officer of the Company who shall have signed the
Registration Statement shall have the same rights to contribution as the
Company, subject in each case to clause (ii) of the preceding sentence. Any
person entitled to contribution shall, promptly after receipt of notice of the
commencement of any action, suit or proceeding against such person in respect of
which a claim for contribution may be made against a party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties shall not relieve
such party or parties from any other obligation it or they may have otherwise
than under this paragraph (d).
10. DEFAULT BY AN UNDERWRITER. If one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated, severally, to purchase and pay for
(in the respective proportions which the principal amount of the Securities set
forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of the Securities set forth opposite the names of all
the nondefaulting Underwriters) the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the
event that the aggregate principal amount of the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of the Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities; and if the
nondefaulting Underwriters shall not purchase all the Securities or if other
arrangements satisfactory to the Representatives and the Company for the
purchase of all the Securities shall not be made within 48 hours after such
default, this Agreement will terminate without any liability on the part of any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as described in this Section 10 under circumstances where this
Agreement shall not be terminated, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Representatives and the Company shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus, or in any other documents or arrangements, may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability to the Company and any nondefaulting Underwriter
for damages occasioned by its default hereunder.
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<PAGE>
11. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by written notice given to the
Company prior to delivery of and payment for the Underwriters' Securities, if
prior to such time (i) trading in the Company's Common Shares shall have been
suspended by the Commission or the National Association of Securities Dealers,
Inc. or trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared by Federal,
New York State or Minnesota authorities or (iii) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Representatives, impracticable to market
the Securities.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, of the Representatives and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, any Representative,
the Company or any of the directors, officers or controlling persons referred to
in Section 9, and will survive delivery of and payment for the Securities. The
provisions of Sections 8 and 9 shall survive the termination or cancellation of
this Agreement.
13. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 215 South Cascade Street, Box 496, Fergus
Falls, Minnesota 56538-0496, Attention: Vice President, Finance.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons, directors and officers referred to in Section 9, and no
other person will have any right or obligation hereunder; and no other person
(including a purchaser, as such, from any Underwriter of the Securities) shall
acquire or have any rights under or by virtue of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original; and all of which counterparts shall, taken together, constitute one
and the same Agreement.
16. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of Minnesota.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
OTTER TAIL POWER COMPANY
By ____________________________________
The foregoing Agreement is hereby confirmed
and accepted as of the date specified in
Schedule I hereto.
By: ___________________________________
For themselves and the other several Underwriters,
if any, named in Schedule II to the foregoing Agreement.
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<PAGE>
SCHEDULE I
Underwriting Agreement dated ____________________________
Registration Statement No. 333-__________________________
Representatives of the Underwriters:
Address of Representatives:
Title, Purchase Price and Description of the Securities:
Title:
Principal amount:
Purchase price:
Funds for payment:
Underwriting commission (including aggregate dollar
amount):
Initial price to public:
Maturity:
Interest payment dates:
Sinking fund provisions:
Optional redemption provisions:
Other provisions:
___________________________
Closing Date, Time and Location:
Delayed Delivery Arrangements:
<PAGE>
SCHEDULE II
PRINCIPAL AMOUNT OF
UNDERWRITERS SECURITIES TO BE PURCHASED
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<PAGE>
SCHEDULE III
DELAYED DELIVERY CONTRACT
_______________, 19__
Otter Tail Power Company
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
Dear Sirs:
The undersigned hereby agrees to purchase from Otter Tail Power
Company (the "Company"), and the Company agrees to sell to the undersigned, on
_______________, 19__ (the "Delivery Date"), $____________ principal amount of
the Company's [insert description of Debentures] (the "Securities") offered by
the Company's Final Prospectus dated _______________, 19__ (as amended or
supplemented), receipt of a copy of which is hereby acknowledged, at a purchase
price of _____% of the principal amount thereof, plus accrued interest, if any,
thereon from _______________, 19__, to the date of payment and delivery, and on
the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
hereunder shall be made on or before 11:00 a.m., Minneapolis time, on the
Delivery Date to or upon the order of the Company in ____________________ funds
at the office of _______________________________________, upon delivery to the
undersigned of the Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no request is
received, the Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of the
Securities to be purchased by the undersigned hereunder.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date, and the obligation of the Company to
sell and deliver the Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the
failure thereof) that (1) the purchase of the Securities to be made by the
undersigned hereunder, which purchase the undersigned represents is not
prohibited on the date hereof, 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 the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such principal amount of the Securities as is
to be sold to them pursuant to the Underwriting Agreement referred to in the
Final Prospectus mentioned above. Promptly after completion of such 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
opinions of counsel for the Company delivered to the Underwriters in connection
therewith. [If more than one series of Debentures, then insert: The obligation
of the undersigned to take
<PAGE>
delivery of and make payment for the Securities hereunder, and the obligation of
the Company to cause the Securities to be sold and delivered, shall not be
affected by the failure of any purchaser to take delivery of and make payment
for the Company's [insert description of other series of Debentures], pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This contract will become a binding
agreement between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
This agreement shall be governed by, and construed in accordance with,
the laws of the State of Minnesota.
Very truly yours,
___________________________________
(Name of Purchaser)
By _________________________________
(Signature and Title of Officer)
___________________________________
___________________________________
(Address)
Accepted:
OTTER TAIL POWER COMPANY
By ____________________________________
(Authorized Signature)
<PAGE>
EXHIBIT 4-D-10
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OTTER TAIL POWER COMPANY
TO
FIRST TRUST NATIONAL ASSOCIATION
AND
JAMES A. EHRENBERG
AS TRUSTEES
_________________
FORM OF SUPPLEMENTAL INDENTURE
_________________
DATED AS OF
_________________
SUPPLEMENTAL TO FIRST MORTGAGE, DATED AS OF JULY 1, 1936, AS AMENDED BY
FORTY- SUPPLEMENTAL INDENTURES DATED VARIOUSLY
MARCH 1, 1939 THROUGH
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<PAGE>
TABLE OF CONTENTS
-----------------
PAGE
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals as to
A. Execution and delivery of Original Indenture and appointment of
successor individual Trustees. . . . . . . . . . . . . . . . . . . . 1
B. Execution and delivery of first forty- Supplemental Indentures;
Indenture completely revised by Twenty-first Supplemental Indenture
(the "Revised Indenture") and further revised by subsequent
Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . 1
C. Outstanding Bonds. . . . . . . . . . . . . . . . . . . . . . . . . . 3
D. Determination to create a new series of Bonds, sometimes called the
"Series of ", issuable only in fully registered form . . . . . . 3
E. Proposed issuance of $ principal amount of
Series Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . 4
F. Performance of conditions precedent to this Supplemental Indenture . 4
ARTICLE I.
CREATION OF AND TERMS OF THE SERIES OF
SECTION 1. Series created; limited to $ principal amount. . . . . . . 4
SECTION 2. Issuable only as fully registered Bonds; dates; maturity;
rate of and dates of interest payments; places of payment. . . 4
SECTION 3. Denominations and numbering. . . . . . . . . . . . . . . . . . 5
SECTION 4. Form of Bonds. . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 5. Temporary Bonds shall be printed; definitive Bonds may be
printed or lithographed on steel engraved borders or
printed. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6. Temporary Bonds issuable as fully registered Bonds subject to
all of the provisions of Section 4.09 of the Revised Indenture
and definitive Bonds having all of the benefits, except as
noted, of Section 4.06 of the Revised Indenture; no charge for
transfer or exchange of Bonds except as noted. . . . . . . . . 10
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<PAGE>
ii
PAGE
SECTION 7. Optional redemption of Bonds; redemption of Bonds
through the sinking fund provided by Section 8
and from the net proceeds accruing from certain
sales of mortgaged property; Article VII of Revised
Indenture supplemented with respect only to Bonds of
the Series of . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 8. Sinking fund for Bonds of all series while any Bonds
of the Series of are outstanding. . . . . . . . . . . . . 13
SECTION 9. Restriction on payment of dividends on Common Shares
while any Bonds of the Series of are outstanding. . . . . 15
ARTICLE II.
MISCELLANEOUS
SECTION 10. All provisions of this Supplemental Indenture are part
of the Original Indenture as heretofore revised;
Original Indenture as heretofore revised not modified
except as expressly set forth herein . . . . . . . . . . . . . 15
SECTION 11. Severability of provisions . . . . . . . . . . . . . . . . . . 16
SECTION 12. Execution in counterparts. . . . . . . . . . . . . . . . . . . 16
SECTION 13. Exempt from Minnesota State Transfer Tax . . . . . . . . . . . 16
Signatures, witnesses and acknowledgments. . . . . . . . . . . . . . . . . 17
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<PAGE>
THIS FORTY- SUPPLEMENTAL INDENTURE is made as of
by OTTER TAIL POWER COMPANY, a Minnesota corporation, with its
principal office and post office address at 215 South Cascade Street, Box
496, Fergus Falls, Minnesota 56538-0496, party of the first part (the
"Company"), and FIRST TRUST NATIONAL ASSOCIATION, a national association,
with its principal office and post office address at First Trust Center,
St. Paul, Minnesota 55101, and James A. Ehrenberg of St. Paul, Minnesota,
whose post office address is in care of First Trust National Association,
parties of the second part (the "Trustees").
RECITALS:
A. The Company made, executed and delivered to First Trust National
Association (formerly named First Trust Company of Saint Paul and First Trust
Company, Inc.) (the "corporate Trustee") and Louis S. Headley (the "individual
Trustee"), as Trustees, an Indenture of Mortgage dated as of the 1st day of
July, 1936 (the "Original Indenture"), in and by which Original Indenture the
Company conveyed and mortgaged to the Trustees all of the property then owned or
to be thereafter acquired by the Company (except as therein otherwise expressly
provided) to secure the First Mortgage Bonds (the "Bonds") of the Company
consisting of one or more series and not limited as to the aggregate principal
amount thereof to be at any time issued and outstanding (except as therein
expressly provided) thereunder. Louis S. Headley was succeeded as individual
Trustee by Russell M. Collins on January 10, 1951. Russell M. Collins was
succeeded as individual Trustee by D. L. Doyon on April 24, 1964. D. L. Doyon
was succeeded as individual Trustee by James A. Ehrenberg on April 27, 1982.
B. The Company made, executed and delivered to the corporate Trustee and the
then acting individual Trustee, as Trustees, the following Supplemental
Indentures, each supplementing the Original Indenture and all prior Supplemental
Indentures:
First Supplemental Indenture dated March 1, 1939
Second Supplemental Indenture dated September 1, 1941
Third Supplemental Indenture dated September 15, 1941
Fourth Supplemental Indenture dated November 1, 1941
Fifth Supplemental Indenture dated December 29, 1941
Sixth Supplemental Indenture dated August 1, 1944
Seventh Supplemental Indenture dated October 14, 1944
Eighth Supplemental Indenture dated November 15, 1944
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<PAGE>
2
Ninth Supplemental Indenture dated July 15, 1947
Tenth Supplemental Indenture dated August 13, 1947
Eleventh Supplemental Indenture dated October 1, 1947
Twelfth Supplemental Indenture dated April 29, 1948
Thirteenth Supplemental Indenture dated August 1, 1948
Fourteenth Supplemental Indenture dated April 22, 1949
Fifteenth Supplemental Indenture dated September 15, 1950
Sixteenth Supplemental Indenture dated October 27, 1950
Seventeenth Supplemental Indenture dated February 27, 1951
Eighteenth Supplemental Indenture dated October 27, 1952
Nineteenth Supplemental Indenture dated December 1, 1953
Twentieth Supplemental Indenture dated March 1, 1957
Twenty-first Supplemental Indenture dated July 1, 1958
Twenty-second Supplemental Indenture dated July 15, 1958
Twenty-third Supplemental Indenture dated November 30, 1960
Twenty-fourth Supplemental Indenture dated January 16, 1961
Twenty-fifth Supplemental Indenture dated August 29, 1963
Twenty-sixth Supplemental Indenture dated October 23, 1963
Twenty-seventh Supplemental Indenture dated October 8, 1965
Twenty-eighth Supplemental Indenture dated March 1, 1971
Twenty-ninth Supplemental Indenture dated May 1, 1971
Thirtieth Supplemental Indenture dated December 1, 1972
Thirty-first Supplemental Indenture dated February 1, 1973
Thirty-second Supplemental Indenture dated January 18, 1974
Thirty-third Supplemental Indenture dated December 1, 1974
Thirty-fourth Supplemental Indenture dated November 1, 1975
Thirty-fifth Supplemental Indenture dated April 1, 1977
Thirty-sixth Supplemental Indenture dated July 1, 1978
Thirty-seventh Supplemental Indenture dated November 1, 1978
Thirty-eighth Supplemental Indenture dated October 1, 1979
Thirty-ninth Supplemental Indenture dated October 15, 1979
Fortieth Supplemental Indenture dated November 1, 1980
Forty-first Supplemental Indenture dated August 1, 1989
Forty-second Supplemental Indenture dated December 1, 1990
Forty-third Supplemental Indenture dated February 1, 1991
Forty-fourth Supplemental Indenture dated September 1, 1991
Forty-fifth Supplemental Indenture dated July 1, 1992.
In and by these Supplemental Indentures the Company conveyed and mortgaged to
the Trustees in the trust established by the Original Indenture the additional
properties described in such Supplemental Indentures, made amendments to the
Original Indenture and added other covenants and agreements to the covenants and
agreements of the Company contained in the Original Indenture as theretofore
amended. The Twenty-first Supplemental Indenture (hereinafter called the
"Revised Indenture")
-
<PAGE>
3
revised and restated all of the provisions of Articles One to Twenty-two, both
inclusive, of the Original Indenture, as theretofore amended and supplemented,
and all of the provisions of the Supplemental Indentures prior thereto, except
the Granting Clauses thereof, and of the resolutions creating the series of
Bonds of the Company then outstanding. Certain of the provisions were further
revised by the Twenty-second Supplemental Indenture and the Thirty-second
Supplemental Indenture. The Original Indenture as amended, supplemented and
revised by all of the indentures supplemental thereto is referred to as the
"Indenture".
C. The indebtedness of the Company now outstanding and secured by the
Indenture consists of the following First Mortgage Bonds:
PRINCIPAL
SERIES AMOUNT
8 3/4 % Series of 1997. . . . . . . . . . . . . . . . .
7 1/4 % Series of 2002. . . . . . . . . . . . . . . . .
7 5/8 % Series of 2003. . . . . . . . . . . . . . . . .
6.00%--6.80% Pollution Control. . . . . . . . . . . . .
(Big Stone Project) Series 1991 . . . . . . . . . . .
8 1/8 % Pollution Control . . . . . . . . . . . . . . .
(Coyote Project) Series B . . . . . . . . . . . . . .
6.00%-6.90% Pollution Control . . . . . . . . . . . . .
(Coyote Project) Series 1991. . . . . . . . . . . . .
8 3/4 % Series of 2021. . . . . . . . . . . . . . . . .
8 1/4 % Series of 2022. . . . . . . . . . . . . . . . .
D. Pursuant to power reserved by the Company in the Indenture, the Company
has determined, by appropriate action of its Board of Directors, to create in
and by this Forty- Supplemental Indenture a new series of Bonds to be known
and designated as the % Series of (sometimes hereinafter called the
"Series of "), the Bonds of which series are to be known and designated as
"First Mortgage Bonds, % Series of " and are hereinafter sometimes called
the "Series of Bonds", which series of Bonds is limited to $
aggregate principal amount thereof and which will be issuable only in fully
registered form without coupons, and the Company desires in and by this Forty-
Supplemental Indenture further to supplement the Indenture by setting forth
the terms of and matters in respect of the Series of Bonds, all as required
or permitted by the Indenture.
E. The Company is about to issue under the Indenture, as hereby supplemented,
the $ principal amount of the Series of Bonds.
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<PAGE>
4
F. The execution, acknowledgment and delivery of this Forty-
Supplemental Indenture have been in all respects duly authorized by action
duly taken by the Board of Directors of the Company, and all things necessary
to make this Forty- Supplemental Indenture the valid, binding and legal
obligation of the Company have been done and performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That for and in consideration of
the purchase and acceptance of the Bonds issued or to be issued under the
Indenture, as the same may be amended or supplemented from time to time, by the
several and various persons who have and will by such purchase and acceptance
from time to time become holders thereof and in further consideration of the sum
of One Dollar ($1.00), lawful money of the United States of America, to the
Company duly paid by the Trustees at or before the execution and delivery of
this Forty- Supplemental Indenture, the receipt and sufficiency of which is
acknowledged by the Company, the Company and the Trustees have executed and
delivered this Forty- Supplemental Indenture and do hereby agree and
declare as follows:
ARTICLE I.
CREATION OF AND TERMS OF THE SERIES OF
SECTION 1. There is hereby created and authorized a series of Bonds of the
Company issuable under and secured by the Indenture, which series will be known
and designated as the % Series of , and the Bonds of which series shall be
known and designated as the "First Mortgage Bonds, % Series of ", which
series shall be limited to $ aggregate principal amount of Bonds.
SECTION 2. Each First Mortgage Bond, % Series of shall be issuable only
as a fully registered Bond without coupons and shall be dated as of the interest
payment date thereof to which interest was paid next preceding the date of
issue, unless (a) issued on an interest payment date to which interest was paid,
in which event it shall be dated as of the date of issue, or (b) issued prior to
the occurrence of the first interest payment date on which interest is to be
paid, in which event it shall be dated . All Bonds of such series shall
mature , and shall draw interest at the rate of % per annum (computed
on the basis of a 360-day year of twelve 30-day months), payable semi-annually
on the day of and of each year. All Bonds of such Series shall be
payable, as to principal, premium, if any, and interest, at the office or
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<PAGE>
5
agency of the Company in the City of St. Paul, Minnesota (presently the office
of First Trust National Association in said City), except that interest may be
paid at the option of the Company by checks or drafts payable to the registered
holders of the Bonds as they appear on the books maintained by the corporate
Trustee pursuant to Section 4.10 of the Revised Indenture mailed to such holders
at their addresses appearing on such books.
The Company shall not be required (i) to make transfers or exchanges of Bonds
of such Series for a period of ten days next preceding any interest payment date
or next preceding any selection of such Bonds to be redeemed, or (ii) to
register the transfer or exchange of any Bond so selected for redemption in
whole or in part except, in the case of any Bonds selected for redemption in
part, the portion thereof not to be redeemed.
SECTION 3. Definitive Bonds of the Series of shall be issuable in
denominations of $1,000 or any multiple thereof as may be executed by the
Company and delivered to the corporate Trustee for authentication and delivery.
Bonds of such Series may be issued in temporary form in denominations of $1,000
or any multiple thereof as the Company may direct in a writing addressed to the
corporate Trustee, which temporary Bonds shall be fully registered without
coupons and shall be in the same form as the definitive Bonds, except that the
word "temporary" shall be inserted in the title of said Bonds. The definitive
Bonds shall be appropriately lettered and numbered. The temporary Bonds shall be
lettered "T" and numbered consecutively beginning with the number "1".
SECTION 4. The form of the Bonds of the Series of and of the certificate
of the corporate Trustee to be endorsed on all such Bonds shall be as follows:
(FORM OF BONDS)
(FACE)
No. $
OTTER TAIL POWER COMPANY
First Mortgage Bond, % Series of
FOR VALUE RECEIVED, Otter Tail Power Company, a corporation of the State of
Minnesota (hereinafter called the "Company"), promises to pay to or
registered assigns on the principal sum of Dollars in lawful money
of the United States of America and to pay interest thereon to the registered
holder hereof from the date hereof at the rate of per centum ( %) per
annum (computed on the
-
<PAGE>
6
basis of a 360-day year of twelve 30-day months) in like money, semi-annually on
the day of and of each year, until the payment of said
principal sum. The principal hereof, premium, if any, and interest hereon shall
be paid at the office or agency of the Company in the City of St. Paul,
Minnesota (presently the office of First Trust National Association in said
City), except that interest may be paid at the option of the Company by check or
draft payable to the registered holder hereof appearing on the registry books
maintained by the corporate Trustee mailed to the registered holder hereof at
his address appearing on such books.
THIS BOND IS CONTINUED ON THE REVERSE SIDE HEREOF AND THE ADDITIONAL
PROVISIONS THERE SET FORTH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH AT THIS PLACE.
This Bond shall not be valid or become obligatory for any purpose unless and
until the certificate endorsed hereon shall have been executed by the corporate
Trustee under the Indenture.
IN WITNESS WHEREOF, Otter Tail Power Company has caused this Bond to be signed
by the manual or facsimile signature of its President or one of its Vice
Presidents, and its corporate seal to be affixed hereto or a facsimile thereof
to be imprinted or engraved hereon and attested by the manual or facsimile
signature of its Secretary or one of its Assistant Secretaries.
Dated:
OTTER TAIL POWER COMPANY
By
-------------------------------------
PRESIDENT
Attest:
- -------------------------------------
SECRETARY
(REVERSE)
This Bond is one of an authorized series of Bonds of the Company hereinafter
specified and is one of an authorized issue of Bonds of the Company known
generally as its First Mortgage Bonds, issued or to be issued in one or more
series in accordance with and equally secured by an indenture of mortgage dated
as of July 1, 1936, duly executed and delivered by the Company to First Trust
National Association (formerly named First
-
<PAGE>
7
Trust Company of Saint Paul and First Trust Company, Inc.), a national
association, and Louis S. Headley (to whom James A. Ehrenberg is the successor),
as Trustees, and any and all indentures supplemental thereto, to which
indenture, as amended, revised and supplemented by the indentures supplemental
thereto (hereinafter called the "Indenture"), reference is hereby made for a
description of the property mortgaged, the nature and extent of the security,
the rights of the holders of said Bonds and of the Trustees and of the Company
with respect to such security and the terms and conditions upon which the said
Bonds are and are to be issued and secured. The different series of said Bonds
may mature at different dates, may bear interest at different rates and may
otherwise vary as provided in the Indenture. This Bond is one of the series
designated "First Mortgage Bonds, % Series of " created by the Forty-
Supplemental Indenture dated as of .
At the option of the Company and upon the notice and in the manner and with
the effect provided in the Indenture, any or all of the Bonds of the Series
of , of which this is one, may be redeemed by the Company at any time and
from time to time upon payment of the percentages of the principal amount
thereof set forth in the following table under the heading "General Redemption
Price":
<TABLE>
<CAPTION>
IF REDEEMED DURING THE TWELVE MONTHS' PERIOD BEGINNING
<S> <C> <C> <C> <C> <C>
GENERAL GENERAL GENERAL
REDEMPTION REDEMPTION REDEMPTION
PRICE PRICE PRICE
- ---------- ---------- ---------- ---------- ---------- ----------
</TABLE>
(GENERAL REDEMPTION PRICES ARE TO BE INSERTED IN EACH BOND IN CONFORMITY
WITH THE SCHEDULE OF GENERAL REDEMPTION PRICES IN THE FIRST PARAGRAPH OF
SECTION 7.)
together, in each case, with accrued interest to the redemption date; PROVIDED,
HOWEVER, that no Bonds of the Series of shall be redeemed prior
to directly or indirectly from the proceeds of or in anticipation of any
refunding operation involving the incurring of debt which has an effective
interest cost to the Company, computed in accordance with generally accepted
financial practice, of less than % per annum.
The Bonds of the Series of (a) shall be redeemed by the Company from time
to time to the extent and upon the notice and in the manner and with the effect
provided in the Indenture from funds in the sinking fund provided by the
Indenture, and (b) may be redeemed by the Company at
-
<PAGE>
8
any time and from time to time at the option of the Company and upon the notice
and in the manner and with the effect provided in the Indenture from the net
proceeds accruing from certain sales of mortgaged property as more fully
provided in the Indenture, upon payment of the percentages of the principal
amount thereof set forth in the following table under the heading "Special
Redemption Price":
<TABLE>
<CAPTION>
IF REDEEMED DURING THE TWELVE MONTHS' PERIOD BEGINNING
<S> <C> <C> <C> <C> <C>
SPECIAL SPECIAL SPECIAL
REDEMPTION REDEMPTION REDEMPTION
PRICE PRICE PRICE
- ---------- ---------- ---------- ---------- ---------- ----------
</TABLE>
(SPECIAL REDEMPTION PRICES ARE TO BE INSERTED IN EACH BOND IN CONFORMITY
WITH THE SCHEDULE OF SPECIAL REDEMPTION PRICES IN THE SECOND PARAGRAPH OF
SECTION 7.)
together, in each case, with accrued interest to the redemption date.
If an event of default as defined in the Indenture shall occur, the principal
of this Bond may become and be declared due and payable in the manner and with
the effect provided in the Indenture. No holder of this Bond shall have any
right to institute any suit or proceeding for the foreclosure of the Indenture
or for any other remedy thereunder, except to the extent and in the manner set
forth in the Indenture.
The Indenture contains provisions permitting the modification thereof within
the limits set forth therein, with the assent of the holders of seventy-five per
cent (75%) in aggregate principal amount of the outstanding Bonds of all series,
but does not permit (a) the extension of the maturity of any Bond or of any
installment of principal or interest thereon or the reduction of the principal
thereof or of any installment of such principal or of the rate or rates of
interest or of any premium thereon without the consent of the holder thereof,
(b) the creation by the Company of any mortgage or other similar lien ranking
prior to or on a parity with the lien of the Indenture, (c) the modification of
provisions pertaining to one or more, but less than all, of the series of Bonds
then outstanding without the additional consent of the holders of at least
seventy-five per cent (75%) of the principal amount of the Bonds of each series
so affected, or (d) the reduction in the percentage of the principal amount of
Bonds upon the consent of the holders of which modifications may be made as
aforesaid.
This Bond is transferable by the registered holder hereof in person or by
attorney duly authorized in writing, at the office of First Trust National
-
<PAGE>
9
Association, St. Paul, Minnesota, on registry books kept for such purpose at
such office and upon surrender and cancellation of this Bond. No charge will be
made by the Company for any exchange or transfer of this Bond, other than for
stamp taxes or other governmental charges, if any, applicable thereto. The
Company shall not be required (i) to transfer or exchange this Bond for a period
of ten days next preceding any interest payment date hereon or next preceding
any applicable selection of Bonds to be redeemed, or (ii) to register the
transfer or exchange of this Bond if so selected for redemption in whole or in
part except, if selected for redemption in part, the portion hereof not to be
redeemed. Upon any such transfer, a new Bond or Bonds of the same series of
Bonds of which this Bond is one, and for the same aggregate principal amount,
will be issued to the transferee therefor.
No recourse shall be had for the payment of the principal of or the interest
on this Bond or for any claim based hereon or otherwise in respect hereof or of
the Indenture or of any agreement supplemental thereto against any subscriber to
the capital stock, incorporator or any past, present or future stockholder,
officer or director of the Company or of any predecessor or successor
corporation, either directly or through the Company or any predecessor or
successor corporation or any receiver or trustee in bankruptcy, whether by
virtue of any constitution or statute or rule of law or by the enforcement of
any assessment or penalty or stock subscription or otherwise, all such
liability, whether at common law or in equity or by statute or constitution or
otherwise, being, to the extent permitted by law, by the acceptance and as a
part of the consideration for the issuance hereof, expressly waived and released
by the registered holder hereof.
-
<PAGE>
10
(FORM OF TRUSTEE'S CERTIFICATE)
This is to certify that this is one of the Bonds of the series designated
therein described in the within mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION,
Corporate Trustee
By
--------------------------------------
ITS AUTHORIZED SIGNER
SECTION 5. The temporary Bonds of the Series of shall be printed. The
definitive Bonds of such Series may be in the form of fully engraved Bonds or
Bonds printed or lithographed on steel engraved borders or Bonds printed.
SECTION 6. Temporary Bonds of the Series of shall, notwithstanding
anything contained in Section 4.09 of the Revised Indenture, be issuable only as
fully registered Bonds without coupons and shall be subject to all of the
provisions of said Section 4.09. The definitive Bonds of such Series shall have
all of the benefits of Section 4.06 (exclusive of subparagraphs (a), (c) and (d)
thereof) of the Revised Indenture. Notwithstanding anything contained in Section
4.11 of the Revised Indenture, the Company, at its option, may require the
payment of a sum sufficient to reimburse it for any stamp tax or other
governmental charge incident to the transfer or exchange of Bonds of the Series
of but may not require payment of any further sum for Bonds issued upon
such transfer or exchange. Bonds of the Series of shall be executed on
behalf of the Company by the manual or facsimile signature of its President or a
Vice President under its corporate seal (which may be a facsimile thereof),
attested by the manual or facsimile signature of its Secretary or an Assistant
Secretary.
SECTION 7. At the option of the Company and upon the notice and in the manner
and with the effect provided in Article VII of the Revised Indenture as
supplemented by this Section 7, any or all of the Bonds of the Series of
may be redeemed by the Company at any time and from time to time upon payment
of the percentages of the principal amount thereof set forth in the following
table under the heading "General Redemption Price":
-
<PAGE>
11
<TABLE>
<CAPTION>
IF REDEEMED DURING THE TWELVE MONTHS' PERIOD BEGINNING
<S> <C> <C> <C> <C> <C>
GENERAL GENERAL GENERAL
REDEMPTION REDEMPTION REDEMPTION
PRICE PRICE PRICE
- ---------- ---------- ---------- ---------- ---------- ----------
</TABLE>
together, in each case, with accrued interest to the redemption date; PROVIDED,
HOWEVER, that no Bonds of the Series of shall be redeemed pursuant to this
paragraph of this Section 7 prior to directly or indirectly from the
proceeds of or in anticipation of any refunding operation involving the
incurring of debt which has an effective interest cost to the Company, computed
in accordance with generally accepted financial practice, of less than % per
annum.
The Bonds of the Series of (a) shall be redeemed by the Company from time
to time to the extent and upon the notice and in the manner and with the effect
provided in Article VII of the Revised Indenture as supplemented by this Section
7 from funds in the sinking fund provided by Section 8 hereof, and (b) may be
redeemed by the Company at any time and from time to time at the option of the
Company and upon the notice and in the manner and with the effect provided in
Article VII of the Revised Indenture as supplemented by this Section 7 from the
net proceeds accruing from mortgaged property sold or transferred, whether
voluntarily or involuntarily, by the Company to any municipality, governmental
agency or public authority, upon payment of the percentages of the principal
amount thereof set forth in the following table under the heading "Special
Redemption Price":
-
<PAGE>
12
<TABLE>
<CAPTION>
IF REDEEMED DURING THE TWELVE MONTHS' PERIOD BEGINNING
<S> <C> <C> <C> <C> <C>
SPECIAL SPECIAL SPECIAL
REDEMPTION REDEMPTION REDEMPTION
PRICE PRICE PRICE
- ---------- ---------- ---------- ---------- ---------- ----------
</TABLE>
together, in each case, with accrued interest to the redemption date. No Bonds
of the Series of redeemed pursuant to this paragraph of this Section 7
shall be reissued or otherwise utilized under any of the provisions of the
Indenture, and no Bonds of any series whatsoever shall be issued in lieu
thereof.
If Bonds of the Series of are to be redeemed as provided in this Section
7, notice of redemption shall be given by first class mail, postage prepaid, by
or on behalf of the Company, not less than thirty (30) nor more than sixty (60)
days prior to the date of redemption, to the registered holders of all Bonds to
be redeemed, at their respective addresses appearing upon the books maintained
by the corporate Trustee pursuant to Section 4.10 of the Revised Indenture. Any
notice which is mailed as herein provided shall be conclusively presumed to have
been properly and sufficiently given on the date of such mailing, whether or not
the registered holder receives the notice. In any case, failure to give due
notice by mail, or any defect in the notice, to the registered holder of any
Bond of the Series of designated for redemption in whole or in part shall
not affect the validity of the proceedings for the redemption of any other Bond
of such Series. In case of any redemption of Bonds of the Series of by the
corporate Trustee pursuant to the provisions of the Indenture or any indenture
supplemental thereto, notice of redemption shall be given in a similar manner by
the corporate Trustee. Notwithstanding any provision of Article VII of the
Revised Indenture, no publication of notice of redemption of Bonds of the Series
of shall be required by the Indenture.
-
<PAGE>
13
Except as provided in the immediately preceding paragraph, the provisions of
Article VII of the Revised Indenture shall in all respects apply to any
redemption to which this Section 7 applies. Nothing in this Section 7 contained
shall affect the manner of giving notice of the redemption of Bonds of the
Company of any series other than Bonds of the Series of .
SECTION 8. (a) So long as any of the Bonds of the Series of are
outstanding, there shall be a sinking fund for the benefit of the outstanding
Bonds of all series into which the Company shall pay to the corporate Trustee on
the first day of December of each year an amount in cash equal to 1% of the
greatest aggregate principal amount at any time theretofore outstanding of Bonds
of each series of which at the date of payment there are Bonds outstanding,
provided that there shall first be deducted from such aggregate principal amount
the aggregate principal amount of the Bonds of any such series which have
theretofore been refunded by the issuance of Bonds of another series, provided,
that the Company shall not be required to make payment into the sinking fund
with respect to any series of Bonds created after the date hereof until the
first day of December in the calendar year following the calendar year in which
such Bonds were issued except to the extent, if any, that Bonds of such
additional series were issued to refund Bonds of a prior series. Whenever there
are more than one series of Bonds outstanding on a first day of December on
which an obligation accrues to the Company to make a payment into the sinking
fund, the Trustees upon receipt of the payment by the Company on account of such
obligation shall allocate such payment to each of the series of Bonds
outstanding in the proportion of the net aggregate principal amount which the
Bonds of such series included in the computation of such sinking fund payment
bears to the aggregate principal amount of the Bonds of all series included in
such computation. Sinking fund moneys shall be held by the Trustees as a part of
the mortgaged property and for the benefit of the Bonds of the series to which
the same shall be allocated by the Trustees as herein provided.
(b) The first payment into the sinking fund which the Company shall pay with
respect to Bonds of the Series of shall be made on the first day of
December, . Moneys in the sinking fund for the benefit of the Bonds of the
Series of shall be applied, not later than February 1 of each year, (i) to
the redemption of Bonds of such Series by lot, in accordance with the provisions
of Article VII of the Revised Indenture as
-
<PAGE>
14
supplemented by Section 7 hereof, at the Special Redemption Prices set forth in
the second paragraph of Section 7 hereof, plus, in each case, accrued interest
to the redemption date, or (ii) to the redemption of Bonds of such Series at the
aforesaid Special Redemption Prices ratably from the holders of all thereof in
the proportions which the principal amount of Bonds of such Series held by each
holder bears to the principal amount of all Bonds of such Series then
outstanding, computed to the nearest unit of Bonds of the denomination of
$1,000. The Company shall provide from funds not constituting a part of the
trust estate for the premium and/or accrued interest, if any, paid or required
in connection with any such redemption. Any unused portion of moneys in the
sinking fund shall be carried over for the benefit of Bonds of the applicable
series and used with the next payment into the sinking fund. The Company may
elect whether to redeem such Bonds by lot or pro rata; provided that in the
event that the Company does not by any December 15 elect the manner in which
moneys in the sinking fund are to be applied to the redemption of Bonds of such
Series, any moneys in the sinking fund applicable to such Series shall be
applied by the Trustees to the redemption of Bonds of such Series by lot. No
Bonds of whatsoever series redeemed pursuant to the sinking fund established by
this Section 8 shall be reissued or otherwise utilized under any of the
provisions of the Indenture, and no Bonds of any series whatsoever shall be
issued in lieu thereof.
(c) In lieu of depositing cash with the corporate Trustee to be held and
applied by it as a part of the sinking fund for the Bonds of the Series
of , the Company may reacquire and deliver to the corporate Trustee Bonds of
such Series at the amount which would have been required to effect the
redemption through the sinking fund of the Bonds so delivered on the February 1
next following such delivery. Any such Bonds so delivered to the corporate
Trustee shall be accompanied by an officers' certificate stating (i) that such
Bonds have been duly issued and outstanding and have been reacquired by the
Company, (ii) that none of such Bonds has theretofore been made the basis for
the authentication of Bonds or for the withdrawal of cash or has otherwise been
utilized under any of the provisions of the Indenture, and (iii) that such Bonds
are delivered to the corporate Trustee in lieu of cash required to be deposited
in the sinking fund for Bonds of such Series. All Bonds so delivered shall be
cancelled and destroyed by the corporate Trustee and shall not be made the basis
for the authentication of Bonds or for the withdrawal of cash or otherwise
utilized under any of the provisions of the Indenture.
-
<PAGE>
15
SECTION 9. So long as any of the Bonds of the Series of shall be
outstanding, the Company will not (i) declare or pay, or set apart any funds for
the payment of, any dividends (other than dividends payable in Common Shares of
the Company) on any Common Shares of the Company, or (ii) make any other
distribution, by reduction of capital or otherwise, in respect of any Common
Shares of the Company, unless, immediately after giving effect thereto, the sum
of
(1) the aggregate amounts declared and paid or payable as, or set apart
for, dividends (other than dividends payable in Common Shares of the
Company) on the Common Shares of the Company subsequent to December 31,
1976, and
(2) the aggregate amounts otherwise distributed (taken at cost to the
Company or fair value at time of distribution, whichever is higher) in
respect of the Common Shares of the Company subsequent to December 31,
1976,
will not be in excess of $8,000,000 plus the net income of the Company available
for Common Shares accrued subsequent to December 31, 1976. The Company's net
income available for Common Shares shall be determined in accordance with
generally accepted accounting principles; provided, however, that solely for the
purpose of computing such net income, and not otherwise, there shall be deducted
from such net income of the Company for each calendar year after the year 1976,
as an additional depreciation charge, the amount, if any, by which the
depreciation requirement of the Company (as defined in Section 2.01(34) of the
Revised Indenture) for such year exceeds the depreciation charges actually made
by the Company for such year on account of its depreciable fundable property.
ARTICLE II.
MISCELLANEOUS
SECTION 10. All of the provisions of this Forty- Supplemental Indenture
shall be deemed to be a part of the Indenture, and shall bind and benefit the
Company, the Trustees and the holders of the Bonds, or a specified series
thereof where the provisions are with respect to such series only, and the
Trustees and the holders of the Bonds shall have the same remedies for a breach
of any of the provisions of this Forty- Supplemental Indenture as are
provided in the Indenture with respect to a breach of any of the provisions of
the Indenture. Nothing herein contained,
-
<PAGE>
16
except as herein otherwise expressly provided, shall be taken or construed as
modifying, altering, amending or changing any of the terms, covenants,
provisions, conditions or limitations contained in the Indenture, and all of the
terms, conditions, provisions, covenants and limitations of the Indenture, as
supplemented by this Forty- Supplemental Indenture, are expressly ratified,
approved, confirmed and assumed by the Company, and all thereof shall bind the
Company, its successors and assigns, and shall inure to the benefit of the
Company, its successors and assigns.
SECTION 11. In case any one or more of the provisions of this
Forty- Supplemental Indenture shall for any reason be held to be illegal or
invalid, such illegality or invalidity shall not affect any other provision of
this Forty- Supplemental Indenture, but this Forty- Supplemental
Indenture shall be construed and enforced as if such illegal or invalid
provision or provisions had not been contained herein.
SECTION 12. This Forty- Supplemental Indenture may be simultaneously
executed in any number of counterparts, each of which is, and shall be taken,
accepted and received by the parties hereto, and by all other persons, as an
original, and all thereof shall together evidence and constitute one and the
same agreement.
SECTION 13. This Forty- Supplemental Indenture is exempt from the
Minnesota State Transfer Tax.
-
<PAGE>
17
IN WITNESS WHEREOF, Otter Tail Power Company has caused this Forty-
Supplemental Indenture to be signed in its name and behalf by its President or
one of its Vice Presidents, and its corporate seal to be hereunto affixed and
attested by its Secretary or one of its Assistant Secretaries; First Trust
National Association has caused this Forty- Supplemental Indenture to be
signed in its name and behalf by its President or one of its Vice Presidents,
and its corporate seal to be hereunto affixed and attested by one of its
Assistant Secretaries; and James A. Ehrenberg has hereunto set his hand and
seal, all as of the day and year first above written.
OTTER TAIL POWER COMPANY
By
--------------------------------------
VICE PRESIDENT, FINANCE
Attest:
- -------------------------------------
SECRETARY
FIRST TRUST NATIONAL ASSOCIATION
By
--------------------------------------
VICE PRESIDENT
Attest:
- -------------------------------------
ASSISTANT SECRETARY
--------------------------------------
James A. Ehrenberg
-
<PAGE>
18
STATE OF MINNESOTA
SS.
COUNTY OF OTTER TAIL
On this day of , before me, a Notary Public in and for said County
and State, personally appeared A. E. ANDERSON and JAY D. MYSTER, to me
personally known to be the Vice President, Finance and the Secretary,
respectively, of Otter Tail Power Company, one of the corporations described in
and that executed the within instrument, who, being by me duly sworn, did say
that they are, respectively, the Vice President, Finance and Secretary of said
corporation, and that the seal affixed to said instrument is the corporate seal
of said corporation and that said instrument was signed and sealed in behalf of
said corporation by authority of its Board of Directors, and said A. E. ANDERSON
and JAY D. MYSTER acknowledged said instrument to be the free act and deed of
said corporation.
--------------------------------------
STATE OF MINNESOTA
SS.
COUNTY OF RAMSEY
On this day of , before me, a Notary Public in and for said County
and State, personally appeared and , to me personally known to
be a Vice President and an Assistant Secretary, respectively, of First Trust
National Association, one of the corporations described in and that executed the
within instrument, who, being by me duly sworn, did say that they are,
respectively, a Vice President and an Assistant Secretary of said corporation,
and that the seal affixed to said instrument is the corporate seal of said
corporation and that said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said and
acknowledged said instrument to be the free act and deed of said corporation.
--------------------------------------
-
<PAGE>
19
STATE OF MINNESOTA
SS.
COUNTY OF RAMSEY
On this day of , before me, a Notary Public in and for said County
and State, personally appeared JAMES A. EHRENBERG, to me personally known to be
the person who is described in and who executed the within instrument, who,
being by me duly sworn, acknowledged to me that he executed the same as his free
act and deed.
--------------------------------------
This instrument was drafted by:
Dorsey & Whitney LLP
220 South Sixth Street, Minneapolis, Minnesota 55402
-
<PAGE>
EXHIBIT 4-D-11
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
OTTER TAIL POWER COMPANY
TO
FIRST TRUST NATIONAL ASSOCIATION, TRUSTEE
--------------
INDENTURE
(FOR UNSECURED DEBT SECURITIES)
DATED AS OF _______ 1, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
OTTER TAIL POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _________ 1, 1996
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . .909
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . .909
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . 914(b)
(a)(4). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .908
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .910
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . .913
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .913
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .913
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . .606
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(3). . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . .901
. . . . . . . . . . . . . . . . . . . . . . . . . . . .903
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .902
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .901
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . .901
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .814
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . .812
. . . . . . . . . . . . . . . . . . . . . . . . . . . .813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . .802
. . . . . . . . . . . . . . . . . . . . . . . . . . . .812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . .813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .808
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . .803
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . .804
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .603
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . .107
<PAGE>
TABLE OF CONTENTS
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . 2
"Authorized Officer" . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" or "Company Order" . . . . . . . . . . . . 3
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . 3
"corporation" . . . . . . . . . . . . . . . . . . . . . . . . 3
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . 3
"Discount Security" . . . . . . . . . . . . . . . . . . . . . 3
"Dollar" or "$" . . . . . . . . . . . . . . . . . . . . . . . 3
"Eligible Obligations" . . . . . . . . . . . . . . . . . . . 4
"Event of Default" . . . . . . . . . . . . . . . . . . . . . 4
"Governmental Authority" . . . . . . . . . . . . . . . . . . 4
"Government Obligations" . . . . . . . . . . . . . . . . . . 4
"Holder". . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . 5
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Officer's Certificate" . . . . . . . . . . . . . . . . . . . 5
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . 5
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . 5
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . 6
"Periodic Offering" . . . . . . . . . . . . . . . . . . . . . 7
"Person". . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Place of Payment" . . . . . . . . . . . . . . . . . . . . . 7
"Predecessor Security" . . . . . . . . . . . . . . . . . . . 7
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . . 7
"Redemption Price" . . . . . . . . . . . . . . . . . . . . . 7
"Regular Record Date" . . . . . . . . . . . . . . . . . . . . 7
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<PAGE>
"Required Currency" . . . . . . . . . . . . . . . . . . . . . 7
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . 7
"Securities" . . . . . . . . . . . . . . . . . . . . . . . . 7
"Security Register" and "Security Registrar" . . . . . . . . 7
"Special Record Date" . . . . . . . . . . . . . . . . . . . . 8
"Stated Interest Rate" . . . . . . . . . . . . . . . . . . . 8
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . . 8
"Tranche" . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Trust Indenture Act" . . . . . . . . . . . . . . . . . . . . 8
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"United States" . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions. . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . 9
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc. to Trustee and Company. . . . . . . . 12
SECTION 106. Notice to Holders of Securities; Waiver. . . . . . 13
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . 14
SECTION 108. Effect of Headings and Table of Contents. . . . . . 14
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . 14
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . 14
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . 14
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . 14
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . 15
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . 16
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . 20
SECTION 303. Execution, Authentication, Delivery and Dating. . . 20
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . 23
SECTION 305. Registration, Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . . . . . . 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . 25
SECTION 307. Payment of Interest; Interest Rights Preserved. . . 26
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<PAGE>
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . 27
SECTION 309. Cancellation by Security Registrar. . . . . . . . . 27
SECTION 310. Computation of Interest. . . . . . . . . . . . . . 28
SECTION 311. Payment to Be in Proper Currency. . . . . . . . . . 28
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article. . . . . . . . . . . . . . 28
SECTION 402. Election to Redeem; Notice to Trustee. . . . . . . 29
SECTION 403. Selection of Securities to Be Redeemed. . . . . . . 29
SECTION 404. Notice of Redemption. . . . . . . . . . . . . . . . 30
SECTION 405. Securities Payable on Redemption Date. . . . . . . 31
SECTION 406. Securities Redeemed in Part. . . . . . . . . . . . 31
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article. . . . . . . . . . . . . . 32
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . . . . 32
SECTION 503. Redemption of Securities for Sinking Fund. . . . . 33
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest. . . . . 33
SECTION 602. Maintenance of Office or Agency. . . . . . . . . . 34
SECTION 603. Money for Securities Payments to Be Held in
Trust. . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 604. Corporate Existence. . . . . . . . . . . . . . . . 36
SECTION 605. Maintenance of Properties. . . . . . . . . . . . . 36
SECTION 606. Annual Officer's Certificate as to Compliance. . . 36
SECTION 607. Waiver of Certain Covenants. . . . . . . . . . . . 37
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<PAGE>
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities. . . . . . 37
SECTION 702. Satisfaction and Discharge of Indenture. . . . . . 40
SECTION 703. Application of Trust Money. . . . . . . . . . . . . 40
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default. . . . . . . . . . . . . . . . . 41
SECTION 802. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . 43
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . 44
SECTION 804. Trustee May File Proofs of Claim. . . . . . . . . . 45
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . 45
SECTION 806. Application of Money Collected. . . . . . . . . . . 46
SECTION 807. Limitation on Suits. . . . . . . . . . . . . . . . 46
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . . 47
SECTION 809. Restoration of Rights and Remedies. . . . . . . . . 47
SECTION 810. Rights and Remedies Cumulative. . . . . . . . . . . 47
SECTION 811. Delay or Omission Not Waiver. . . . . . . . . . . . 48
SECTION 812. Control by Holders of Securities. . . . . . . . . . 48
SECTION 813. Waiver of Past Defaults. . . . . . . . . . . . . . 48
SECTION 814. Undertaking for Costs. . . . . . . . . . . . . . . 49
SECTION 815. Waiver of Stay or Extension Laws. . . . . . . . . . 49
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities. . . . . . . . 50
SECTION 902. Notice of Defaults. . . . . . . . . . . . . . . . . 51
SECTION 903. Certain Rights of Trustee. . . . . . . . . . . . . 51
SECTION 904. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . 53
SECTION 905. May Hold Securities. . . . . . . . . . . . . . . . 53
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<PAGE>
SECTION 906. Money Held in Trust. . . . . . . . . . . . . . . . 53
SECTION 907. Compensation and Reimbursement. . . . . . . . . . . 53
SECTION 908. Disqualification; Conflicting Interests. . . . . . 54
SECTION 909. Corporate Trustee Required; Eligibility. . . . . . 54
SECTION 910. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . 55
SECTION 911. Acceptance of Appointment by Successor. . . . . . . 57
SECTION 912. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . . . 58
SECTION 913. Preferential Collection of Claims Against
Company. . . . . . . . . . . . . . . . . . . . . . 59
SECTION 914. Co-trustees and Separate Trustees. . . . . . . . . 59
SECTION 915. Appointment of Authenticating Agent. . . . . . . . 61
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders. . . . . . . . . . . . . . . . . . 63
SECTION 1002. Reports by Trustee and Company. . . . . . . . . . . 63
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on
Certain Terms. . . . . . . . . . . . . . . . . . . 64
SECTION 1102. Successor Corporation Substituted. . . . . . . . . 64
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . . . . . 65
SECTION 1202. Supplemental Indentures With Consent
of Holders. . . . . . . . . . . . . . . . . . . . . 67
SECTION 1203. Execution of Supplemental Indentures. . . . . . . . 68
SECTION 1204. Effect of Supplemental Indentures. . . . . . . . . 69
SECTION 1205. Conformity With Trust Indenture Act. . . . . . . . 69
SECTION 1206. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . 69
SECTION 1207. Modification Without Supplemental Indenture. . . . 69
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<PAGE>
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called. . . . . 70
SECTION 1302. Call, Notice and Place of Meetings. . . . . . . . . 70
SECTION 1303. Persons Entitled to Vote at Meetings. . . . . . . . 71
SECTION 1304. Quorum; Action. . . . . . . . . . . . . . . . . . . 71
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings. . . . . . . . . . . . . . . . . . . . 72
SECTION 1306. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1307. Action Without Meeting. . . . . . . . . . . . . . . 74
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate. . . . . . . . . . . . . 74
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . 75
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 76
- vi -
<PAGE>
INDENTURE, dated as _________, 1996 between OTTER TAIL POWER COMPANY, a
corporation duly organized and existing under the laws of the State of Minnesota
(herein called the "Company"), having its principal office at 215 South Cascade
Street, P.O. Box 496, Fergus Falls, Minnesota 56538, and First Trust National
Association, a national banking association organized and existing under the
laws of the United States of America, having its principal corporate trust
office at First Trust Center, 180 East Fifth Street, St. Paul, Minnesota 55101,
as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as contemplated herein; and
all acts necessary to make this Indenture a valid agreement of the Company have
been performed.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires, capitalized terms used herein shall
have the meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
<PAGE>
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the
date of such computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted accounting
principles applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any administrative
agency, regulatory authority or other governmental body having jurisdiction
over the Company; and
(d) 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 Nine, are defined in that
Article.
"ACT", when used with respect to any Holder of a Security, has the meaning
specified in Section 104.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or through one or
more intermediaries, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the Company or an
Affiliate of the Company) authorized by the Trustee to act on behalf of the
Trustee to authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer or any other duly
authorized officer of the Company.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee thereof duly authorized to act in respect of matters relating to
this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
- 2 -
<PAGE>
"BUSINESS DAY", when used with respect to a Place of Payment or any other
particular location specified in the Securities or this Indenture, means any
day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the date of execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body, if any, performing such duties at
such time.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by an Authorized Officer and delivered to the
Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution and delivery of this Indenture is located
at First Trust Center, 180 East Fifth Street, St. Paul, Minnesota 55101.
"CORPORATION" means a corporation, association, company, joint stock
company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"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 802, and "INTEREST"
with respect to a Discount Security means interest, if any, borne by such
Security at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
- 3 -
<PAGE>
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
(b) with respect to Securities denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments
as shall be specified with respect to such Securities, as contemplated by
Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the United States or of
any State or Territory thereof or of the District of Columbia or of any county,
municipality or other political subdivision of any thereof, or any department,
agency, authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the timely payment of
principal of and interest on which are unconditionally guaranteed by, the
United States entitled to the benefit of the full faith and credit thereof;
and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause (a)
above or in any specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or trust company
(which may include the Trustee or any Paying Agent) subject to Federal or
state supervision or examination with a combined capital and surplus of at
least $50,000,000; and provided, further, that except as may be otherwise
required by law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the full amount
received by such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed and delivered and
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.
- 4 -
<PAGE>
"INTEREST PAYMENT DATE", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as provided in such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized Officer
and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company, or other counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with Section
701; and
(c) 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 and the Company that such Securities are held by a bona
fide purchaser or purchasers in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor (unless
the Company, such Affiliate or such obligor owns all Securities Outstanding
under this Indenture, or all Outstanding Securities of each such series and
each such Tranche, as the case may be, determined without regard to this
- 5 -
<PAGE>
clause (x)) shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver or upon any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor;
(y) the principal amount of a Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 802; and
(z) the principal amount of any Security which is denominated in a
currency other than Dollars or in a composite currency that shall be deemed
to be Outstanding for such purposes shall be the amount of Dollars which
could have been purchased by the principal amount (or, in the case of a
Discount Security, the Dollar equivalent on the date determined as set
forth below of the amount determined as provided in (y) above) of such
currency or composite currency evidenced by such Security in each such case
certified to the Trustee in an Officer's Certificate, based (1) on the
average of the mean of the buying and selling spot rates quoted by three
banks which are members of the New York Clearing House Association selected
by the Company in effect at 11:00 A.M. (New York time) in The City of New
York on the fifth Business Day preceding any such determination or (2) if
on such fifth Business Day it shall not be possible or practicable to
obtain such quotations from such three banks, on such other quotations or
alternative methods of determination which shall be as consistent as
practicable with the method set forth in (1) above;
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized by the
Company to pay the principal of and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
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"PERIODIC OFFERING" means an offering of Securities of a series from time
to time any or all of the specific terms of which Securities, including without
limitation the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
trust or unincorporated organization or any Governmental Authority thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any series,
or Tranche thereof, means the place or places, specified as contemplated by
Section 301, at which, subject to Section 602, principal of and premium, if any,
and interest, if any, on the Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"REDEMPTION DATE", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"SECURITIES" has the meaning stated in the first recital of this Indenture
and more particularly means any securities authenticated and delivered under
this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
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"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at which an
obligation by its terms is stated to bear simple interest. Any calculation or
other determination to be made under this Indenture by reference to the Stated
Interest Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard to the Stated
Interest Rate on, or the effective cost to the Company of, any other
indebtedness the Company's obligations in respect of which are evidenced or
secured in whole or in part by such Security.
"STATED MATURITY", when used with respect to any obligation or any
installment of principal thereof or interest thereon, means the date on which
the principal of such obligation or such installment of principal or interest is
stated to be due and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of the same series and
(b) have identical terms except as to principal amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act of
1939, as amended, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"UNITED STATES" means the United States of America, its Territories, its
possessions and other areas subject to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is
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specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such Officer's Certificate or opinion are
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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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.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officer's Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or dates
required with respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by or at
the request of the Company which could not have been taken had the original
document or instrument not contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered ineffective but shall be and
remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively, may be embodied
in and evidenced by the record of Holders voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except
as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company. 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 and 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
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be sufficient for any purpose of this Indenture and (subject to Section
901) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders
shall be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the Trustee
and the Company deem sufficient. 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.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the proviso to the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of
the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount
of Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to
conform, in the opinion of the Trustee and the Company, to such action may
be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series or
Tranche.
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(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company
may, at its option, by Company Order, 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
Company shall have no obligation to do so. 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 the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of the 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 the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, election,
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, the Trustee by
any Holder or by the Company, or the Company by the Trustee or by any Holder,
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an officer or
other responsible employee of the addressee, or transmitted by facsimile
transmission, telex or other direct written electronic means to such telephone
number or other electronic communications address as the parties hereto shall
from time to time designate, or transmitted by registered mail, charges prepaid,
to the applicable address set opposite such party's name below or to such other
address as either party hereto may from time to time designate:
If to the Trustee, to:
First Trust National Association
First Trust Center
180 East Fifth Street
Saint Paul, Minnesota 55101
Attention: Corporate Trust Officer
Telephone: (612) 244-0738
Facsimile: (612) 244-0712
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If to the Company, to:
Otter Tail Power Company
215 South Cascade Street
P. O. Box 496
Fergus Falls, Minnesota 56538-0496
Attention: Vice President, Finance
Telephone: (218) 739-8200
Facsimile: (218) 739-8895
Any communication contemplated herein shall be deemed to have been made,
given, furnished and filed if personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other direct written electronic
means, on the date of transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed, first-
class postage prepaid, to each Holder affected by such event, at the address of
such Holder 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 case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, 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.
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SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and Trustee
shall bind their respective successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall be held to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or implied, shall give
to any Person, other than the parties hereto, their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, except to the extent that the
law of any other jurisdiction shall be mandatorily applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which establishes the terms of
the Securities of
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such series or Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal and premium, 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, except that if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day in each case with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in substantially the form
or forms thereof established in the indenture supplemental hereto establishing
such series or in a Board Resolution establishing such series, or in an
Officer's Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of Securities of any series
are established in a Board Resolution or in an Officer's Certificate pursuant to
a Board Resolution, such Board Resolution and Officer's Certificate, if any,
shall be delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 301, the Securities
of each series shall be issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as shall be determined by
the officers executing such Securities, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially the
form set forth below:
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This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
First Trust National Association,
Trustee
By:
------------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Prior to the
authentication and delivery of Securities of any series there shall be
established by specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental indenture
or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities
of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 304, 305, 306, 406 or 1206
and, except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal of the Securities of
such series, or any Tranche thereof, is payable or any formula or other
method or other means by which such date or dates shall be determined, by
reference to
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an index or other fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the rate
or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formula or other method or other means
by which such rate or rates shall be determined, by reference to an index
or other fact or event ascertainable outside of this Indenture or
otherwise; the date or dates from which such interest shall accrue; the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on such Securities on
any Interest Payment Date;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Securities of
such series, or any Tranche thereof, shall be payable, (2) registration of
transfer of Securities of such series, or any Tranche thereof, may be
effected, (3) exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or upon the Company
in respect of the Securities of such series, or any Tranche thereof, and
this Indenture may be served; the Security Registrar and any Paying Agent
or Agents for such series or Tranche; and if such is the case, that the
principal of such Securities shall be payable without presentment or
surrender thereof;
(g) the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon which
the Securities of such series, or any Tranche thereof, may be redeemed, in
whole or in part, at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a partial
redemption by the Company of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities from any national
exchange;
(h) the obligation or obligations, if any, of the Company to redeem
or purchase the Securities of such series, or any Tranche thereof, pursuant
to any sinking fund or other mandatory redemption provisions 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 and the terms and
conditions upon which such Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and applicable exceptions to
the requirements of Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
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(i) the denominations in which Securities of such series, or any
Tranche thereof, shall be issuable if other than denominations of $1,000
and any integral multiple thereof;
(j) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest, if
any, on the Securities of such series, or any Tranche thereof, shall be
payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made;
(l) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or
other property, or the formulary or other method or other means by which
such amount shall be determined, and the period or periods within which,
and the terms and conditions upon which, any such election may be made;
(m) if the amount payable in respect of principal of or premium, if
any, or interest, if any, on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index or other fact or
event ascertainable outside of this Indenture, the manner in which such
amounts shall be determined to the extent not established pursuant to
clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in Section
801, with respect to the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the Securities of such
series, or any Tranche thereof, in addition to those set forth in Article
Six;
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(p) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any other
Person;
(q) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series, or
any Tranche thereof, denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any Tranche thereof, are to
be issued in global form, (1) any limitations on the rights of the Holder
or Holders of such Securities to transfer or exchange the same or to obtain
the registration of transfer thereof, (2) any limitations on the rights of
the Holder or Holders thereof to obtain certificates therefor in definitive
form in lieu of temporary form and (3) any and all other matters incidental
to such Securities;
(s) if the Securities of such series, or any Tranche thereof, are to
be issuable as bearer securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental indenture as
contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Securities
of such Series, or any Tranche thereof, to transfer or exchange such
Securities or to obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer or exchange of
Securities of such series, or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any Tranche
thereof; and
(v) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
With respect to Securities of a series subject to a Periodic Offering, the
indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that
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such terms shall be determined by the Company or its agents in accordance with
procedures specified in a Company Order as contemplated by clause (b) of
Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, the Securities of each series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized Officer and may have the
corporate seal of the Company affixed thereto or reproduced thereon and attested
by any other Authorized Officer. The signature of any or all of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at the time of execution Authorized Officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of a series, for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms and
terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of
such Securities and, to the extent that the terms of such Securities shall
not have been established in an indenture supplemental hereto or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by Sections 201 and 301,
either (1) establishing such terms or (2) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures, acceptable to
the Trustee, by which such terms are to be established (which procedures
may provide, to the extent acceptable to the Trustee, for authentication
and delivery pursuant to oral or electronic instructions from the Company
or any agent or agents thereof, which oral instructions are to be promptly
confirmed electronically
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or in writing), in either case in accordance with the instrument or
instruments delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf of the Company
by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(1) the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity with
the provisions of this Indenture;
(2) the terms of such Securities have been duly authorized by
the Company and have been established in conformity with the
provisions of this Indenture; and
(3) such Securities, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will constitute valid
and legally binding obligations of the Company, entitled to the
benefits provided by this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of such
Securities (provided that such Opinion of Counsel addresses the authentication
and delivery of all Securities of such series) and that in lieu of the opinions
described in clauses (2) and (3) above Counsel may opine that:
(x) when the terms of such Securities shall have been established
pursuant to a Company Order or Orders or pursuant to such procedures
(acceptable to the Trustee) as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in accordance with the
instrument or instruments delivered pursuant to clause (a) above, such
terms will have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture; and
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(y) such Securities, when authenticated and delivered by the Trustee
in accordance with this Indenture and the Company Order or Orders or
specified procedures referred to in paragraph (x) above and issued and
delivered by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been duly issued under this
Indenture and will constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by the Indenture, and
enforceable in accordance with their terms, subject, as to enforcement, to
laws relating to or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and insolvency laws and
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until such opinion or other documents have been
superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any series have been established
by or pursuant to a Board Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, each Security shall be dated
the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, no Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee or its
agent by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder
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and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
to the Company, or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver such Security to
the Security Registrar 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 Officer's Certificate and an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, 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 hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with respect to
the Securities of any series, or any Tranche thereof, after the preparation of
definitive Securities of such series or Tranche, the temporary Securities of
such series or Tranche shall be exchangeable, without charge to the Holder
thereof,for definitive Securities of such series or Tranche upon surrender of
such temporary Securities at the office or agency of the Company maintained
pursuant to Section 602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall, except as aforesaid,
execute and the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated pursuant to
Section 602, with respect to the Securities of each series or any Tranche
thereof, a
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register (all registers kept in accordance with this Section being collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities of such series or Tranche and the registration of transfer
thereof. The Company shall designate one Person to maintain the Security
Register for the Securities of each series on a consolidated basis, and such
Person is referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices as an office in which a register with
respect to the Securities of one or more series, or any Tranche or Tranches
thereof, shall be maintained, and the Company may designate itself the Security
Registrar with respect to one or more of such series. The Security Register
shall be open for inspection by the Trustee and the Company at all reasonable
times.
Except as otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series or Tranche at the office
or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the Holder, for one or more
new Securities of the same series and Tranche, of authorized denominations and
of like tenor and aggregate principal amount, upon surrender of the Securities
to be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the Security
Registrar, as the case may be, duly executed by the Holder thereof or his
attorney duly authorized in writing.
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Unless otherwise specified as contemplated by Section 301 with respect to
Securities of any series, or any Tranche thereof, no service charge shall be
made for any registration of transfer or exchange of Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 406 or
1206 not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series, or
any Tranche thereof, during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be reasonably required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security is held by a
Person purporting to be the owner of such Security, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and Tranche, and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security
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shall be at any time enforceable by anyone other than the Holder of such new
Security, and any such new Security shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with respect to
the Securities of any series, or any Tranche thereof, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the related Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a date (herein called a "Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall promptly cause notice of the proposed payment of such
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Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
the address of such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 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.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the absolute owner
of such Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if not theretofore
canceled, shall be promptly canceled by the Security Registrar. The Company may
at any time deliver to the Security Registrar for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever or which the Company shall not have issued and
sold, and all Securities so delivered shall be promptly canceled by the Security
Registrar. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All
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canceled Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security Registrar and the
Trustee, and the Security Registrar shall promptly deliver a certificate of
disposition to the Trustee and the Company unless, by a Company Order, similarly
delivered, the Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any cancellation of a
Security in accordance with this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, or any Tranche thereof, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months and on the basis of the actual number of days elapsed within any month in
relation to the deemed 30 days of such month.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche thereof,
denominated in any currency other than Dollars or in a composite currency (the
"Required Currency"), except as otherwise specified with respect to such
Securities as contemplated by Section 301, the obligation of the Company to make
any payment of the principal thereof, or the premium, if any, or interest, if
any, thereon, shall not be discharged or satisfied by any tender by the Company,
or recovery by the Trustee, in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency then due and payable.
If any such tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except
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as otherwise specified as contemplated by Section 301 for Securities of such
series or Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or an Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such Securities to be redeemed.
In the case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche thereof, are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Security Registrar from the Outstanding Securities of such series or Tranche
not previously called for redemption, by such method as shall be provided for
any particular series or Tranche, or, in the absence of any such provision, by
such method of random selection as the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination larger than the minimum
authorized denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officer's Certificate, the Company shall
have offered to purchase all or any principal amount of the Securities then
Outstanding of any series, or any Tranche thereof, and less than all of such
Securities as to which such offer was made shall have been tendered to the
Company for such purchase, the Security Registrar, if so directed by Company
Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and the Trustee in
writing of the Securities selected for redemption and, in the case of any
Securities selected to be redeemed in part, 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
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Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section 106
to the Holders of the Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche are to
be redeemed, the identification of the particular Securities to be redeemed
and the portion of the principal amount of any Security to be redeemed in
part,
(d) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if such is
the case, and
(g) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701, such notice
may state that such redemption shall be conditional upon the receipt by the
Paying Agent or Agents for such Securities, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and premium, if
any, and interest, if any, on such Securities and that if such money shall not
have been so received such notice shall be of no force or effect and the Company
shall not be required to redeem such
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Securities. In the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be given, in the manner in
which the notice of redemption was given, that such money was not so received
and such redemption was not required to be made, and the Paying Agent or Agents
for the Securities otherwise to have been redeemed shall promptly return to the
Holders thereof any of such Securities which had been surrendered for payment
upon such redemption.
Notice of redemption of Securities to be redeemed at the election of the
Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Security Registrar in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the conditions, if
any, set forth in such notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless,
in the case of an unconditional notice of redemption, the Company shall default
in the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that no such surrender shall be a condition to such
payment if so specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise specified as
contemplated by Section 301 with respect to such Security, any installment of
interest on any Security the Stated Maturity of which installment is on or prior
to the Redemption Date shall be payable to the Holder of such Security, or one
or more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in part at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), the Company shall execute, and the Trustee shall
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authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for Securities of such
series or Tranche.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series, or any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities (other
than any previously called for redemption) of a series or Tranche in respect of
which a mandatory sinking fund payment is to be made and (b) may apply as a
credit Securities of such series or Tranche which have been (1) redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities or (2) repurchased by the Company in the open
market, by tender offer or otherwise, in each case in satisfaction of all or any
part of such mandatory sinking fund payment; provided, however, that no
Securities shall be applied in satisfaction of a mandatory sinking fund payment
if such Securities shall have been previously so applied. Securities so applied
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
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SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall deliver to
the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by delivering and crediting Securities of such series or
Tranche pursuant to Section 502 and stating the basis for such credit and
that such Securities have not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to be so delivered.
If the Company shall not deliver such Officer's Certificate, the next
succeeding sinking fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund payment. Not less
than 40 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 403 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and interest,
if any, on the Securities of each series in accordance with the terms of such
Securities and this Indenture.
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SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the Securities of
each series, or any Tranche thereof, an office or agency where payment of such
Securities shall be made, where the registration of transfer or exchange of such
Securities may be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency and prompt notice to the Holders
of any such change in the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or shall fail to furnish the
Trustee with the address thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate one or more other offices
or agencies with respect to the Securities of one or more series, or any Tranche
thereof, for any or all of the foregoing purposes and may from time to time
rescind such designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of such series or
Tranche, no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such purposes in
each Place of Payment for such Securities in accordance with the requirements
set forth above. The Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified in Section 106, of any
such designation or rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the Company, in which
event the Company shall perform all functions to be performed at such office or
agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to the Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, and interest, if any, on
any of such Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and premium or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company shall promptly notify the
Trustee of any failure by the
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Company (or any other obligor on such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any series,
or any Tranche thereof, other than the Company or 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
shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if any, on such Securities 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;
(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent and, if so
stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and premium, if any,
or interest, if any, on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest, if any, has become due and
payable shall
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be paid to the Company on Company Request, or, if then held by the Company,
shall be discharged from such trust; and, upon such payment or discharge, the
Holder of such Security shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be mailed, on one
occasion only, notice to such Holder 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 mailing, any unclaimed balance of such money then remaining will be
paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in common with
others, make reasonable effort to cause) all its properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order and shall cause (or, with respect to property owned in common
with others, make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried on in
connection therewith may be properly conducted; provided, however, that nothing
in this Section shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than October 1 in each year, commencing October 1, 1997, the
Company shall deliver to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
as to such officer's knowledge of the Company's compliance with all conditions
and covenants under this Indenture, such compliance to be determined without
regard to any period of grace or requirement of notice under this Indenture.
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SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in (a) Section 602 or any additional covenant
or restriction specified with respect to the Securities of any series, or any
Tranche thereof, as contemplated by Section 301 if before the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches with respect to which
compliance with Section 602 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605 or Article Eleven if before the
time for such compliance the Holders of at least a majority in principal amount
of Securities Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount thereof,
shall be deemed to have been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof shall be deemed to have
been satisfied and discharged, if there shall have been irrevocably deposited
with the Trustee or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by
the Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
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to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment or
redemption of less than all the Securities of any series or Tranche, such
Securities or portions thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to the Trustee to
give such notice, under arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to the Maturity of
such Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 703;
(y) if Eligible Obligations shall have been deposited, an Opinion of
Counsel that the obligations so deposited constitute Eligible Obligations
and do not contain provisions permitting the redemption or other prepayment
at the option of the issuer thereof, and an opinion of an independent
public accountant of nationally recognized standing, selected by the
Company, to the effect that the requirements set forth in clause (b) above
have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity of
such Securities, an Officer's Certificate stating the Company's intention
that, upon delivery of such Officer's Certificate, its indebtedness in
respect of such Securities or portions thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in accordance
with this Section, together with the documents required by clauses (x), (y) and
(z) above, the Trustee shall, upon receipt of a Company Request, acknowledge in
writing that the Security or Securities or portions thereof with respect to
which such deposit was made are deemed to have been paid for all purposes of
this Indenture and that the entire indebtedness of the Company in respect
thereof has been satisfied and discharged as contemplated in this Section. In
the event that all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions thereof except
that, for any reason, the Officer's Certificate specified in clause (z) shall
not have been delivered, such Securities or portions thereof shall nevertheless
be deemed to have been paid for all purposes of this Indenture, and the Holders
of such Securities of portions thereof shall nevertheless be no longer entitled
to the benefits of this Indenture or of any of the covenants of the Company
under Article Six (except the covenants contained in Sections 602, 603
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and 604) or any other covenants made in respect of such Securities or portions
thereof as contemplated by Section 301, but the indebtedness of the Company in
respect of such Securities or portions thereof shall not be deemed to have been
satisfied and discharged prior to Maturity for any other purpose, and the
Holders of such Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented thereby; and,
upon Company Request, the Trustee shall acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all of the Securities of any
series, or any Tranche thereof, is to be provided for in the manner and with the
effect provided in this Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the Securities of a
series or Tranche.
In the event that Securities which shall be deemed to have been paid for
purposes of this Indenture, and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and discharged, all as provided
in this Section do not mature and are not to be redeemed within the sixty (60)
day period commencing with the date of the deposit of moneys or Eligible
Obligations, as aforesaid, the Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid for
purposes of this Indenture, as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304, 305, 306, 403, 404,
406, 503 (as to notice of redemption), 602, 603, 907, 909, 910 and 915 and this
Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying Agent
with which Eligible Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on or assessed against
such Eligible Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any such tax payable
by any entity deemed, for tax purposes, to have been created as a result of such
deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time after
a Security would be deemed to have been paid for purposes of this Indenture,
and, if such is the case, the Company's indebtedness in respect thereof would be
deemed to have been satisfied or discharged, pursuant to this Section (without
regard to the provisions of this paragraph), the Trustee or any Paying Agent, as
the case may be, shall be required to return the money or Eligible Obligations,
or combination
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thereof, deposited with it as aforesaid to the Company or its representative
under any applicable Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed retroactively not to have been paid
and any satisfaction and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any satisfaction and
discharge of the Company's indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as hereinafter expressly provided), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
provided, however, that it, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 403, 404, 406, 503 (as to notice of redemption), 602, 603, 907, 909,
910 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and all money, securities and
other property then held by the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 701, nor the principal or interest payments on any such Eligible
Obligations, shall be
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withdrawn or used for any purpose other than, and such Eligible Obligations and
money deposited and the principal and interest payments on any such Eligible
Obligations shall be held in trust for, the payment of the principal of and
premium, if any, and interest, if any, on the Securities or portions of
principal amount thereof in respect of which such deposit was made, all subject,
however, to the provisions of Section 603; provided, however, that, so long as
there shall not have occurred and be continuing an Event of Default, any cash
received from such principal or interest payments on such Eligible Obligations,
if not then needed for such purpose, shall, to the extent practicable, be
invested in Eligible Obligations of the type described in clause (b) in the
first paragraph of Section 701 maturing at such times and in such amounts as
shall be sufficient to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or portions thereof
on and prior to the Maturity thereof, and interest earned from such reinvestment
shall be paid over to the Company as received, free and clear of any trust, lien
or pledge under this Indenture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have occurred and be
continuing an Event of Default, any moneys held in accordance with this Section
on the Maturity of all such Securities in excess of the amount required to pay
the principal of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and clear of any trust, lien
or pledge under this Indenture except the lien provided by Section 907, and
provided, further, that if an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company pursuant to this Section shall
be held until such Event of Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of such series
within 60 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series within three Business Days after its Maturity; or
(c) failure to perform, or breach of, any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default in
the performance of which or breach of which is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture
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solely for the benefit of one or more series of Securities other than such
series) for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount of the
Outstanding Securities of such 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, unless the Trustee, or the
Trustee and the Holders of a principal amount of Securities of such series
not less than the principal amount of Securities the Holders of which gave
such notice, as the case may be, shall agree in writing to an extension of
such period prior to its expiration; provided, however, that the Trustee,
or the Trustee and the Holders of such principal amount of Securities of
such series, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the Company
within such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
by one or more Persons other than the Company seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official for the Company or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any such decree
or order for relief or any such other decree or order shall have remained
unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its
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debts generally as they become due, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with respect to Securities
of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing with respect
to Securities of any series at the time Outstanding, then in every such case the
Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon receipt by the Company of notice of such
declaration such principal amount (or specified amount) shall become immediately
due and payable; provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of Securities,
the Trustee or the Holders of not less than 33% in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class (and not
the Holders of the Securities of any one of such series), may make such
declaration of acceleration.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities;
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(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee under Section 907; and
(b) any other Event or Events of Default with respect to Securities
of such series, other than the non-payment of the principal of Securities
of such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section 801 shall
have occurred and be continuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securities of the series with
respect to which such Event of Default shall have occurred, the whole amount
then due and payable on such Securities for principal and premium, if any, and
interest, if any, and, to the extent permitted by law, interest on premium, if
any, and on any overdue principal and interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under Section 907.
If the Company shall fail 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, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series shall have
occurred and be continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 804. 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 Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
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SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if
any, or interest, if any, upon presentation of the Securities in respect of
which or for the benefit of which such money shall have been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 907;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any,
and interest, if any, respectively; and
THIRD: To the Company.
SECTION 807. LIMITATION ON SUITS.
No Holder 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:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series in respect of which an
Event of Default shall have occurred and be continuing, considered as one
class, 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;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such proceeding;
and
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(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
series in respect of which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and (subject to Section 307)
interest, if any, on such Security on the Stated Maturity or Maturities
expressed in such Security (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 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 306, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or
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otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in respect of
a series of Securities, the Holders of a majority in principal amount of the
Outstanding Securities of such 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, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's sole
discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 813. 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 waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
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(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and all
Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, 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 aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(l) this clause (c) shall not be construed to limit the effect
of clause (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
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the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any one or more series, as provided herein,
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with respect to the
Securities of any series to the Holders of Securities of such series in the
manner and to the extent required to do so by the Trust Indenture Act, unless
such default shall have been cured or waived; provided, however, that in the
case of any default of the character specified in clause (c) of Section 801, no
such notice to Holders shall be given until at least 75 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time, or both, would become, an
Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable provisions
of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as
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otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any Holder pursuant to this Indenture, unless such Holder shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled to examine,
during normal business hours, the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) except as otherwise provided in Section 801, the Trustee shall
not be charged with knowledge of any Event of Default with respect to the
Securities of any series for which it is acting as Trustee unless either
(1) a Responsible Officer of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event of Default shall have
been given
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to the Trustee by the Company, any other obligor on such Securities or by
any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 906. 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
except as expressly provided herein or otherwise agreed with, and for the sole
benefit of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except to the extent
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that any such expense, disbursement or advance may be attributable to its
negligence, willful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and against, any
loss, liability or expense reasonably incurred by it arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder 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 negligence, willful misconduct or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such other than property
and funds held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence, willful misconduct
or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest within the
meaning of the Trust Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the effect, and subject
to the conditions, provided in the Trust Indenture Act and this Indenture. For
purposes of Section 310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee, in its capacity as trustee in respect of the
Securities of any series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities of any other
series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States, any State or Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized
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under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 or the Dollar equivalent of the
applicable foreign currency and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees, and, in either case, qualified and eligible
under this Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of such 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 910. 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 911.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
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(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, (A) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (B) subject to Section 814,
any Holder who has been a bona fide Holder for at least six months may, on
behalf of itself 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
(other than as contemplated in clause (B) in clause (d) of this Section),
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 911.
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 Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 911, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of time,
or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
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pursuant to subsection (e) of this Section, if the Company shall have
delivered to the Trustee (1) a Board Resolution appointing a successor
Trustee, effective as of a date specified therein, and (2) an instrument of
acceptance of such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection (b) of this Section,
the successor Trustee shall be deemed to have been appointed by the Company
pursuant to subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911, all as of such
date, and all other provisions of this Section and Section 911 shall be
applicable to such resignation, appointment and acceptance except to the
extent inconsistent with this clause (f).
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their names
and addresses appear in the Security Register. 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 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all sums owed to it, 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts
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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, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee, upon payment of all sums owed to it, shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred to in clause (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then
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in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or any other
obligor upon the Securities (other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee shall be subject to any
and all applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor. For purposes of
Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company or such obligor for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company or such obligor arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal requirements of
any applicable jurisdiction, the Company and the Trustee shall have power to
appoint, and, upon the written request of the Trustee or of the Holders of at
least 33% in principal amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other
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provisions of this Section. If the Company does not join in such appointment
within 15 days after the receipt by it of a request so to do, or if an Event of
Default shall have occurred and be continuing, the Trustee alone shall have
power to make such appointment.
Should any written instrument or instruments from the Company be required
by any co-trustee or separate trustee so appointed to more fully confirm to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Company.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the Trustee
shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Company, may accept the resignation of or
remove any co-trustee or separate trustee appointed under this Section,
and, if an Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Company.
Upon the written request of the Trustee, the Company shall join with the
Trustee in the execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;
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(d) no co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Trustee, or any other such
trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any State or Territory thereof or the
District of Columbia or the Commonwealth of Puerto Rico, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. 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. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, in accordance with, and
subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be applicable to each
Authenticating Agent.
If an appointment with respect to the Securities of one or more series, or
any Tranche thereof, shall be made pursuant to this Section, the Securities of
such series or Tranche may have endorsed thereon, in addition to 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.
First Trust National Association,
Trustee
By:
---------------------------------
As Authenticating Agent
By:
---------------------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have
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Securities of such series authenticated upon original issuance, the Trustee, if
so requested by the Company in writing (which writing need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel), shall
appoint, in accordance with this Section and in accordance with such procedures
as shall be acceptable to the Trustee, an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than March 1 and September 1 in each year,
commencing March 1, 1997, and at such other times as the Trustee may request in
writing, the Company shall furnish or cause to be furnished to the Trustee
information as to the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved by it, all
to such extent, if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than July 1 in each year, commencing July 1, 1997, the Trustee
shall transmit to the Holders and the Commission a report, dated as of the next
preceding May 1, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall transmit to the Holders
and the Commission, and the Company shall file with the Trustee (within thirty
(30) days after filing with the Commission in the case of reports which pursuant
to the Trust Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information, reports and
other documents, if any, at such times and in such manner, as shall be required
by the Trust Indenture Act.
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other corporation,
or convey or otherwise transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a Person organized and existing under the laws of the
United States, any State thereof or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any, and interest, if
any, on all Outstanding Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction and treating
any indebtedness for borrowed money which becomes an obligation of the
Company as a result of such transaction as having been incurred by the
Company at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transactions have been
complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company into
any other corporation or any conveyance, or other transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1101, the successor corporation formed by such consolidation or
into which the Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in
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the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company 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:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities, all as provided in Article Eleven; or
(b) to add one or more covenants of the Company or other provisions
for the benefit of all Holders or for the benefit of the Holders of, or to
remain in effect only so long as there shall be Outstanding, Securities of
one or more specified series, or one or more specified Tranches thereof, or
to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all or
any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of the
Holders of Securities of any series or Tranche Outstanding on the date of
such indenture supplemental hereto in any material respect, such change,
elimination or addition shall become effective (1) with respect to such
series or Tranche only pursuant to the provisions of Section 1202 hereof or
(2) when no Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for all but not part of the
Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if any,
thereon and for the procedures for the registration, exchange and
replacement
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thereof and for the giving of notice to, and the solicitation of the vote
or consent of, the holders thereof, and for any and all other matters
incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of clause (b) of Section 911; or
(i) to provide for the procedures required to permit the Company to
utilize, at its option, a non-certificated system of registration for all,
or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; or
(k) 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 changes to the provisions hereof or to add
other provisions with respect to matters or questions arising under this
Indenture, provided that such other changes or additions shall not
adversely affect the interests of the Holders of Securities of any series
or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture
Act as in effect at the date of the execution and delivery of this Indenture or
at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such changes or incorporate
such provisions by reference or otherwise, this Indenture shall be deemed
to have been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee may, without the consent of
any Holders, enter into an indenture supplemental hereto to effect or
evidence such changes or additional provisions; or
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(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are required by the Trust
Indenture Act to be contained herein, this Indenture shall be deemed to
have been amended to effect such changes or elimination, and the Company
and the Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to evidence such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities of all series then Outstanding under this
Indenture, considered as one class, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Securities of one or more, but less than all, of such series, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable upon the redemption thereof, or
reduce the amount of the principal of a Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 802, or change the coin or currency (or other
property), in which any Security or any premium 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 of any Security (or, in the
case of redemption, on or after the Redemption Date), without, in any such
case, the consent of the Holder of such Security, or
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(b) reduce the percentage in principal amount of the Outstanding
Securities of any series or any Tranche thereof, the consent of the Holders
of which is required for any such supplemental indenture, or the consent of
the Holders of which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1304 for quorum or
voting, without, in any such case, the consent of the Holders of each
Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, or any Tranche
thereof, or except to increase the percentages in principal amount referred
to in this Section or such other Sections or to provide that other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of clause (b) of Section 911
and clause (h) of Section 1201.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches 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 or Tranche.
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 waiver by a
Holder of such Holder's right to consent under this Section shall be deemed to
be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
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SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by this Article
may restate this Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1205. 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 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officer's Certificate pursuant to a
Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required to be
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officer's Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
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ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, 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 or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the Company, at any other
place. Notice of every such meeting, 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) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, by the Company or by the Holders of 33% in aggregate
principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 1301, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given 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
Company or the Holders of Securities of such series and Tranches 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 such other
place as shall be determined or approved by the Company, for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in clause (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice
if the Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company and the
Trustee are
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present, or if notice is waived in writing before or after the meeting by
the Holders of all Outstanding Securities of such series, or by such of
them as are not present at the meeting in person or by proxy, and by the
Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, a Person shall be (a)
a Holder of one or more Outstanding Securities of such series or Tranches, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche 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 Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for such period as may be 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 such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as provided
by clause (e) of Section 1305, notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided in clause (a) of
Section 1302 not less than ten days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall constitute
a quorum.
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Except as limited by Section 1202, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may
be adopted only by the affirmative vote of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and Tranches,
considered as one class, 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 such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Securities
with respect to which it was given unless and until specifically revoked by
the Holder or future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to proof of the holding of
such Securities 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. 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.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
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called by the Company or by Holders as provided in clause (b) of Section
1302, in which case the Company or the Holders of Securities of the series
and Tranches calling the meeting, as the case may be, shall in like 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 aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1 principal amount of Securities 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 or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a
quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
of all series and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders shall be
by written ballots on which shall be subscribed the signatures of the Holders or
of their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities, of the series and Tranches with respect to which
the meeting shall have been called, 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 of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders 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 facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. 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 Company, 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.
-73-
<PAGE>
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated in
this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or premium, if
any, or interest, if any, on any Securities, or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any predecessor or successor
corporation (either directly or through the Company or a predecessor or
successor corporation), whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
the Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer or director, past, present or future, of the Company or of any
predecessor or successor corporation, either directly or indirectly through the
Company or any predecessor or successor corporation, because of the indebtedness
hereby authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
-------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-74-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
OTTER TAIL POWER COMPANY
By:
-------------------------------------
ATTEST:
- ----------------------
FIRST TRUST NATIONAL ASSOCIATION,
TRUSTEE
By:
-------------------------------------
ATTEST:
- -----------------------
-75-
<PAGE>
STATE OF MINNESOTA )
) ss.
COUNTY OF OTTER TAIL )
On the ____ day of _________, 1996, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is the _________ of Otter Tail Power Company, the corporation
described in and which executed the foregoing instrument; that he knows the seal
of said corporation, that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority,
acknowledging the instrument to be the free act and deed of said corporation.
--------------------------------------------------
Notary Public
[Notarial Seal]
STATE OF ______ )
) ss.
COUNTY OF _____ )
On the ___ day of __________, 1996, before me personally came __________,
to me known, who, being by me duly sworn, did depose and say that he is a
__________ of First Trust National Association, the national banking association
described in and which executed the foregoing instrument; that he knows the seal
of said national banking association; that the seal affixed to said instrument
is the seal of said national banking association; that it was so affixed by
authority of the Board of Directors of said national banking association, and
that he signed his name thereto by like authority, acknowledging the instrument
to be the free act and deed of said national banking association.
--------------------------------------------------
Notary Public
[Notarial Seal]
-76-
<PAGE>
EXHIBIT 5-A
Otter Tail Power Company
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
Ladies and Gentlemen:
Reference is made to the proposed issuance and sale from time to time
by Otter Tail Power Company, a Minnesota corporation (the "Company"), of not to
exceed $50,000,000 aggregate initial offering price of its debt securities (the
"New Debt Securities") and the Company's Registration Statement on Form S-3 (the
"Registration Statement") with respect to such proposed issuance and sale to be
filed with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act"). The New Debt
Securities may be issued as First Mortgage Bonds (the "New First Mortgage
Bonds") pursuant to the provisions of the Company's Indenture of Mortgage dated
as of July 1, 1936 to First Trust Company of Saint Paul (now named First Trust
National Association) and Louis S. Headley (James A. Ehrenberg, successor
individual Trustee), Trustees, and the supplemental indentures thereto,
including the supplemental indenture creating a series of New First Mortgage
Bonds (such Indenture as so supplemented being hereinafter called the "First
Mortgage Indenture"), or as notes, debentures or other evidences of indebtedness
(the "New Debentures") pursuant to the Company's Indenture (For Unsecured Debt
Securities) to be entered into with First Trust National Association, Trustee
(such Indenture, as the same may be supplemented from time to time, including
any supplemental indenture creating a series of New Debentures, being
hereinafter called the "Debenture Indenture").
We are familiar with the proceedings to date with respect to the
proposed issuance and sale of the New Debt Securities and have examined such
records, documents and matters of law and satisfied ourselves as to such matters
of fact as we have considered relevant for the purposes of this opinion.
Based upon such examination, we are of the opinion that:
(1) The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Minnesota.
<PAGE>
Otter Tail Power Company
Page 2
(2) The Company is a public utility, as defined in the statutes of
the States of Minnesota, North Dakota and South Dakota, is fully authorized to
conduct its business in the States of Minnesota, North Dakota and South Dakota
as a public utility and, as such public utility, is subject to the jurisdiction
of the Minnesota Public Utilities Commission with respect to the issuance of its
securities and to the jurisdiction of the North Dakota Public Service Commission
with respect to the issuance of certain of its securities.
(3) Each series of New First Mortgage Bonds will be legally issued
and binding obligations of the Company, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally and by general principles of equity, when:
(a) the Registration Statement, as finally amended (including any
necessary post-effective amendment), shall have become effective under
the Securities Act and the First Mortgage Indenture, including the
supplemental indenture creating such series of New First Mortgage
Bonds, shall have been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act");
(b) a Prospectus Supplement with respect to the series of New First
Mortgage Bonds then being distributed shall have been filed (or
transmitted for filing) with the SEC pursuant to Rule 424 under the
Securities Act;
(c) the Company's Board of Directors (or a duly authorized committee
designated by such Board) shall have adopted the final resolutions
fixing the terms of such series of New First Mortgage Bonds, approving
the final form of supplemental indenture relating to such series
(including the form of New First Mortgage Bonds of such series set
forth therein), approving the final form of Underwriting Agreement or
Bond Purchase Agreement, as the case may be, relating to the sale of
the New First Mortgage Bonds of such series and requesting
authentication and delivery of the New First Mortgage Bonds of such
series under the First Mortgage Indenture;
(d) the supplemental indenture creating such series of New First Mortgage
Bonds shall have been duly executed, acknowledged and delivered by the
parties thereto and duly recorded and filed in accordance with
applicable laws of the States of Minnesota, North Dakota and South
Dakota;
<PAGE>
Otter Tail Power Company
Page 3
(e) such series of New First Mortgage Bonds shall have been duly executed
and authenticated and shall have been duly delivered to the purchasers
thereof upon payment of the agreed consideration therefor;
(f) the New First Mortgage Bonds of such series shall have been issued and
sold in accordance with the resolutions of the Board of Directors (or
the duly authorized committee designated by such Board) and in
accordance with the appropriate Order or Orders of the Minnesota
Public Utilities Commission;
(g) the requirements of the securities laws of the various states in which
the New First Mortgage Bonds of such series are to be offered shall
have been satisfied; and
(h) all statutory fees and taxes imposed upon or by reason of the issuance
and sale of the New First Mortgage Bonds of such series shall have
been paid.
(4) Each series of New Debentures will be legally issued and binding
obligations of the Company, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity, when:
(a) the Registration Statement, as finally amended (including any
necessary post-effective amendment), shall have become effective under
the Securities Act and the Debenture Indenture, including any
supplemental indenture creating such series, shall have been qualified
under the Trust Indenture Act;
(b) a Prospectus Supplement with respect to the series of New Debentures
then being distributed shall have been filed (or transmitted for
filing) with the SEC pursuant to Rule 424 under the Securities Act;
(c) the Company's Board of Directors (or a duly authorized committee
designated by such Board) shall have adopted the final resolutions
fixing the terms of such series of New Debentures, approving the final
form of Debenture Indenture and the final form of supplemental
indenture or officers' certificate relating to such series (including
the form of New Debentures of such series set forth therein) and
approving the final form of Underwriting Agreement or Bond Purchase
Agreement, as the case may be, relating to the sale of the New
Debentures of such series;
<PAGE>
Otter Tail Power Company
Page 4
(d) the Debenture Indenture, including any supplemental indenture or
officers' certificate creating such series, shall have been duly
executed, acknowledged and delivered by the parties thereto;
(e) such series of New Debentures shall have been duly executed and
authenticated and shall have been duly delivered to the purchasers
thereof upon payment of the agreed consideration therefor;
(f) the New Debentures of such series shall have been issued and sold in
accordance with the resolutions of the Board of Directors (or the duly
authorized committee designated by such Board) and in accordance with
the appropriate Order or Orders of the Minnesota Public Utilities
Commission;
(g) the requirements of the securities laws of the various states in which
the New Debentures of such series are to be offered shall have been
satisfied; and
(h) all statutory fees and taxes imposed upon or by reason of the issuance
and sale of the New Debentures of such series shall have been paid.
We hereby consent to the filing of this opinion as Exhibit 5-A to the
Registration Statement and to the reference to our Firm under the caption "Legal
Opinions" in the Prospectus comprising a part of the Registration Statement.
Dated: August 30, 1996
Very truly yours,
/s/ Dorsey & Whitney LLP
<PAGE>
EXHIBIT 12-A
OTTER TAIL POWER COMPANY
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
For the
Six Months
Year Ended December 31 Ended June 30
----------------------------------------------------------------- -------------------------
1991 1992 1993 1994 1995 1995 1996
----------- ----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Consolidated Net Income 1 $26,095,565 $26,538,112 $27,369,011 $28,474,794 $28,945,442 $14,043,713 $16,011,605
Add:
Income Taxes:
Above the line $14,827,734 $14,024,432 $14,331,210 $15,930,736 $16,583,504 $9,139,136 $8,849,516
Below the line $405,188 ($154,468) ($286,878) ($49,702) ($424,947) ($643,326) ($534,531)
TOTAL INCOME TAX EXPENSE 2 $15,232,922 $13,869,964 $14,044,332 $15,881,034 $16,158,557 $8,495,810 $8,314,985
Add:
Total Interest* 3 $12,236,597 $13,222,271 $13,880,870 $13,749,080 $15,222,444 $7,402,651 $7,850,535
ADJUSTED EARNINGS 4 $53,565,084 $53,630,347 $55,294,213 $58,104,908 $60,326,443 $29,942,174 $32,177,125
(1)+(2)+(3)
Ratio of Earnings to Fixed Charges 4.38 4.06 3.98 4.23 3.96 4.04 4.10
(4) DIVIDED BY (3)
</TABLE>
* Includes interest on long-term debt, other interest charges and amortization
of debt expense, premium and discount.
<PAGE>
EXHIBIT 23-A-1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Otter Tail Power Company on Form S-3 of our report dated January 29, 1996
incorporated by reference in the Annual Report Form 10-K of Otter Tail Power
Company for the year ended December 31, 1995 and to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
Minneapolis, Minnesota
August 30, 1996
<PAGE>
EXHIBIT 24-A
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John C. MacFarlane, Jay D. Myster,
Andrew E. Anderson and Charles E. Brunko, and each or any one of them, his/her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him/her and in his/her name, place and stead, in any and
all capacities, to sign the Registration Statement on Form S-3, and any and all
amendments (including post-effective amendments) thereto, for the offer and sale
of up to $50,000,000 aggregate initial offering price of Debt Securities of
Otter Tail Power Company and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he/she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed on the 15TH
day of JULY, 1996, by the following persons:
/S/ JOHN C. MACFARLANE /S/ MAYNARD D. HELGAAS
- ------------------------- -------------------------
John C. MacFarlane Maynard D. Helgaas
/S/ ANDREW E. ANDERSON /S/ ARVID R. LIEBE
- ------------------------- -------------------------
Andrew E. Anderson Arvid R. Liebe
/S/ JEFFREY J. LEGGE /S/ KENNETH L. NELSON
- ------------------------- -------------------------
Jeffrey J. Legge Kenneth L. Nelson
/S/ THOMAS M. BROWN /S/ NATHAN I. PARTAIN
- ------------------------- -------------------------
Thomas M. Brown Nathan I. Partain
/S/ DAYLE DIETZ /S/ ROBERT N. SPOLUM
- ------------------------- -------------------------
Dayle Dietz Robert N. Spolum
/S/ DENNIS R. EMMEN
- -------------------------
Dennis R. Emmen
<PAGE>
EXHIBIT 25-A-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(B)(2) . . . [ ]
FIRST TRUST NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
OTTER TAIL POWER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Minnesota 41-0462685
(State of Incorporation) (I.R.S. Employer Identification No.)
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
(Address of Principal Executive Offices) (Zip Code)
___% FIRST MORTGAGE BONDS
(TITLE OF THE INDENTURE SECURITIES)
<PAGE>
GENERAL
1. GENERAL INFORMATION. Furnish the following information as to the
trustee -
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None
See Note following Item 16.
ITEMS 3-15 ARE NOT APPLICABLE BECAUSE TO THE BEST OF THE TRUSTEE'S KNOWLEDGE THE
OBLIGOR IS NOT IN DEFAULT UNDER ANY INDENTURE FOR WHICH THE TRUSTEE ACTS AS
TRUSTEE.
16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.
2. Copy of Certificate of Authority to Commence Business.
3. Authorization of the Trustee to exercise corporate trust powers.
4. Copy of existing By-Laws.
5. Copy of each Indenture referred to in item 4.
6. The consents of the trustee required by Section 321(b) of the Act.
7. Copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what persons are
owners of 10% or more of the voting securities of the obligor or its affiliates,
and what persons are controlling, controlled by or under common control with,
the obligor or its affiliates, are based upon information furnished to the
trustee by the obligor. While the trustee has no reason to doubt the accuracy
of any such information, it cannot accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
First Trust National Association, a National Trust Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of St. Paul and State of Minnesota on the 27th day
of August, 1996.
FIRST TRUST NATIONAL ASSOCIATION
/s/ James A. Ehrenberg
- ------------------------------
James A. Ehrenberg
Senior Vice President
/s/ Diane Chalupsky
- ------------------------------
Diane Chalupsky
Assistant Secretary
<PAGE>
Exhibit 1
FIRST TRUST NATIONAL ASSOCIATION
I, Elizabeth Becker, the Secretary of First Trust National Association, a
national banking association organized under the laws of the United States,
hereby certify that the attached copy of the Articles of Association of First
Trust National Association is full, true and complete copy of the original. I
further certify that such Articles of Association have not been revoked and
remain in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of First
Trust National Association to be affixed hereto this 18th day of February,
1992.
(Corporate Seal) /s/ Elizabeth Becker
----------------------------
Elizabeth Becker
Secretary
Sworn to before me this
18th day of February, 1992.
/s/ Jeanne M. Erickson
- ---------------------------------
Notary Public
certified/bylaws [logo]
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
FIRST. The title of the Association, which shall carry on the business
of banking under the laws of the United States, shall be "First Trust
National Association". Notwithstanding the foregoing, however, the Associaton
shall not engage in any banking activities other than those within the scope
of 12 U.S.C. Section 92a, and 12 C.F.R. 9, without the prior written approval
of the Comptroller of the Currency.
SECOND. The main office of the Association shall be in Saint Paul,
County of Ramsey, State of Minnesota. The general business of the Association
shall be conducted at its main office and branches.
THIRD. The board of directors of the Association shall consist of not
less than five nor more than 25 members. At any meeting of the shareholders
held for the purpose of electing directors, or changing the number thereof,
the number of directors may be determined by a majority votes cast by the
shareholders in person or by proxy. Between meetings of the shareholders held
for the purpose of electing directors, the board of directors by a majority
vote of the full board may increase the size of the board by not more than
four directors in any one year, but not to more than a total of 25 directors,
and fill any vacancy created on the board. A majority of the board of
directors shall be necessary to constitute a quorum for the transaction of
business at any directors' meeting. Each director during the full term of
directorship, shall own a minimum of One Thousand Dollars ($1,000.00) par
value of stock of the Association, or an equivalent interest in stock of
First Bank System, Inc.
FOURTH. The regular annual meeting of the shareholders of the
Association shall be held at its main office, or other convenient place duly
authorized by the board of directors, on such day of each year as is
specified therefore in the Bylaws, but if no election is held on that day, it
may be held on any subsequent day according to such lawful rules as may be
prescribed by the board of directors.
FIFTH. The amount of capital stock of the Association shall be divided
into 10,000 shares of common stock at the par value of One Hundred Dollars
($100.00) each; but such capital stock may be increased or decreased from
time to time, in accordance with the provisions of the laws of the United
States.
If the capital stock is increased by the sale of additional shares
thereof, each shareholder shall be entitled to subscribe for such additional
shares in proportion to the number of shares of each capital stock owned by
each such shareholder at the time
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
the increase is authorized by the shareholders, unless another time
subsequent to the date of the shareholders' meeting is specified in a
resolution adopted by the shareholders at the time the increase is
authorized. The board of directors shall have the power to prescribe a
reasonable period of time within which the pre-emptive rights to subscribe to
the new shares of capital stock must be exercised.
If the capital stock is increased by a stock dividend, each shareholder
shall be entitled to such shareholder's proportionate amount of such increase
in accordance with the number of shares of capital stock owned by such
shareholder at the time the increase is authorized by the shareholders,
unless another time subsequent to the date of the shareholders' meeting is
specified in a resolution adopted by the shareholders at the time the
increase is authorized.
The Association, at any time and from time to time, may authorize and
issue debt obligations, whether or not subordinated, without the approval of
the shareholders. In the event such debt obligations are convertible to
capital stock of the Association, each shareholder shall be entitled to
subscribe for such additional shares in proportion to the number of shares of
capital stock owned by such shareholder one month prior to the issuance of
capital stock in satisfaction of such convertible debt obligations.
SIXTH. The board of directors shall appoint one of its members as the
Association's chief executive officer (however titled) who shall have and
exercise the rights and responsibilities of "president" as established by
law. Such chief executive officer shall be chairman of the board, unless the
board appoints another director to be chairman. The board shall have the
power to appoint (or provide for the appointment of) such officers and
employees as may be required to transact the business of the Association; to
fix the salaries to be paid to such officers and employees of the
Association; and to dismiss any of such officers or employees and appoint
others to take their places.
The board of directors shall have the power to define the duties of
officers and employees of the Association and to require adequate bonds from
them for the faithful performance of their duties; to regulate the manner in
which any increase of the capital of the Association shall be made; to make
all Bylaws that may be lawful for the general regulation of the business of
the Association and the management of its affairs; and generally to do and
perform all acts that may be lawful for a board of directors to do and
perform.
-2-
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
SEVENTH. The board of directors shall have the power to change the
location of the main office of the Association to any other place within the
limits of Saint Paul, Minnesota, without the approval of the shareholders of
the Association but subject to the approval of the Comptroller of
the Currency; and shall have the power to change the location of any branch
or branches of the Association to any other location, without the approval of
the shareholders of the Association but subject to the approval of the
Comptroller of the Currency.
EIGHTH. The Association shall have succession from the date of its
organization certificate until such time as it be dissolved by the act of its
shareholders in accordance with the provisions of the laws of the United
States, or until its franchise becomes forfeited by reason of violation of
law, or until terminated by either a general or a special act of Congress, or
until its affairs be placed in the hands of a receiver and finally wound up
by such receiver.
NINTH. The board of directors of the Association, or any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock
of the Association, may call a special meeting of shareholders at any time.
Provided, however, that unless otherwise provided by law, not less than ten
days prior to the date fixed for any such meeting, a notice of the time,
place, and purpose of the meeting shall be given by first-class mail, postage
prepaid, to all shareholders of record of the Association at their respective
addresses as shown upon the books of the Association.
TENTH. Any action required to be taken at a meeting of the shareholders
or directors or any action which may be taken at a meeting of the
shareholders or directors may be taken without a meeting if consent in
writing, setting forth the action as taken shall be signed by all the
shareholders or directors entitled to vote with respect to the matter
thereof. Such action shall be effective on the date on which the last
signature is placed on the writing, or such earlier date as is set forth
therein.
ELEVENTH. Meetings of the board of directors or shareholders, regular or
special, may be held by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can simultaneously hear each other, and participation in such meeting
by such aforementioned means shall constitute presence in person at such
meeting.
TWELFTH. Any person, such person's heirs, executors, or administrators,
may be indemnified or reimbursed by the Association for reasonable expenses
actually incurred in connection with any action, suit or proceeding, civil or
-3-
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
criminal to which such person or such person's heirs, executors, or
administrators shall be made a party by reason of such person being or having
been a director, advisory director, officer, employee, or agent of the
Association or of any firm, corporation, or organization which such person
served in any such capacity at the request of the Association. Provided,
however, that no person shall be so indemnified or reimbursed in relation to
any matter in such action, suit or proceeding as to which such person shall
finally be adjudged to have been guilty of or liable for gross negligence,
willful misconduct or criminal acts in the performance of such person's
duties to the Association. And, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of
record of a majority of the outstanding shares of the Association, or the
board of directors acting by vote of directors not parties to the same or
substantially the same action, suit or proceeding, constituting a majority of
the whole number of directors. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which such persons,
their heirs, executors, or administrators, may be entitled as a matter of law.
The Association may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying its
directors, advisory directors, officers, employees and agents to the extent
that such indemnification is allowed in the preceding paragraph. Such
insurance shall not provide coverage of liability for any formal order issued
by a regulatory authority assessing civil money penalties against an officer,
director or employee. Further, such insurance may, but need not be, for the
benefit of all directors, advisory directors, officers, employees or agents.
Expenses incurred by an officer, director or employee in defending a
civil or criminal action, suit or proceeding may be paid by the Association
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such individual or officer to
repay such amount if it shall ultimately be determined that such individual
is not entitled to be indemnified by the Association. Prior to the
advancement of any such expenses, the board of directors shall determine in
writing that all of the following conditions are met: (1) the officer,
director or employee has a substantial likelihood of prevailing on the
merits; (2) in the event the officer, director or employee does not prevail,
he or she will have the financial capability to reimburse the Association; and
(3) payment of such expenses by the Association will not adversely affect
bank safety and soundness. If at any time the board of directors believes, or
should reasonably believe, that any of the above conditions are not met, the
-4-
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
Association shall cease paying such expenses. Further, the Association shall
enter into a written agreement with the director, officer or employee
specifying the conditions under which such individual shall reimburse the
Association.
THIRTEENTH. These Articles of Association may be amended at any regular
or special meeting of the shareholders by the affirmative vote of the holders
of a majority of the stock of the Association, unless the vote of the holders
of a greater amount of stock is required by law and in that case by the vote
of the holders of such greater amount. The notice of any shareholders'
meeting at which an amendment to the Articles of Association of the
Association is to be considered, shall be given as hereinabove set forth.
---- ---- ----
-5-
<PAGE>
Exhibit 2
OFFICE OF COUNTY RECORDER
RAMSEY COUNTY, MINNESOTA
I, JOHN C. MCLAUGHLIN, County Recorder of said County and
State, do hereby certify that I have compared the foregoing paper photograph
with the original record now remaining in this office, and that the same is a
correct photographic transcript therefrom and of the whole of said original
record as the same appears in Ramsey County Records as Document Number
2426124.
(County Recorder Seal) In Witness Whereof, I have hereunto
subscribed my name and affixed my
official seal of the City of St. Paul,
in said County, this 4th day of
February, A.D. 1988
JOHN C. MCLAUGHLIN, County Recorder
By: Barbara Vikliman Deputy
-------------------------
ROS201
<PAGE>
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
Washington, D.C.
WHEREAS, satisfactory evidence has been presented to the Comptroller of
the Currency that FIRST TRUST COMPANY, INC., located in ST. PAUL State of
MINNESOTA has complied with all provisions of the states of the United States
required to be complied with before being authorized to commence the business
of banking as a National Banking Association.
NOW, THEREFORE. Thereby certify that the above named association is
authorized to commence the business of banking as a National Banking
Association under the title "FIRST TRUST NATIONAL ASSOCIATION" effective
DECEMBER 31, 1987
( SEAL ) In testimony whereof, witness my signature and seal of
office this 31st day of December 1987
Charter No. 21467 /s/ Robert R. Klinzing
-------------------------------
Robert R. Klinzing
Deputy Comptroller of the Currency
Midwestern District
<PAGE>
Exhibit 3
Comptroller of the Currency
Administrator of National Banks
Midwestern District
2345 Grand Avenue, Suite 700
Kansas City, Missouri 64105
December 31, 1987
Mr. Mark W. Sheffert
Chairman of the Board & CEO
First Trust National Association
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
Dear Mr. Sheffert:
The Office of the Comptroller of the Currency has received, reviewed, and
found no exception to the documents submitted by your bank to complete the
conversion process.
Your charter certificate is enclosed. You are authorized to commence business
as a national trust association on December 31, 1987. This national trust
company will not engage in any banking activities other than those within the
scope of 12 U.S.C. 92a, and 12 C.F.R. 9, without the prior written approval of
the OCC.
This letter also hereby constitutes official authorization by the Office to
exercise fiduciary powers. A separate fiduciary powers permit will be sent
under separate cover by the Trust Activities Division in Washington, D.C.
Sincerely,
/s/ Thomas C. McAllister
- ----------------------------
Thomas C. McAllister
Director for Analysis
Midwestern District
<PAGE>
- ------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- ------------------------------------------------------------------------------
Washington, D.C. 20219
TRUST CERTIFICATE
WHEREAS, FIRST TRUST NATIONAL ASSOCIATION, located in St. Paul, State of
Minnesota, being a National Banking Association, organized under the statutes
of the United States, has made application for authority to act as fiduciary;
AND WHEREAS, applicable provisions of the statutes of the United States
authorize the grant of such authority;
NOW THEREFORE, I hereby certify that the said association was granted the
authority to act in all fiduciary capacities permitted by such statutes,
effective December 31, 1987.
( SEAL ) IN TESTIMONY WHEREOF, witness my
signature and seal of Office this
Eighth day of September 1989.
/s/ ROBERT L. CLARKE
--------------------------------
ROBERT L. CLARKE
COMPTROLLER OF THE CURRENCY
CHARTER NO. 21467
<PAGE>
Exhibit 4
FIRST TRUST NATIONAL ASSOCIATION
I, Elizabeth Becker, the Secretary of First Trust National Association, a
national banking association organized under the laws of the United States,
hereby certify that the attached copy of the Bylaws of First Trust National
Association is a full, true and complete copy of the original. I further
certify that such Bylaws have not been revoked and remain in full force and
effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of First
Trust National Association to be affixed hereto this 27th day of July, 1993.
(Corporate Seal) /s/ Elizabeth Becker
----------------------------
Elizabeth Becker
Secretary
Sworn to before me this
27th day of July, 1993.
/s/ Jeanne M. Erickson
- ------------------------------
Notary Public
certified/bylaws [logo]
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1.1. ANNUAL MEETING. The annual meeting of the shareholders, for
the election of directors and the transaction of other business, shall be held
at a time and place as the Chairman or President may designate. Notice of such
meeting shall be given at least ten days prior to the date thereof, to each
shareholder of the Association. If, for any reason, an election of directors is
not made on the designated day, the election shall be held on some subsequent
day, as soon thereafter as practicable, with prior notice thereof.
Section 1.2. SPECIAL MEETINGS. Except as otherwise specially provided by
law, special meetings of the shareholders may be called for any purpose, at any
time by a majority of the board of directors, or by any shareholder or group of
shareholders owning at least ten percent of the outstanding stock. Every such
special meeting, unless otherwise provided by law, shall be called upon not less
than ten days prior notice stating the purpose of the meeting.
Section 1.3. NOMINATIONS FOR DIRECTORS. Nominations for election to the
board of directors may be made by the board of directors or by any shareholder.
Section 1.4. PROXIES. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing. Proxies shall be valid only
for one meeting and any adjournments of such meeting and shall be filed with the
records of the meeting.
Section 1.5. QUORUM. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any
meeting, unless otherwise provided by law or by the Articles of Association.
- 1 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE II
Section 2.1. BOARD OF DIRECTORS. The board of directors
(hereinafter referred to as the "board"), shall have power to manage and
administer the business and affairs of the Association. All authorized corporate
powers of the Association shall be vested in and may be exercised by the board.
Section 2.2 POWERS. In addition to the foregoing, the board of
directors shall have and may exercise all of the powers granted to or conferred
upon it by the Articles of Association, the Bylaws and by law.
Section 2.3. NUMBER. The board shall consist of a number of members
to be fixed and determined from time to time by resolution of the board or the
shareholders at any meeting thereof, in accordance with the Articles of
Association.
Section 2.4 ORGANIZATION MEETING. The newly elected board shall
meet for the purpose of organizing the new board and electing and appointing
such officers of the Association as may be appropriate. Such meeting shall be
held on the day of the election or as soon thereafter as practicable, and, in
any event, within thirty days thereafter. If, at the time fixed for such
meeting, there shall not be a quorum present, the directors present may adjourn
the meeting until a quorum is obtained.
Section 2.5 REGULAR MEETINGS. The regular meetings of the board
shall be held, without notice, as the Chairman or President may designate and
deem suitable.
Section 2.6 SPECIAL MEETINGS. Special meetings of the board may be
called by the Chairman or the President of the Association, or at the request of
two or more directors. Each member of the board shall be given notice stating
the time and place of each such meeting.
Section 2.7. QUORUM. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but fewer may
adjourn any meeting. Unless otherwise provided, once a quorum is established,
any act by a majority of those constituting the quorum shall be the act of the
board.
Section 2.8. VACANCIES. When any vacancy occurs among the directors,
the remaining members of the board may appoint a director to fill such vacancy
at any regular meeting of the board, or at a special meeting called for that
purpose.
- 2 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE III
Section 3.1. ADVISORY BOARD OF DIRECTORS. The board may appoint
persons, who need not be directors, to serve as advisory directors on an
advisory board of directors established with respect to the business affairs of
either this Association alone or the business affairs of a group of affiliated
organizations of which this Association is one. Advisory directors, shall have
such powers and duties as may be determined by the board, provided, that the
board's responsibility for the business and affairs of this Association shall in
no respect be delegated or diminished.
Section 3.2 AUDIT COMMITTEE. The board shall appoint an Audit
Committee which shall consist of at least two Directors which are not active
officers or employees of the Association. The Audit Committee shall direct and
review audits of the Association's fiduciary activities.
The members of the Audit Committee shall be appointed each year and
shall continue to act until their successors are named. The Audit Committee
shall have power to adopt its own rules and procedures and to do those things
which in the judgment of such Committee are necessary or helpful with respect to
the exercise of its functions or the satisfaction of its responsibilities.
Section 3.3 EXECUTIVE COMMITTEE. The board may appoint an
Executive Committee which shall consist of at least three directors and which
shall have, and may exercise, all the powers of the board between meetings of
the board or otherwise when the board is not meeting.
Section 3.4 OTHER COMMITTEES. The board may appoint, from time to
time, committees of one or more persons who need not be directors, for such
purposes and with such powers as the board may determine. In addition, either
the Chairman or the President may appoint, from time to time, committees of one
or more officers, employees, agents or other persons, for such purposes and with
such powers as either the Chairman or the President deems appropriate and
proper.
Whether appointed by the board, the Chairman, or the President, any
such Committee shall at all times be subject to the direction and control of the
board.
- 3 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
Section 3.5. MEETINGS, MINUTES AND RULES. An advisory board of
directors and/or committee shall meet as necessary in consideration of the
purpose of the advisory board of directors or committee, and shall maintain
minutes in sufficient detail to indicate actions taken or recommendations made;
unless required by the members, discussions, votes or other specific details
need not be reported. An advisory board of directors or a committee may, in
consideration of its purpose, adopt its own rules for the exercise of any of its
functions or authority.
ARTICLE IV
OFFICERS AND EMPLOYEES
Section 4.1 CHAIRMAN OF THE BOARD. The board may appoint one of
its members to be Chairman of the board to serve at the pleasure of the board.
The Chairman shall supervise the carrying out of the policies adopted or
approved by the board; shall have general executive powers, as well as the
specific powers conferred by these Bylaws; shall also have and may exercise such
powers and duties as from time to time may be conferred upon or assigned by the
board.
Section 4.2 PRESIDENT. The board may appoint one of its members to
be President of the Association. In the absence of the Chairman, the President
shall preside at any meeting of the board. The President shall have general
executive powers, and shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Office of President, or
imposed by these Bylaws. The President shall also have and may exercise such
powers and duties as from time to time may be conferred or assigned by the
Board.
Section 4.3 VICE PRESIDENT. The board may appoint one or more Vice
Presidents who shall have such powers and duties as may be assigned by the board
and to perform the duties of the President on those occasions when the President
is absent, including presiding at any meeting of the board in the absence of
both the Chairman and the President.
Section 4.4 SECRETARY. The board shall appoint a Secretary, or
other designated officer who shall be Secretary of the board and of the
Association, and shall keep accurate minutes of all meetings. The Secretary
shall attend to the giving of all notices required by these Bylaws to be given;
shall be custodian of the corporate seal, records, documents and papers of the
Association; shall provide for the keeping of proper records of all transactions
of the Association; shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Secretary, or imposed
by these Bylaws; and shall also perform such other duties as may be assigned
from time to time, by the Board.
- 4 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
Section 4.5 OTHER OFFICERS. The board may appoint, and may
authorize the Chairman or the President to appoint, any officer as from time to
time may appear to the board, the Chairman or the President to be required or
desirable to transact the business of the Association.
Such officers shall exercise such powers and perform such duties as
pertain to their several offices, or as may be conferred upon or assigned to
them by these Bylaws, the board, the Chairman or the President.
Section 4.6 TENURE OF OFFICE. The Chairman or the President and
all other officers shall hold office for the current year for which the board
was elected, unless they shall resign, become disqualified, or be removed.
Any vacancy occurring in the Office of Chairman or President shall
be filled promptly by the board.
Any officer elected by the board or appointed by the Chairman or the
President may be removed at any time, with or without cause, by the affirmative
vote of a majority of the board or, if such officer was appointed by the
Chairman or the President, by the Chairman or the President, respectively.
ARTICLE V
STOCK
Section 5.1. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to such person's shares, succeed to all rights of the prior
holder of such shares. Each certificate of stock shall recite on its face that
the stock represented thereby is transferable only upon the books of the
Association properly endorsed.
ARTICLE VI
CORPORATE SEAL
Section 6.1. The Chairman, the President, the Secretary, any
Assistant Secretary or other officer designed by the board, the Chairman, or the
President, shall have authority to affix the corporate seal to any document
requiring such seal, and to attest the same. Such seal shall be substantially in
the following form:
[SEAL]
- 5 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 EXECUTION OF INSTRUMENTS. All agreements, checks,
drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, guarantees, proxies and other instruments or
documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a
fiduciary capacity or otherwise, by any officer of the Association, or such
employee or agent as may be designated from time to time by the board by
resolution, or by the Chairman or the President by written instrument, which
resolution or instrument shall be certified as in effect by the Secretary or
an Assistant Secretary of the Association. The provisions of this section are
supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. RECORDS. The Articles of Association, the Bylaws and
the proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for the purpose. The minutes or each meeting shall be signed by the Secretary,
or other officer appointed to act as Secretary of the meeting.
Section 7.3. TRUST FILES. There shall be maintained in the
Association files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 7.4. TRUST INVESTMENTS. Funds held in a fiduciary capacity
shall be invested according to the instrument establishing the fiduciary
relationship and according to law. Where such instrument does not specify the
character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument
shall be invested in investments in which corporate fiduciaries may invest under
law.
Section 7.5 NOTICE. Whenever notice is required by the Articles of
Association, the Bylaws or law, such notice shall be by mail, postage prepaid,
telegram, in person, or by any other means by which such notice can reasonably
be expected to be received, using the address of the person to receive such
notice, or such other personal data, as may appear on the records of the
Association. Prior notice shall be proper if given not more than 30 days nor
less than 10 days prior to the event for which notice is given.
- 6 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE VIII
INDEMNIFICATION
Section 8.1. The association shall indemnify to the full extent
permitted by, and in the manner permissible under, the Articles of Association
and the laws of the United States of America, as applicable and as amended from
time to time, any person made, or threatened to be made, a party to any action,
suit or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person is or was a director, advisory director,
officer or employee of the Association, or any predecessor of the Association,
or served any other enterprise as a director or officer at the request of the
Association or any predecessor of the Association.
Section 8.2 The board in its discretion may, on behalf of the
Association, indemnify any person, other than a director, advisory director,
officer or employee, made a party to any action, suit or proceeding by reason of
the fact that such person is or was an agent of the Association or any
predecessor of the Association serving in such capacity at the request of the
Association or any predecessor of the Association.
ARTICLE IX
BYLAWS: INTERPRETATION AND AMENDMENT
Section 9.1. These Bylaws shall be interpreted in accordance with
and subject to appropriate provisions of law, and may be amended, altered or
repealed, at any regular or special meeting of the board.
Section 9.2. A copy of the Bylaws, with all amendments, shall at all
times be kept in a convenient place at the main office of the Association, and
shall be open for inspection to all shareholders during Association hours.
--- --- ---
- 7 -
<PAGE>
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that reports of
examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: August 27, 1996
FIRST TRUST NATIONAL ASSOCIATION
/s/ James A. Ehrenberg
--------------------------------
James A. Ehrenberg
Senior Vice President
<PAGE>
Exhibit 7
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Expires March 31, 1999
Federal Financial Institutions Examination Council
- --------------------------------------------------------------------------------
/1/
[LOGO] Please refer to page 1,
Table of Contents, for
the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC OFFICES ONLY AND
TOTAL ASSETS OF LESS THAN $100 MILLION - FFIEC 034
(960630)
Report at the close of business June 30, 1996 -----------
(RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State member banks);
12 U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section 161
(National banks).
This report form is to be filed by banks with domestic offices only. 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 must file FFIEC 031.
- --------------------------------------------------------------------------------
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, MERITA D. SCHOLLMEIER, ASSISTANT SECRETARY
---------------------------------------------------
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/ Merita D. Schollmeier
- -----------------------------------------------
Signature of Officer Authorized to Sign Report
7/11/96
- -----------------------------------------------
Date of Signature
- -----------------------------------------------
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in
some cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it
has been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and is true and correct.
/s/
- -----------------------------------------------
Director (Trustee)
/s/
- -----------------------------------------------
Director (Trustee)
/s/
- -----------------------------------------------
Director (Trustee)
- --------------------------------------------------------------------------------
For Banks Submitting Hard Copy Report Forms:
STATE MEMBER BANKS: Return the original and one copy to the appropriate
Federal Reserve District Bank.
STATE NONMEMBER BANKS: Return the original only in the SPECIAL RETURN ADDRESS
ENVELOPE PROVIDED. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
NATIONAL BANKS: Return the original only in the SPECIAL RETURN ADDRESS
ENVELOPE PROVIDED. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
- --------------------------------------------------------------------------------
FDIC Certificate Number /9/0/3/1/9/
-----------
(RCRI 9050)
<PAGE>
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC OFFICES ONLY AND TOTAL ASSETS LESS THAN $100 MILLION
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
SIGNATURE PAGE COVER
REPORT OF INCOME
Schedule RI - Income Statement.................................... RI-1, 2, 3
Schedule RI-A - Changes in Equity Capital......................... RI-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-E - Explanations...................................... RI-5,6
REPORT OF CONDITION
Schedule RC - Balance Sheet....................................... RC-1,2
Schedule RC-B - Securities........................................ RC-3,4
Schedule RC-C - Loans and Lease Financing
Receivables:
Part I. Loans and Leases ....................................... RC-5,6
Part II. Loans to Small Businesses and Small Farms (included
in the forms for June 30, only).............................. RC-6a, 6b
Schedule RC-E - Deposit Liabilities .............................. RC-7,8
Schedule RC-F - Other Assets ..................................... RC-9
Schedule RC-G - Other Liabilities................................. RC-9
Schedule RC-K - Quarterly Averages................................ RC-10
Schedule RC-L - Off-Balance Sheet Items........................... RC-11,12
Schedule RC-M - Memoranda......................................... RC-13,14
Schedule RC-N - Past Due and Nonaccrual Loans, Leases, and
Other Assets.................................................... RC-15
Schedule RC-O - Other Data for Deposit Insurance
Assessments..................................................... RC-16,17
Schedule RC-R - Regulatory Capital ............................... RC-18,19
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income................. RC-20
Special Report (TO BE COMPLETED BY ALL BANKS)
Schedule RC-J - Repricing Opportunities (sent only to
and to be completed only by savings banks)
DISCLOSURE OF ESTIMATED BURDEN
The estimated average burden associated with this information collection is
32.2 hours per respondent and is estimated to vary from 15 to 230 hours per
response, depending on individual circumstances. burden estimates include the
time for reviewing instructions, gathering and maintaining data in the
required form, and completing the information collection, but exclude the
time for compiling and maintaining business records in the normal course of a
respondent's activities. Comments concerning the accuracy of this burden
estimate and suggestions for reducing this burden should be directed to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, D.C. 20503, and to one of the following:
SECRETARY
Board of Governors of the Federal Reserve System
Washington, D.C. 20851
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>
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1996 - JUNE 30, 1996
ALL REPORT OF INCOME SCHEDULES ARE TO BE REPORTED ON A CALENDAR YEAR-TO-DATE
BASIS IN THOUSANDS OF DOLLARS.
SCHEDULE RI - INCOME STATEMENT
<TABLE>
<CAPTION>
I180 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Interest Income:
a. Interest and fee income on loans (1,2): RIAD
(1) Total loans (to be completed only by those banks with less than ----
$25 million in total assets)____________________________________________ 4010. . 0 1.a.1
The following four items are to be completed only by those banks with
$25 million or more in total assets (1,2)
(2) Real estate loans________________________________________________________ 4246. . N/A 1.a.2
(3) Installment loans________________________________________________________ 4247. . N/A 1.a.3
(4) Credit cards and related plans___________________________________________ 4248. . N/A 1.a.4
(5) Commercial (time and demand) and all other loans_________________________ 4249. . N/A 1.a.5
b. Income from lease financing receivables______________________________________ 4065. . 0 1.b
c. Interest income on balances due from depository institutions (3)_____________ 4115. . 77 1.c
d. Interest and dividend income on securities:
(1) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities__________________________________________________ 4506. . 0 1.d.1a
(b) Tax-exempt securities_______________________________________________ 4507. . 11 1.d.1b
(2) U.S. Government and other debt securities_______________________________ 3660. . 0 1.d.2
(3) Equity securities (including investments in mutual funds)_______________ 3659. . 23 1.d.3
e. Interest income from trading assets__________________________________________ 4069. . 0 1.e
f. Interest income on federal funds sold (4) and securities purchased under
agreements to resell_________________________________________________________ 4020. . 24 1.f
g. Total interest income (sum of items 1.a through 1.f)_________________________ 4107. . 135 1.g
</TABLE>
_________________
(1) See instructions for loan classifications used in this schedule.
(2) The $25 million asset size test is generally based on the total assets
reported on the June 30, 1995 Report of Condition.
(3) Includes interest income on time certificates of deposit not held for
trading.
(4) Report interest income on "term federal funds sold" in Schedule R1, Item
1.a, "Interest and fee income on loans."
<PAGE>
4
Schedule RI - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
2. Interest expense:
a. Interest on deposits:
(1) Transaction accounts (NOW accounts, ATS accounts, and RIAD Year-to-date
telephone and preauthorized transfer accounts) ______________4508. . 0 . . . . . . . . 2.a.1
(2) Nontransaction accounts:
(a) Money market deposit accounts (MMDAs) ___________________4509. . 0 . . . . . . . . 2.a.2
(b) Other savings deposits __________________________________4511. . 0 . . . . . . . . 2.a.2b
(c) Time certificates of deposit of $ 100,000 or more _______4174. . 0 . . . . . . . . 2.a.2c
(d) All other time deposits (1) _____________________________4512. . 0 . . . . . . . . 2.a.2d
b. Expense of federal funds purchased (2) and securities sold
under agreements to repurchase __________________________________4180. . 219 . . . . . . . . 2.b
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and on other borrowed money ________________________4185. . 0 . . . . . . . . 2.c
d. Interest on mortgage indebtedness and obligations under
capitalized leases ______________________________________________4072. . 0 . . . . . . . . 2.d
e. Interest on subordinated notes and debentrues ___________________4200. . 0 . . . . . . . . 2.e
f. Total interest expense (sum of items 2.a through 2.e) ___________4073. . 219 . . . . . . . . 2.f
3. Net interest income (item 1.g minus 2.f) ___________________________4074. . . . . . . . . . . . ( 84) 3.
4. Provisions
a. Provision for loan and lease losses _____________________________4230. . . . . . . . . . . . 0 4.a
b. Provision for allocated transfer risk ___________________________4243. . . . . . . . . . . . 0 4.b
5. Noninterest income:
a. Service charges on deposit accounts _____________________________4080. . 0 . . . . . . . . 5.a
b. Other noninterest income:
(1) Other fee income ____________________________________________5407. . 51,150 . . . . . . . . 5.b.1
(2) All other noninterest income * ______________________________5408. . 14,960 . . . . . . . . 5.b.2
c. Total noninterest income (sum of items 5.a and 5.b) _____________4079. . . . . . . . . . . . 66,110 5.c
6. a. Realized gains (losses) on held-to-maturity securities __________3521. . . . . . . . . . . . 0 6.a
b. Realized gains (losses) on available-for-sale securities ________3196. . . . . . . . . . . . 0 6.b
7. Noninterest expense:
a. Salaries and employee benefits __________________________________4135. . 24,074 . . . . . . . . 7.a
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage
interest) _______________________________________________________4217. . 3,830 . . . . . . . . 7.b
c. Other noninterest expense * _____________________________________4092. . 16,555 . . . . . . . . 7.c
d. Total noninterest expense (sum of items 7.a through 7.c) ________4093. . . . . . . . . . . . 44,459 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.c,
6.a, 6.b, and 7.d) _________________________________________________4301. . . . . . . . . . . . 21,567 8.
9. Applicable income taxes (on item 8)_________________________________4302. . . . . . . . . . . . 8,024 9.
10. Income (loss) before extraordinary items and other ajustments
(item 8 minus 9) ___________________________________________________4300. . . . . . . . . . . . 13,543 10.
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) _____________________________4320. . . . . . . . . . . . 0 11.c
12. Net income (loss) (sum of items 10 and 11.c)________________________4340. . . . . . . . . . . . 13,543 12.
</TABLE>
- ---------------
(1) Includes interest expense on open-account time deposits of $ 100,000 or
more.
(2) Report the expense of "term federal funds purchased" in Schedule RI,
item 2.c, "Interest on demand notes issued to the U.S. Treasure, trading
liabilities and other borrowed money."
* Describe on Schedule RI-E - Explanations.
<PAGE>
5
Schedule RI - Continued
<TABLE>
<CAPTION>
I181 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MEMORANDA RIAD
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired ---- Year-to-date
after August 7, 1986, that is not deductible for federal income tax purposes ____________4513. . 0 M.1
2. Income from the sale and servicing of mutual funds and annuities (included in
Schedule RI, item 8) ____________________________________________________________________8431. . 0 M.2
3. Estimated income on tax-exempt loans and leases to states and political subdivisions
in the U.S. (reportable in Schedule RC-C, part I, items 7 and 9) included in
Schedule RI, items 1.a and 1.b, above (excludes income on tax-exempt securities) ________4313. . 0 M.3
4. Number of full-time equivalent employees on payroll at end of current period (round to NUMBER
nearest whole number) ___________________________________________________________________4150. . 1,097 M.4
5. Cash dividends declared during the calendar year to date (to be reported only with
March, June, and September Reports of Income) ___________________________________________4475. . 4,000 M.5
6. To be completed by banks with $25 million or more in total assets and with
loans to finance agricultural production and other loans to farmers (Schedule RC-C,
part I, item 3) exceeding five percent of total loans. (2)
Interest and fee income on agricultural loans (1) (included in item 1.a above) __________4251. . 0 M.6
7. If the reporting bank has restated its balance sheet as a result of applying push down MM DD YY
accounting this calendar year, report the date of the bank's acquisition ________________9106. . N/A M.7
</TABLE>
- -----------------
(1) See instructions for loan classifications used in this schedule.
(2) The $25 million asset size test and the five percent of total loans test are
generally base on the total assets reported on the June 30, 1995 Report of
Condition.
Schedule RI-A - Changes in Equity Capital
Schedule RI-A is to be reported with the December Report of Income.
Indicate decreases and losses in parentheses.
<TABLE>
<CAPTION>
I183 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Total equity capital originally reported in the December 31, 1995, Reports of RAID
----
Condition and Income _____________________________________________________________3215. . N/A 1.
2. Equity capital adjustments from amended Report of Income, net * __________________3216. . N/A 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) _____________3217. . N/A 3.
4. Net income (loss) (must equal Schedule RI, item 12) ______________________________4340. . N/A 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net _______________4346. . N/A 5.
6. Changes incident to business combinations, net ___________________________________4356. . N/A 6.
7. LESS: Cash dividends declared on preferred stock _________________________________4470. . N/A 7.
8. LESS: Cash dividends declared on common stock ____________________________________4460. . N/A 8.
9. Cumulative effect of changes in accounting principles from prior years * (see
instructions for this schedule) __________________________________________________4411. . N/A 9.
10. Corrections of material accounting errors from prior years *(see instructions for
this schedule) ___________________________________________________________________4412. . N/A 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities__8433. . N/A 11.
12. Other transactions with parent holding company * (not included in item 5, 7, or
8 above) _________________________________________________________________________4415. . N/A 12.
13. Total equity capital end of current period (sum of items through 12) (must equal
Schedule RC, item 28.a) __________________________________________________________3210. . N/A 13.
</TABLE>
- ---------------------
* Describe on Schedule RI-E -Explanations.
<PAGE>
6
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 (1)
<TABLE>
<CAPTION>
I186 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
-----------------------Calendar year-to-date------------------------
Column A Column B
Charge-offs Recoveries
----------------------- ----------------------
<S> <C> <C>
RIAD RIAD
---- ----
1. Real estate loans ____________________________________________4256. . 0 4257. . 0 1.
2. Installment loans ____________________________________________4258. . 0 4259. . 0 2.
3. Credit cards and related plans _______________________________4262. . 0 4263. . 0 3.
4. Commercial (time and demand) and all other loans______________4264. . 0 4265. . 0 4.
5. Lease financing receivables __________________________________4266. . 0 4267. . 0 5.
6. Total (sum of items 1 through 5) _____________________________4635. . 0 4605. . 0 6.
<CAPTION>
Memoranda
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. To be completed by banks with loans to
finance agricultural production and other loans to
farmers (Schedule RC-C, part I, item 3) exceeding five
percent of total loans. RIAD RIAD
Agricultural loans included in part I,, items 1 ---- ----
through 4, above ____________________________________________4268. . 0 4269. . 0 M.1
2. Not applicable.
3. Not applicable.
4. Loans to finance commercial real estate, construction
and land development activities (not secured by real RIAD RIAD
estate) included in Schedule RI-B, part I, ---- ----
items 2 through 4, above ____________________________________5443. . 0 5444. . 0 M.4
5. Real estate loans (sum of Memorandum
items 5.a through 5.e must equal Schedule RIAD RIAD
Ri-B, part I, item 1, above): ---- ----
a. Construction and land development _______________________5445. . 0 5446. . 0 M.5.a
b. Secured by farmland _____________________________________5447. . 0 5448. . 0 M.5.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4
family residential properties and extended
under lines of credit ______________________________5449. . 0 5450. . 0 M.5.c1
(2) All other loans secured by 1-4 family
residential properties _____________________________5451. . 0 5452. . 0 M.5.c2
d. Secured by multifamily (5 or more) residential
properties ______________________________________________5453. . 0 5454. . 0 M.5.d
e. Secured by nonfarm nonresidential properties ____________5455. . 0 5456. . 0 M.5.e
</TABLE>
- --------------
(1) See instructions for loan classifications used in this schedule.
<PAGE>
7
Schedule RI - B - Continued
Part II. Changes in Allowance for Loan and Lease Losses
Part II is to be reported with the December Report of Income.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RIAD
----
1. Balance originally reported in the December 31, 1995, Reports of Condition and Income___3124. . 0 1.
2. Recoveries (must equal part I, item 6, column B above)__________________________________4605. . N/A 2.
3. LESS: Charge-offs (must equal part I, item 6, column A above)__________________________4635. . N/A 3.
4. Provision for loan and lease losses (must equal Schedule RI, item 4.a)__________________4230. . 0 4.
5. Adjustments * (see instructions for this schedule)______________________________________4815. . 0 5.
6. Balance end of current period (sum of items 1 through 5) (must equal Schedule RC,
item 4.b)_______________________________________________________________________________3123. . 0 6.
</TABLE>
__________
* Describe on Schedule RI-E - Explanations.
Schedule RI-C - Applicable Income Taxes by Taxing Authority
<TABLE>
<CAPTION>
I189 < -
Schedule RI-C is to be reported with the December Report of Income. Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RIAD
----
1. Federal_________________________________________________________________________________4780. . N/A 1.
2. State and local_________________________________________________________________________4790. . N/A 2.
3. Total (sum of items 1 and 2) (must equal sum of Schedule RI, items 9 and 11.b)__________4770. . N/A 3.
RIAD
----
4. Deferred portion of item 3___________________________4772. . N/A . . . . . . . . . . 4.
</TABLE>
Schedule RI-E - Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in 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>
I195 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. All other noninterest income (from Schedule RI, item 5.b.(2))
Report amounts that exceed 10% of Schedule RI, item 5.b.(2): RIAD Year-to-date
----
a. Net gains on other real estate owned________________________________________________5415. . N/A 1.a
b. Net gains on sales of loans_________________________________________________________5416. . N/A 1.b
c. Net gains on sales of premises and fixed assets_____________________________________5417. . N/A 1.c
Itemize and describe the three largest other amounts that exceed 10% of
Schedule RI, item 5.b.(2):
TEXT RIAD
---- ----
d. 4461: Expense Reimbursement fr Affiliates__________________________________________4461. . 13,602 1.d
e. 4462: _____________________________________________________________________________4462. . N/A 1.e
f. 4463: _____________________________________________________________________________4463. . N/A 1.f
2. Other noninterest expense (from Schedule RI, item 7.c):
a. Amortization expense of intangible assets___________________________________________4531. . 255 2.a
Report amounts that exceed 10% of Schedule RI, item 7.c:
b. Net losses on other real estate owned_______________________________________________5418. . N/A 2.b
c. Net losses on sales of loans________________________________________________________5419. . N/A 2.c
d. Net losses on sales of premises and fixed assets____________________________________5420. . N/A 2.d
Itemize and describe the three largest other amounts that exceed 10% of
Schedule RI, item 7.c:
TEXT RIAD
---- ----
e. 4464: Data Processing Expense - Non Affiliate______________________________________4464. . 2,286 2.e
f. 4467: Consulting Services Expense__________________________________________________4467. . 3,000 2.f
g. 4468: _____________________________________________________________________________4468. . N/A 2.g
</TABLE>
<PAGE>
8
Schedule RI-E - continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
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):
TEXT RIAD RIAD Year-to-date
---- ---- ----
a. (1) 4469: ________________________________________________ . . . . . . . . . 4469. . 0 3.a.1
(2) Applicable income tax effect__________________________4486 . . 0 . . . . . . . 3.a.2
b. (1) 4487: ________________________________________________ . . . . . . . . . 4487. . 0 3.b.1
(2) Applicable income tax effect__________________________4488 . . 0 . . . . . . . 3.b.2
c. (1) 4489: ________________________________________________ . . . . . . . . . 4489. . 0 3.c.1
(2) Applicable income tax effect__________________________4491 . . 0 . . . . . . . 3.c.2
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A,
item 2) (itemize and describe all adjustments):
TEXT
----
a. 4492: ______________________________________________________________________________________4492. . N/A 4.a
b. 4493: ______________________________________________________________________________________4493. . N/A 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):
TEXT
----
a. 4494: ______________________________________________________________________________________4494. . N/A 5.a
b. 4495: ______________________________________________________________________________________4495. . N/A 5.b
6. Corrections of material accounting errors from prior years (from Schedule
RI-A, item 10) (itemize and describe all corrections):
TEXT
----
a. 4496: ______________________________________________________________________________________4496. . N/A 6.a
b. 4497: ______________________________________________________________________________________4497. . N/A 6.b
7. Other transactions with parent holding company (from Schedule RI-A, item 12) (itemize
and describe all such transactions):
TEXT
----
a. 4498: ______________________________________________________________________________________4998. . N/A 7.a
b. 4499: ______________________________________________________________________________________4499. . N/A 7.b
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, part II,
item 5) (itemize and describe all adjustments):
TEXT
----
a. 4521: ______________________________________________________________________________________4521. . N/A 8.a
b. 4522: ______________________________________________________________________________________4522. . N/A 8.b
I198 I199 < -
</TABLE>
Other explanations (the space below is provided for bank to briefly describe, at
its option, any other significant items affecting the Report of Income):
No comment: X (RIAD 4769)
Other explanations (please type or print clearly):
(TEXT 4769)
<PAGE>
9
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
<TABLE>
<CAPTION>
C100 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ASSETS
1. Cash and balances due from depository institutions: RCON
----
a. Noninterest-bearing balances and currency and coin (1,2)__________________________0081. . 49,771 1.a
b. Interest-bearing balances (3)_____________________________________________________0071. . 10,370 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)________________________1754. . 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)______________________1773. . 1,061 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold (4)____________________________________________________________0276. . 0 3.a
b. Securities purchased under agreements to resell (5)_______________________________0277. . 882 3.b
4. Loans and lease financing receivables: RCON
a. Loans and leases, net of unearned income ----
(from Schedule RC-C)_______________________________2122 . . 0 . . . . . . . . . . . 4.a
b. LESS: Allowance for loan and lease losses_________3123 . . 0 . . . . . . . . . . . 4.b
c. LESS: Allocated transfer risk reserve_____________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. . 0 4.d
5. Trading assets________________________________________________________________________3545. . 0 5.
6. Premises and fixed assets (including capitalized leases)______________________________2145. . 6,076 6.
7. Other real estate owned (from Schedule RC-M) 2150. . 0 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. . 0 9.
10. Intangible assets (from Schedule RC-M)________________________________________________2143. . 1,020 10.
11. Other assets (from Schedule RC-F)_____________________________________________________2160. . 22,322 11.
12. a. Total assets (sum of items 1 through 11)__________________________________________2170. . 91,502 12.a
b. Losses deferred pursuant to 12 U.S.C. 1823(j)_____________________________________0306. . 0 12.b
c. Total assets and losses deferred pursuant to 12 U.S.C. 1823(j) (sum of items
12.a and 12.b_____________________________________________________________________0307. . 91,502 12.c
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b.
(3) Includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a, "Loans and
leases, net of unearned income", and in Schedule RC-C, part I.
(5) Report securities purchased under agreements to resell that involve the
receipt of immediately available funds and mature in one business day or
roll over under a continuing contract in Schedule RC, item 3.a, "Federal
funds sold."
<PAGE>
10
Schedule RC - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
LIABILITIES
13. Deposits RCON
a. In domestic offices (sum of totals of ----
columns A and C from Schedule RC-E) ________________________________________________________2200. . 0 13.a
RCON
----
(1) Noninterest-bearing (1) ________________________________________6631. . 0 . . . . . . . . . 13.a.1
(2) Interest-bearing _________________________________________________6636. . 0 . . . . . . . . 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs _______________________________
(1) Noninterest-bearing _____________________________________________________________________
(2) Interest-bearing ________________________________________________________________________
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased (2) _______________________________________________________________0278. . 0 14.a
b. Securities sold under agreements to repurchase (3)_________________________________________0279. . 0 14.b
15. a. Demand notes issued to the U.S. Treasury ___________________________________________________2840. . 0 15.a
b. Trading liabilities ________________________________________________________________________3548. . 0 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less _____________________________________________2332. . 0 16.a
b. With a remaining maturity of more than one year ___________________________________________2333. . 0 16.b
17. Mortgage indebtedness and obligations under capitalized leases ________________________________2910. . 0 17.
18. Bank's liability on acceptances executed and outstanding ______________________________________2920. . 0 18.
19. Subordinated notes and debentures _____________________________________________________________3200. . 0 19.
20. Other liabilities (from Schedule RC-G)_________________________________________________________2930. . 37,173 20.
21. Total liabilities (sum of items 13 through 20) ________________________________________________2948. . 37,173 21.
22. Limited-life preferred stock and related surplus ______________________________________________3282. . 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus _________________________________________________3838. . 0 23.
24. Common stock __________________________________________________________________________________3230. . 1,000 24.
25. Surplus (exclude all surplus related to preferred stock) ______________________________________3839. . 24,000 25.
26. a. Undivided profits and capital reserves _____________________________________________________3632. . 29,322 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities ____________________8434. . 7 26.b
27. Cumulative foreign currency translation adjustments ___________________________________________
28. a. Total equity capital (sum of items 23 through 27) __________________________________________3210. . 54,329 28.a
b. Losses deferred pursuant to 12 U.S.C. 1823 (j) ____________________________________________0306. . 0 28.b
c. Total equity capital and losses deferred pursuant to 12 U.S.C. 1823(j)
(sum of items 28.a and 28.b) ______________________________________________________________3559. . 54,329 28.c
29. Total liabilities, limited-life preferred stock, equity capital, and losses
deferred pursuant to 12 U.S.C. 1823(j) (sum of items 21, 22, and 28.c) ________________________2257. . 91,502 29.
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement below that best describes
the most comprehensive level of auditing work performed for the bank by the independent
external auditors as of any date during 1995 _________________________________________________6724. . N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Director's 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.
2) Report "term federal funds purchased" in Schedule RC, item 16, "other
borrowed money."
3) Report securities sold under agreements to repurchase that involve the
receipt of immediately available funds and mature in one business day or
roll over under a continuing contract in Schedule RC, item 14.a, "Federal
funds purchased."
<PAGE>
11
Schedule RC-B - Securities
Exclude assets held for trading
<TABLE>
<CAPTION>
C110 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
(Column A) (Column B) (Column C) (Column D)
Amortized Costs Fair Value Amortized Cost Fair Value (1)
------------------- -------------- -------------- --------------------
<S> <C> <C> <C> <C>
RCON RCON RCON RCON
---- ---- ---- ----
1. U.S. Treasury
securities ______________________________________0211.. 0 0213.. 0 1286.. 0 1287.. 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 1291.. 0 1293.. 0 2.a
b. Issued by U.S. Government -
sponsored agencies (3)________________________1294.. 0 1295.. 0 1297.. 0 1298.. 0 2.b
3. Securities issued by states and
political subdivisions in the U.S.:
a. General obligations __________________________1676.. 0 1677.. 0 1678.. 300 1679.. 311 3.a
b. Revenue obligations __________________________1681.. 0 1686.. 0 1690.. 0 1691.. 0 3.b
c. Industrial development and similar
obligations __________________________________1694.. 0 1695.. 0 1696.. 0 1697.. 0 3.c
4. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Guaranteed by GMMA ______________________1698.. 0 1699.. 0 1701.. 0 1702.. 0 4a1
(2) Issued by FMMA and FHLMC _________________1703.. 0 1705.. 0 1706.. 0 1707.. 0 4a2
(3) Other pass_through securities ____________1709.. 0 1710.. 0 1711.. 0 1713.. 0 4a3
b. Other mortgage-backed securities
(Include CMOs, REMICs, and
Stripped MBS):
(1) Issued or guaranteed by FMMA,
FHLMC, or GMMA __________________________1714.. 0 1715.. 0 1716.. 0 1717.. 0 4b1
(2) Collateralized by MBS issued
or guaranteed by FMMA,
FHLMC, or GMMA __________________________1718.. 0 1719.. 0 1731.. 0 1732.. 0 4b2
(3) All other mortgage-backed
securities ______________________________1733.. 0 1734.. 0 1735.. 0 1736.. 0 4b3
5. Other debt securities ____________________________1774.. 0 1775.. 0 1776.. 0 1777.. 0 5.
6. Equity securities:
a. Investments in mutual funds __________________ .. .. 1747.. 0 1748.. 0 6.a
b. Other equity securities with
readily determinable fair values_____________ .. .. 1749.. 0 1751.. 0 6.b
c. All other equity securities(1)
(includes Federal Reserve stock)______________ .. .. 1752.. 750 1753.. 750 6.c
7. Total (sum of items 1 through 6)
(total of column A must equal
Schedule RC item 2.a)(total of column
D must equal Schedule RC, item 2.b)_______________1754.. 0 1771.. 0 1772..1,050 1773.. 1,061 7.
</TABLE>
- ---------
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c, column D.
(2) Includes Small Business Administration "Guaranteed Loan Pool Certificates,"
U.S. Maritime Administration obligations, and Export-Import Bank
participation certificates.
(3) Includes obligations (other than mortgage-backed securities) issued by the
Farm Credit System, the Federal Home Loan Bank System, the Federal Home
Loan Mortgage Corporation, the Federal National Mortgage Association, the
Financing Corporation, Resolution Funding Corporation, the Student Loan
Marketing Association, and the Tennessee Valley Authority.
<PAGE>
Schedule RC-B - Continued
<TABLE>
<CAPTION>
Memoranda
C112 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCON
----
1. Pledged securities(1) _______________________________________________________________________________0416.. 0 M.1
2. Maturity and repricing data for debt securities (1,2,3) excluding those in
nonaccrual status):
a. Fixed rate debt securities with a remaining maturity of:
(1) Three months or less ________________________________________________________________________0343.. 0 M.2.a1
(2) Over three months through 12 months _________________________________________________________0344.. 204 M.2.a2
(3) Over one year through five years ____________________________________________________________0345.. 107 M.2.a3
(4) Over five years _____________________________________________________________________________0346.. 0 M.2.a4
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1)
through 2.a.(4)) ____________________________________________________________________________0347.. 311 M.2.a5
b. Floating rate debt securities with a repricing frequency of:
(1) Quarterly or more frequently _______________________________________________________________4544.. 0 M.2.b1
(2) Annually or more frequently, but less frequently than quarterly _____________________________4545.. 0 M.2.b2
(3) Every five years or more frequently, but less frequently than annually ______________________4551.. 0 M.2.b3
(4) Less frequently than every five years _______________________________________________________4552.. 0 M.2.b4
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1)
through 2.b.(4))_____________________________________________________________________________4553.. 0 M.2.b5
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, columns A and
D, minus nonaccrual debt securities included in Schedule RC-W, item 6, column C)_________________0393.. 311 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 (1,3)
(included in Memorandum items 2.b.(1) through 2.b.(4) above) _______________________________________5519.. 0 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 (report the amortized cost
at date of sale or transfer) ____________________________________________________________________1778.. 0 M.7
8. High-risk mortgage securities (included in the held-to-maturity and available-for-sale
accounts in Schedule RC-B, item 4.b):
a. Amortized cost __________________________________________________________________________________8780.. 0 M.8.a
b. Fair value ______________________________________________________________________________________8781.. 0 M.8.b
9. Structured notes (included in the held-to maturity and available-for-sale
accounts in Schedule RC-B, items 2, 3, and 5):
a. Amortized cost __________________________________________________________________________________8782.. 0 M.9.a
b. Fair value _____________________________________________________________________________________8783.. 0 M.9.b
</TABLE>
- ------
1) Includes held-to-maturity securities at amortized cost and available-for-
sale securities at fair value.
2) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
3) Memorandum items 2 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
<PAGE>
13
Schedule RC-C - Loans and Lease Financing Receivables
Part I. Loans and Leases
Do not deduct the allowance for loan and lease losses from amounts reported
in this schedule. Report total loans and leases, net of unearned income.
Exclude assets held for trading.
<TABLE>
<CAPTION>
C115 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RCON
1. Loans secured by real estate: ----
a. Construction and land development_____________________________________________________1415. . 0 1.a
b. Secured by farmland (including farm residential and other improvements)_______________1420. . 0 1.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential properties and
extended under lines of credit____________________________________________________1797. . 0 1.c.1
(2) All other loans secured by 1-4 family residential properties:
(a) Secured by first liens________________________________________________________5367. . 0 1.c.2a
(b) Secured by junior liens_______________________________________________________5368. . 0 1.c.2b
d. Secured by multifamily (5 or more) residential properties_____________________________1460. . 0 1.d
e. Secured by nonfarm nonresidential properties__________________________________________1480. . 0 1.e
2. Loans to depository institutions_________________________________________________________1489. . 0 2.
3. Loans to finance agricultural production and other loans to farmers______________________1590. . 0 3.
4. Commercial and industrial loans__________________________________________________________1766. . 0 4.
5. Acceptances of other banks_______________________________________________________________1755. . 0 5.
6. Loans to individuals for household, family, and other personal expenditures
(i.e., consumer loans) (includes purchased paper):
a. Credit cards and related plans (includes check credit and other revolving credit
plans)________________________________________________________________________________2008. . 0 6.a
b. Other (includes single payment, installment, and all student loans)___________________2011. . 0 6.b
7. Obligations (other than securities and leases) of states and political subdivisions
in the U.S. (includes nonrated industrial development obligations)_______________________2107. . 0 7.
8. All other loans (exclude consumer loans)_________________________________________________2080. . 0 8.
9. Lease financing receivables (net of unearned income)_____________________________________2165. . 0 9.
10. LESS: Any unearned income on loans reflected in items 1-8 above__________________________2123. . 0 10.
11. Total loans and leases, net of unearned income (sum of items 1 through 9 minus item
10) (must equal Schedule RC, item 4.a)___________________________________________________2122. . 0 11.
</TABLE>
<PAGE>
14
Schedule RC-C - Continued
Part I. Continued
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Loans (1) and leases restructured and in compliance with modified terms (included in
Schedule RC-C, part I, above, and not reported as past due or nonaccrual in Schedule RCON
RC-W, Memorandum item 1):________________________________________________________________----
a. Real estate loans_____________________________________________________________________1617. . 0 M.1.a
b. All other loans and all lease financing receivables (exclude loans to individuals
for household, family, and other personal expenditures)_______________________________8691. . 0 M.1.b
2. Maturity and repricing data for loans and leases (2) (excluding those in nonaccrual
status):
a. Fixed rate loans and leases with a remaining maturity of:
(1) Three months or less______________________________________________________________0348. . 0 M.2.a1
(2) Over three months through 12 months_______________________________________________0349. . 0 M.2.a2
(3) Over one year through five years__________________________________________________0356. . 0 M.2.a3
(4) Over five years___________________________________________________________________0357. . 0 M.2.a4
(5) Total fixed rate loans and leases (sum of Memorandum items 2.a.(1) through
2.a.(4))__________________________________________________________________________0358. . 0 M.2.a5
b. Floating rate loans with a repricing frequency of:
(1) Quarterly or more frequently______________________________________________________4554. . 0 M.2.b1
(2) Annually or more frequently, but less frequently than quarterly___________________4555. . 0 M.2.b2
(3) Every five years or more frequently, but less frequently than annually____________4561. . 0 M.2.b3
(4) Less frequently than every five years_____________________________________________4564. . 0 M.2.b4
(5) Total floating rate loans (sum of Memorandum items 2.b.(1) through 2.b.(4))_______4567. . 0 M.2.b5
c. Total loans and leases (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal
the sum of total loans and leases, net, from Schedule RC-C, part I, Item 11,
plus unearned income from Schedule RC-C, Part I, item 10, minus total nonaccrual
loans and leases from Schedule RC-N, sum of items 1 through 5, column C)______________1479. . 0 M.2.c
d. Floating rate loans with a remaining maturity of one year or less (included in
memorandum items 2.b.(1) through 2.b.(4) above)_______________________________________A246. . 0 M.2.d
3. Reserved
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 8, page
RC-5 (3)_________________________________________________________________________________2746. . 0 M.4
5. Loans and leases held for sale (included in Schedule RC-C, part I, above)________________5369. . 0 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), page RC-5)_______________5370. . 0 M.6
</TABLE>
- ----------
(1) See instructions for loan classifications used in Memorandum Item 1.
(2) Memorandum item 2 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
(3) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, items 1.a through 1.e.
<PAGE>
14a
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>
<CAPTION>
C118 < -
<S> <C>
Loans to Small Businesses
1. Indicate in the appropriate box at the right whether all or substantially all of the
dollar volume of your bank's "Loans secured by nonfarm nonresidential properties" reported
in Schedule RC-C, part I, item 1.e, and all or substantially all of the dollar volume of
your bank's "Commercial and industrial loans" reported in Schedule RC-C, part I, item 4,
have original amounts of $100,000 or less (if your bank has no loans outstanding in both RCON YES NO
of these two loan categories, place an "X" in the box marked "NO" and go to item 5; ---- --- --
otherwise, see instructions for further information.)_______________________________________6999. . X 1.
If YES, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5.
If NO and your bank has loans outstanding in either loan category,
skip items 2.a and 2.b, complete items 3 and 4 below, and go to item 5.
2. Report the total number of loans currently outstanding
for each of the following Schedule RC-C, part I, loan Number of Loans
categories: ----------------------------
a. "Loans secured by nonfarm nonresidential properties" RCON
reported in Schedule RC-C, part I, ----
item 1.e______________________________________________5562. . N/A 2.a
b. "Commercial and industrial loans" reported in Schedule
RC-C, part I, item 4__________________________________5563. . N/A 2.b
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------
(Column A) (Column B)
Number of Loans Amount Currently Outstanding
--------------------------- ---------------------------------
<S> <C> <C>
3. Number and amount currently outstanding of "Loans secured
by nonfarm nonresidential properties" reported in Schedule
RC-C, part I, item 1.e (sum of items 3.a though 3.c must RCON RCON
be less than or equal to Schedule RC-C, part I, item 1.e): ---- ----
a. With original amounts of $100,000
or less____________________________________________________5564. . N/A 5565. . N/A 3.a
b. With original amounts of more than $100,000 through
$250,000___________________________________________________5566. . N/A 5567. . N/A 3.b
c. With original amounts of more than $250,000 through
$1,000,000_________________________________________________5568. . N/A 5569. . N/A 3.c
4. Number and amount currently outstanding of "Commercial and
industrial loans" reported in Schedule RC-C, part I, item 4
(sum of items 4.a though 4.c must be less than or equal to RCON RCON
Schedule RC-C, part I, item 4): ---- ----
a. With original amounts of $100,000 or less__________________5570. . N/A 5571. . N/A 4.a
b. With original amounts of more than $100,000 through
$250,000___________________________________________________5572. . N/A 5573. . N/A 4.b
c. With original amounts of more than $250,000 through
$1,000,000_________________________________________________5574. . N/A 5575. . N/A 4.c
</TABLE>
<PAGE>
14b
Schedule RC-C - Continued
Part II. Continued
Agricultural Loans to Small Farms
<TABLE>
<S> <C>
5. Indicate in the appropriate box at the right whether all or substantially all of the
dollar volume of your bank's "Loans secured by farmland (including farm residential and
other improvements)" reported in Schedule RC-C, part I, item 1.b, and all or
substantially all of the dollar volume of your bank's "Loans to finance agricultural
production and other loans to farmers" reported in Schedule RC-C, part 1, item 3, have
original amounts of $100,000 or less (if your bank has no loans outstanding in both of RCON YES NO
these two loan categories, place an "X" in the box marked "NO" and do not complete items 7 ---- --- --
and 8; otherwise, see instructions for further information.)________________________________6860. . X 5.
If YES, complete Items 6.a and 6.b below and do not complete items 7 and 8.
if NO and your bank has loans outstanding in either loan category,
skip items 6.a and 6.b and complete items 7 and 8 below.
6. Report the total number of loans currently outstanding
for each of the following Schedule RC-C, part I, loan Number of Loans
categories: ----------------------
a. "Loans secured by farmland (including farm residential RCON
and other improvements)" reported in Schedule RC-C, ----
part I, item 1.b________________________________________5576. . N/A 6.a
b. "Loans to finance agricultural production and other
loans to farmers" reported in Schedule RC-C, part I,
item 3__________________________________________________5577. . N/A 6.b
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------
(Column A) (Column B)
Number of Loans Amount Currently Outstanding
----------------------- ----------------------------
<S> <C> <C>
Number and amount currently outstanding of "Loans secured
by farmland (including farm residential and other
improvements)" reported in Schedule RC-C, part I, item 1.b
(sum of items 7.a through 7.c must be less than or equal
to Schedule RC-C, part I, item 1.b): RCON RCON
a. With original amounts of $ 100,000 ---- ----
or less____________________________________________________5578. . N/A 5579. . N/A 7.a
b. With original amounts of more than $ 100,000 through
$ 250,000__________________________________________________5580. . N/A 5581. . N/A 7.b
c. With original amounts of more than $ 250,000 through
$ 500,000__________________________________________________5582. . N/A 5583. . N/A 7.c
Number and amount currently outstanding of "Loans to
finance agricultural production and other loans to farmers"
reported in Schedule RC-C, part I, item 3 (sum of items
8.a through 8.c must be less than or equal to Schedule
RC-C, part I, item 3): RCON RCON
a. With original amounts of $ 100,000 ---- ----
or less____________________________________________________5584. . N/A 5585. . N/A 8.a
b. With original amounts of more than $ 100,000 through
$ 250,000__________________________________________________5586. . N/A 5587. . N/A 8.b
c. With original amounts of more than $ 250,000 through
$ 500,000__________________________________________________5588. . N/A 5589. . N/A 8.c
</TABLE>
<PAGE>
15
<TABLE>
<CAPTION>
Schedule RC-E - Deposit Liabilities C125 < -
Dollar Amount in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
---------------Transaction Accounts-------------- --Nontransaction Accounts----
(Column A) (Column B) (Column C)
Total transaction Memo: Total demand
accounts (including total deposits (included in Total Nontransaction
demand deposits) column A) accounts (including MMDAs)
- ------------------------------------------ ------------------------- ---------------------- ----------------------------
<S> <C> <C> <C>
RCON RCON RCON
Deposits of: ---- ---- ----
1. Individuals, partnerships and corporations__2201. . 0 2240. . 0 2346. . 0 1.
2. U.S. Government_____________________________2202. . 0 2280. . 0 2520. . 0 2.
3. States and political subdivisions in
the U.S.____________________________________2203. . 0 2290. . 0 2530. . 0 3.
4. Commercial banks in the U.S. (including U.S.
branches and agencies of foreign banks)_____2206. . 0 2310. . 0 2550. . 0 4.
5. Other depository institutions in the U.S.___2207. . 0 2312. . 0 2349. . 0 5.
6. Certified and official checks_______________2330. . 0 2330. . 0 . . . . . . . . . . . . 6.
7. Banks in foreign countries, foreign
governments, and foreign official
institutions________________________________2184. . 0 2185. . 0 2186. . 0 7.
8. Total (sum of items 1 through 7) (sum of
columns A and C must equal Schedule RC,
item 13.a)__________________________________2215. . 0 2210. . 0 2385. . 0 8.
</TABLE>
<TABLE>
<CAPTION>
Dollar Amount in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Memoranda
RCON
----
1. Selected components of total deposits (i.e., sum of item 8, columns A and C):
a. Total individual Retirement Accounts (IRAs) and Keogh Plan Accounts_________________6835. . 0 M.1.a
b. Total brokered deposits_____________________________________________________________2365. . 0 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.c1
(2) Issued either in denominations of $ 100,000 or in denominations greater than
$ 100,000 and participated out by the broker in shares of $ 100,000 or less_____2344. . 0 M.1.c2
d. Maturity data for brokered deposits:
(1) Brokered deposits issued in denominations of less than $ 100,000 with a
remaining maturity of one year or less (included in Memorandum item
1.c.(1) above)__________________________________________________________________A243. . 0 M.1.d1
(2) Brokered deposits issued in denominations of $ 100,000 or more with a
remaining maturity of one year or less (included in Memorandum item
1.b above)______________________________________________________________________A244. . 0 M.1.d2
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. . 0 M.1.e
2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.d
must equal item 8, column C, above):
a. Saving deposits:
(1) Money Market deposit accounts (MMDAs)___________________________________________6810. . 0 M.2.a1
(2) Other savings deposits (excludes MMDAs)_________________________________________0352. . 0 M.2.a2
b. Total time deposits of less than $ 100,000__________________________________________6648. . 0 M.2.b
c. Time certificates of deposit of $ 100,000 or more___________________________________6645. . 0 M.2.c
d. Open-account time deposits of $ 100,000 or more_____________________________________6646. . 0 M.2.d
3. All NOW accounts (included in column A above)__________________________________________2398. . 0 M.3
4. Not applicable
</TABLE>
<PAGE>
16
Schedule RC-E - Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Memoranda (Continued)
5. Maturity and repricing data for time deposits of less than $ 100,000 (sum of Memorandum
items 5.a(1) through 5.b(3) must equal Memorandum item 2.b above): (1) RCON
a. Fixed rate time deposits of less than $ 100,000 with a remaining maturity of: ----
(1) Three months or less_________________________________________________________________A225. . 0 M.5.a1
(2) Over three months through 12 months__________________________________________________A226. . 0 M.5.a2
(3) Over one year________________________________________________________________________A227. . 0 M.5.a3
b. Floating rate time deposits of less than $ 100,000 with a repricing frequency of:
(1) Quarterly or more frequently_________________________________________________________A228. . 0 M.5.b1
(2) Annually or more frequently, but less frequently than quarterly______________________A229. . 0 M.5.b2
(3) Less frequently than annually________________________________________________________A230. . 0 M.5.b3
c. Floating rate time deposits of less than $ 100,000 with a remaining maturity of
one year or less (included in Memorandum items 5.b.(1) through 5.b.(3) above)____________A231. . 0 M.5.c
6. Maturity and repricing data for time deposits of $ 100,000 or more (i.e., time
certificates of deposit of $ 100,000 or more and open-account time deposits of
$ 100,000 or more) (sum of Memorandum items 6.a.(1) through 6.b.(4) must equal
the sum of Memorandum items 2.c and 2.d above): (1)
a. Fixed rate time deposits of $ 100,000 or more with a remaining maturity of:
(1) Three months of less_________________________________________________________________A232. . 0 M.6.a1
(2) Over three months through 12 months__________________________________________________A233. . 0 M.6.a2
(3) Over one year through five years_____________________________________________________A234. . 0 M.6.a3
(4) Over five years______________________________________________________________________A235. . 0 M.6.a4
b. Floating rate time deposits of $ 100,000 or more with a repricing frequency of:
(1) Quarterly or more frequently_________________________________________________________A236. . 0 M.6.b1
(2) Annually or more frequently, but less frequently than quarterly______________________A237. . 0 M.6.b2
(3) Every five years or more frequently, but less frequently than annually_______________A238. . 0 M.6.b3
(4) Less frequently than every five years________________________________________________A239. . 0 M.6.b4
c. Floating rate time deposits of $ 100,000 or more with a remaining maturity of
one year or less (included in Memorandum items 6.b.(1) through 6.b.(4) above)____________A240. . 0 M.6.c
</TABLE>
- ----------
(1) Memorandum items 5 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
<PAGE>
17
Schedule RC-F - Other Assets
<TABLE>
<CAPTION>
c130 < -
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
RCON
----
<S> <C>
1. Income earned, not collected on loans (1)__________________________ 2164. . . . 0 1.
2. Net deferred tax assets (2)________________________________________ 2148. . . . 2,136 2.
3. Excess residential mortgage servicing fees receivable______________ 5371. . . . 0 3.
4. Other (itemize and describe amounts greater than $25,000 that
exceed 25% OF this item____________________________________________ 2168. . . . 20,186 4.
TEXT RCON
---- ----
a. 3549: Personal Trust Fees Receivable___________ 3549. . 7,982 . . . . . 4.a
b. 3550:__________________________________________ 3550. . N/A . . . . . 4.b
c. 3551:__________________________________________ 3551. . N/A . . . . . 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, Item 11) 2160. . . . 22,322 5.
<CAPTION>
Memorandum
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
<S> <C>
1. Deferred tax assets disallowed for regulatory capital purposes_____ 5610. . . . 0 M.1
</TABLE>
Schedule RC-G - Other Liabilities
<TABLE>
<CAPTION>
c135 < -
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
RCON
----
<S> <C>
1. a. Interest accrued and unpaid on deposits (3)_____________________ 3645. . . . 0 1.a
b. Other expenses accrued and unpaid (includes accrued income
taxes payable)__________________________________________________ 3646. . . . 11,202 1.b
2. Net deferred tax liabilities (2)___________________________________ 3049. . . . 0 2.
3. Minority interest in consolidated subsidiaries_____________________ 3000. . . . 0 3.
4. Other (itemize and describe amounts greater than $25,000 that
exceed 25% of this item)___________________________________________ 2938. . . . 25,971 4.
TEXT RCON
---- ----
a. 3552: Escheatable Funds_________________________ 3552. . 21,532 . . . . . 4.a
b. 3553: __________________________________________ 3553. . N/A . . . . . 4.b
c. 3554: __________________________________________ 3554. . N/A . . . . . 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20) 2930. . . . 37,173 5.
</TABLE>
- ----------
1) Report income earned, not collected on securities (and on other assets) in
item 4 of Schedule RC-F.
2) See discussion of deferred income taxes in Glossary entry on "income taxes."
3) For saving banks, includes "dividends" accrued and unpaid on deposits.
<PAGE>
18
Schedule RC-K - Quarterly Averages (1)
<TABLE>
<CAPTION>
c155 < -
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
<S> <C>
RCON
----
ASSETS
1. Interest-bearing balances due from depository institutions_________ 3381. . . . 8,372 1.
2. a. U.S. Treasury securities, U.S. Government agency and corporation
obligations, and other debt securities (4) (excluding securities
issued by states and political subdivisions in the U.S.)________ 3649. . . . 0 2.a
b. Equity securities (5)(includes investments in mutual funds and
Federal Reserve stock)__________________________________________ 3648. . . . 750 2.b
3. Securities issued by states and political subdivisions
in the U.S. (4)____________________________________________________ 3383. . . . 300 3.
4. Federal funds sold and securities purchased under agreements to
resell_____________________________________________________________ 3365. . . . 879 4.
5. Loans (2,3):
a. Total loans, net of unearned income (to be completed by those
banks with less than $25 million in assets)_____________________ 3360. . . . 0 5.a
The following four items are to be completed only by those banks
with $25 million or more in total assets.
b. Real estate loans_______________________________________________ 3286. . . . 0 5.b
c. Installment loans_______________________________________________ 3287. . . . 0 5.c
d. Credit cards and related plans__________________________________ 3288. . . . 0 5.d
e. Commercial (time and demand) and all other loans________________ 3289. . . . 0 5.e
6. Lease financing receivables (net of unearned income)_______________ 3484. . . . 0 6.
7. Total assets(6)____________________________________________________ 3368. . . . 80,488 7.
LIABILITIES
8. Interest-bearing transaction accounts (NOW accounts, ATS accounts,
and telephone and preauthorized transfer accounts) (exclude
demand deposits)___________________________________________________ 3485. . . . 0 8.
9. Nontransaction accounts:
a. Money market deposit accounts (MMDAs)___________________________ 3486. . . . 0 9.a
b. Other savings deposits__________________________________________ 3487. . . . 0 9.b
c. Time certificates of deposit of $100,000 or more________________ 3345. . . . 0 9.c
d. All other time deposits (include all time deposits of less than
$100,000 and open-account time deposits of $100,000 or more)____ 3469. . . . 0 9.d
10. Federal funds purchased and securities sold under agreements to
repurchase_________________________________________________________ 3353. . . . 0 10.
<CAPTION>
Memorandum
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. To be completed by banks with $25 million or more in total assets
and with loans to finance agricultural production and other loans
to farmers (Schedule RC-C, part I, item 3) exceeding five percent
of total loans. (3)
RCON
----
Agricultural loans included in items 5.b through 5.e above_________ 3379. . . . 0 M.1
</TABLE>
- ----------
(1) For all items, banks have the option of reporting either (1) an average
of daily figures for the quarter or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter). In addition, averages of four
month-end figures (the last day of the preceding quarter and of each month
of the currently-reported quarter) are allowed for items 2, 3, 5.a through
5.e, 6, 7, and Memorandum item 1.
(2) See instructions for loan classifications used in this schedule.
(3) The $25 million asset size test and the five percent of total loans test
are generally based on the total assets and total loans reported on the
June 30, 1995 Report of Condition.
(4) Quarterly averages for all debt securities should be based on amortized
cost.
(5) Quarterly averages for all equity securities should be based on historical
cost.
(6) The quarterly average for total assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
<PAGE>
19
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>
c160 < -
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
<S> <C>
RCON
----
1. Unused commitments:
a. Revolving, open-end lines secured by 1-4 family residential
properties, e.g., home equity lines_____________________________ 3814. . . . 0 1.a
b. Credit card lines_______________________________________________ 3815. . . . 0 1.b
c. Commercial real estate, construction, and land development:
(1) Commitments to fund loans secured by real estate____________ 3816. . . . 0 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. . . . 0 1.e
2. Financial standby letters of credit (1)____________________________ 3819. . . . 0 2.
RCON
a. Amount of financial standby letters of credit ----
conveyed to others_______________________________ 3820. . 0 . . . . . 2.a
3. Performance standby letters of credit (1)__________________________ 3821. . . . 0 3.
RCON
a. Amount of performance standby letters of credit ----
conveyed to others_______________________________ 3821. . 0 . . . . . 3.a
4. Commercial and similar letters of credit (1)_______________________ 3411. . . . 0 4.
5. Not applicable_____________________________________________________
6. Participations in acceptances (as described in the instructions)
acquired by the reporting (nonaccepting) bank______________________ 3429. . . . 0 6.
7. Securities borrowed________________________________________________ 3432. . . . 0 7.
8. Securities lent (including customers' securities lent where the
customer is indemnified against loss by the reporting bank)________ 3433. . . . 0 8.
9. Loans transferred (i.e., sold or swapped) with recourse that have
been treated as sold for Call Report purposes:
a. FNMA and FHLMC residential mortgage loan pools:
(1) Outstanding principal balance of mortgages as of the
report date_________________________________________________ 3650. . . . 0 9.a.1
(2) Amount of recourse exposure on these mortgages as of the
report date_________________________________________________ 3651. . . . 0 9.a.2
b. Private (nongovernment-issued or -guaranteed) residential mortgage
loan pools:
(1) Outstanding principal balance of mortgages transferred as of
the report date_____________________________________________ 3652. . . . 0 9.b.1
(2) Amount of recourse exposure on these mortgages as of the
report date_________________________________________________ 3653. . . . 0 9.b.2
c. Farmer Mac agricultural mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of
the report date_____________________________________________ 3654. . . . 0 9.c.1
(2) Amount of recourse exposure on these mortgages as of the
report date_________________________________________________ 3655. . . . 0 9.c.2
d. Small business obligations transferred with recourse under
section 208 of the Riegle Community Development and Regulatory
Improvement Act of 1994:
(1) Outstanding principal balance of small business obligations
transferred as of the report date___________________________ A249. . . . 0 9.d.1
(2) Amount of retained recourse on these obligations as of the
report date_________________________________________________ A250. . . . 0 9.d.2
10. When-issued securities:
a. Gross commitments to purchase___________________________________ 3434. . . . 0 10.a
b. Gross commitments to sell_______________________________________ 3435. . . . 0 10.b
11. Spot foreign exchange contracts____________________________________ 8765. . . . 0 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet
derivatives) (itemize and describe each component of this item over
25% of Schedule RC, item 28.a "total equity capital")______________ 3430. . . . 0 12.
TEXT RCON
---- ----
a. 3555:__________________________________________ 3555. . N/A . . . . . 12.a
b. 3556:__________________________________________ 3556. . 0 . . . . . 12.b
c. 3557:__________________________________________ 3557. . N/A . . . . . 12.c
d. 3558:__________________________________________ 3558. . N/A . . . . . 12.d
</TABLE>
- ----------
1) Do not report letters of credit as "contra" items in "Other assets" (Schedule
RC-F) and "other liabilities" (Schedule RC-G).
<PAGE>
20
Schedule RC-L - Continued
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------
13. All other off-balance sheet assets (exclude off-balance sheet derivatives)
(itemize and describe each component of this item over 25% of Schedule RC,
Item 28.a "Total equity capital")_____________________5591. . 0 13.
TEXT RCOW
---- ----
a. 5592:_____________________5592 . . N/A . . . . . . 13.a
b. 5593:_____________________5593 . . N/A . . . . . . 13.b
c. 5594:_____________________5594 . . N/A . . . . . . 13.c
d. 5595:_____________________5595 . . N/A . . . . . . 13.d
<TABLE>
<CAPTION>
C161 < -
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Equity Commodity
Off-Balance Sheet Derivatives Position Interest Rate Foreign Exchange Derivative And Other
Indicators Contracts Contracts Contracts Contracts
- -------------------------------------------- ------------------ ------------------ ------------------ -------------------
<S> <C> <C> <C> <C>
14. Gross amounts (e.g., notional
amounts)(for each column, sum of
items 14.a through 14.e must equal
sum of items 15, 16a., and 16.b): RCON RCON RCON RCON
---- ---- ---- ----
a. Futures contracts___________________8693. . 0 8694. . 0 8695. . 0 8696. . 0 14.a
b. Forward contracts___________________8697. . 0 8698. . 0 8699. . 0 8700. . 0 14.b
c. Exchange-traded option contracts:
(1) Written options_________________8701. . 0 8702. . 0 8703. . 0 8704. . 0 14.c1
(2) Purchased options_______________8705. . 0 8706. . 0 8707. . 0 8708. . 0 14.c2
d. Over-the-counter option contracts:
(1) Written options_________________8709. . 0 8710. . 0 8711. . 0 8712. . 0 14.d1
(2) Purchased options_______________8713. . 0 8714. . 0 8715. . 0 8716. . 0 14.d2
e. Swaps_______________________________3450. . 0 3826. . 0 8719. . 0 8720. . 0 14.e
15. Total gross notional amount of
derivative contracts held for
trading_________________________________A126. . 0 A127. . 0 8723. . 0 8724. . 0 15.
16. Total gross notional amount of
derivative contracts held for
purposes other than trading:
a. Contracts marked to market__________8725. . 0 8726. . 0 8727. . 0 8728. . 0 16.a
b. Contracts not marked to market______8729. . 0 8730. . 0 8731. . 0 8732. . 0 16.b
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------
<S> <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 RCON
unused portions of commitments that are fee paid or otherwise legally ----
binding)_____________________________________________________________________3833. . 0 M.3
</TABLE>
- -------------
<PAGE>
21
Schedule RC-M - Memoranda
<TABLE>
<CAPTION>
C165 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <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, RCON
----
principal shareholders and their related interests_________________________________________6164. . 0 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 RCON Number
lesser of $ 500,000 or 5 percent of total capital as ---- ------
defined for this purpose in agency regulations_________6165. . 0 . . . . . 1.b
2. Not applicable
3. a. Noninterest-bearing balances due from commercial banks in the U.S. (included in RCON
Schedule RC, item 1.a) (exclude balances due from Federal Reserve Banks and cash ----
items in process of collection)____________________________________________________________0050. . 49,374 3.a
b. Currency and coin (included in Schedule RC, item 1.a)______________________________________0080. . 0 3.b
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for RCON
others (include both retained servicing and purchased servicing): ----
a. Mortgages serviced under a GNMA contract___________________________________________________5500. . 0 4.a
b. Mortgages serviced under a FHLMC contract:
(1) Serviced with recourse to servicer_____________________________________________________5501. . 0 4.b.1
(2) Serviced without recourse to servicer:_________________________________________________5502. . 0 4.b.2
c. Mortgages serviced under a FNMA contract:
(1) Serviced under a regular option contract_______________________________________________5503. . 0 4.c.1
(2) Serviced under a special option contract_______________________________________________5504. . 0 4.c.2
d. Mortgages serviced under other servicing contracts_________________________________________5505. . 0 4.d
5. Not applicable.
RCON
6. Intangible assets: ----
a. Mortgage servicing rights__________________________________________________________________3164. . 0 6.a
b. Other identifiable intangible assets:
(1) Purchased credit card relationships____________________________________________________5506. . 0 6.b.1
(2) All other identifiable intangible assets_______________________________________________5507. . 1,020 6.b.2
c. Goodwill___________________________________________________________________________________3163. . 0 6.c
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10)_____________________2143. . 1,020 6.d
e. Amount of intangible assets (inluded in item 6.b.(2) above)that have been
grandfathered or are otherwise qualifying for regulatory capital purposes__________________6442. . 0 6.e
RCON
7. Mandatory convertible debt, net of common or perpetual preferred stock dedicated to ----
redeem the debt________________________________________________________________________________3295. . 0 7.
RCON
8. a. Other real estate owned: ----
(1) Direct and indirect investments in real estate ventures________________________________5372. . 0 8.a.1
(2) All other real estate owned:
(a) Construction and land development__________________________________________________5508. . 0 8.a.2a
(b) Farmland___________________________________________________________________________5509. . 0 8.a.2b
(c) 1-4 family residential properties__________________________________________________5510. . 0 8.a.2c
(d) Multifamily (5 or more) residential properties_____________________________________5511. . 0 8.a.2d
(e) Nonfarm nonresidential properties__________________________________________________5512. . 0 8.a.2e
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7)______________2150. . 0 8.a.3
b. Investments in unconsolidated subsidiaries and associated companies:
(1) Direct and Indirect investments in real estate ventures________________________________5374. . 0 8.b.1
(2) All other investments in unconsolidated subsidiaries and associated companies__________5375. . 0 8.b.2
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8)______________2130. . 0 8.b.3
c. Total assets of unconsolidated subsidiaries and associated companies_______________________5376. . 0 8.c
</TABLE>
<PAGE>
22
Schedule RC-M - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RCON
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC, ----
item 23, "Perpetual preferred stock and related surplus"_______________________________________3778. . 0 9.
10. Mutual fund and annuity sales during the quarter (include proprietary, private label, RCON
and third party products): ----
a. Money market funds_________________________________________________________________________6441. . 0 10.a
b. Equity securities funds____________________________________________________________________8427. . 0 10.b
c. Debt securities funds______________________________________________________________________8428. . 0 10.c
d. Other mutual funds_________________________________________________________________________8429. . 0 10.d
e. Annuities__________________________________________________________________________________8430. . 0 10.e
f. Sales of propietary mutual funds and annuities (included in items 10.a through
10.e above)________________________________________________________________________________8784. . 0 10.f
<CAPTION>
Memorandum
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Interbank holdings of capital instruments (to be completed for the December report RCON
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>
<PAGE>
23
Schedule RC-N - Past Due and Nonaccrual Loans (1), Leases, and Other Assets
The FFIEC regards the information reported in all of Memorandum item 1, in
items 1 through 7, column A, and in Memorandum items 2 through 4, column A,
as confidential.
<TABLE>
<CAPTION>
C170 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
-------(Column A)------- -------(Column B)------- -------(Column C)-------
Past due 30 through 89 Past due 90 days or more Nonaccrual
days and still accruing and still accruing
------------------------ ------------------------ ------------------------
<S> <C> <C> <C>
RCON RCON RCON
---- ---- ----
1. Real estate loans_________________________1210. . 0 1211. . 0 1212. . 0 1.
2. Installment loans_________________________1214. . 0 1215. . 0 1216. . 0 2.
3. Credit cards and related plans____________1218. . 0 1219. . 0 1220. . 0 3.
4. Commercial (time and demand) and all
other loans_______________________________1222. . 0 1223. . 0 1224. . 0 4.
5. Lease financing receivables_______________1226. . 0 1227. . 0 1228. . 0 5.
6. Debt securities and other assets (exclude
other real estate owned and other
repossessed assets)_______________________3505. . 0 3506. . 0 3507. . 0 6.
- -----------------------------------------------------------------------------------------------------------------------------------
Amounts reported in items 1 through 5 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and
leases. Report in item 7 below certain guaranteed loans and leases that have already been included in the amounts reported in
items 1 through 5.
7. Loans and leases reported in items 1
through 5 above which are wholly or RCON RCON RCON
partially guaranteed by the U.S. ---- ---- ----
Government_______________________________5612. . 0 5613. . 0 5614. . 0 7.
a. Guaranteed portion of loans and leases
included in item 7 above______________5615. . 0 5616. . 0 5617. . 0 7.a
<CAPTION>
Memoranda C173 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Restructured loans and leases included in
Schedule RC-N, items 1 through 5, above RCON RCON RCON
(and not reported in Schedule RC-C, ---- ---- ----
Memorandum item 1)_______________________1658. . 0 1659. . 0 1661. . 0 M.1
2. To be completed by banks with loans to
finance agricultural production and other
loans to farmers (Schedule RC-C, part I,
item 3) exceeding five percent of total
loans: RCON RCON RCON
Agricultural loans included in Schedule ---- ---- ----
RC-N, items 1 through 4, above___________1230. . 0 1231. . 0 1232. . 0 M.2
3. Loans to finance commercial real estate,
construction, and land development
activities (not secured by real estate) RCON RCON RCON
included in Schedule RC-N, items 2 ---- ---- ----
through 4, above_________________________5421. . 0 5422. . 0 5423. . 0 M.3
4. Real estate loans (sum of Memorandum
items 4.a through 4.e must equal RCON RCON RCON
Schedule RC-N, item 1, above): ---- ---- ----
a. Construction and land development_____5424. . 0 5425. . 0 5426. . 0 M.4a
b. Secured by farmland___________________5427. . 0 5428. . 0 5429. . 0 M.4b
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___________________5430. . 0 5431. . 0 5432. . 0 M.4c1
(2) All other loans secured by 1-4
family residential properties_____5433. . 0 5434. . 0 5435. . 0 M.4c2
d. Secured by multifamily (5 or more)
residential properties________________5436. . 0 5437. . 0 5438. . 0 M.4d
e. Secured by nonfarm nonresidential
properties____________________________5439. . 0 5440. . 0 5441. . 0 M.4e
</TABLE>
- ----------
(1) See instructions for loan classification used in this schedule.
<PAGE>
24
Schedule RC-O - Other Data for Deposit Insurance Assessments
<TABLE>
<CAPTION>
C175 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RCON
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)__________________________________________________________________________3520. . 0 3.
4. Deposits of consolidated subsidiaries (not included in total deposits):
a. Demand deposits of consolidated subsidiaries__________________________________________2211. . 0 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. Not applicable.
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 balance 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: RCON
a. Amount reflected in demand deposits (included in Schedule RC-E, item 4 or 5, ----
column B)_____________________________________________________________________________2314. . 0 6.a
b. Amount reflected in time and savings deposits (1) (included in Schedule RC-E,
item 4 or 5, column A or C, but not column B)_________________________________________2315. . 0 6.b
7. Unamortized premiums and discounts on time and savings deposits:(1)
a. Unamortized premiums__________________________________________________________________5516. . 0 7.a
b. Unamortized discounts_________________________________________________________________5517. . 0 7.b
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. . N/A 8.
9. Deposits in lifeline accounts____________________________________________________________ . . . . . . . . . . 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total
deposits)________________________________________________________________________________8432. . 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.
<PAGE>
25
Schedule RC-O - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
11. Adjustments to demand deposits reported in Schedule RC-E for certain reciprocal
demand balances:
a. Amount by which demand deposits would be reduced if reciprocal demand balances RCON
between the reporting bank and savings associations were reported on a net basis ----
rather than a gross basis in Schedule RC-E____________________________________________8785 0 11.a
b. Amount by which demand deposits would be increased if reciprocal demand balances
between the reporting bank and U.S. branches and agencies of foreign banks were
reported on a gross basis rather than a net basis in Schedule RC-E____________________A181 0 11.b
c. Amount by which demand deposits would be reduced if cash items in process of
collection were included in the calculation of net reciprocal demand balances
between the reporting bank and the domestic offices of U.S. banks and savings
associations in Schedule RC-E_________________________________________________________A182 0 11.c
<CAPTION>
Memoranda
(To be completed each quarter except as noted) Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Total deposits of the bank
(sum of Memorandum items 1.a.(1) and 1.b.(1) must equal Schedule RC, item 13.a): RCON
a. Deposit accounts of $100,000 or less: ----
(1) Amount of deposit accounts of $100,000 or less_____________________________________2702. . 0 M.1.a1
RCON Number
(2) Number of deposit accounts of $100,000 or less ---- ------
(to be completed for the June report only)____________3779. . 0 . . . . . . . . M.1.a2
b. Deposit accounts of more than $100,000:
(1) Amount of deposit accounts of more than $100,000___________________________________2710. . 0 M.1.b1
RCON Number
(2) Number of deposit accounts of more than ---- ------
$100,000______________________________________________2722. . 0 . . . . . . . . M.1.b2
2. Estimated amount of uninsured deposits 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 right whether your bank has a method or procedure RCON YES NO
for determining a better estimate of uninsured deposits than the estimate ---- --- --
described above_______________________________________________________________________6861. . X M.2.a
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
- -----------------------------------------------------------------------------------------------------------------------------------
C177 < -
</TABLE>
Person to whom questions about the Reports of Condition and Income should be
directed:
(612) 973-3306
Diane F. Hamernik, Accountant
- -------------------------------------------------------------------------------
Name and Title (TEXT 8901) Area code/phone number/extension (TEXT 8902)
<PAGE>
26
Schedule RC-R - Regulatory 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,
1995, must complete items 2 through 9 and Memoranda items 1 and 2. Banks with
assets of less than $1 billion must complete items 1 through 3 below or Schedule
RC-R in its entirety, depending on their response to item 1 below.
1. Test for determining the extent to which Schedule
RC-R must be completed. To be completed only by
banks with total assets of less than $1
billion. Indicate in the appropriate box at the C180 < -
right whether the bank has total capital RCON YES NO
greater than or equal to eight percent of ---- --- --
adjusted total assets___________________________ 6056 X 1.
For purposes of this test, adjusted total assets equals total assets
less cash, U.S. Treasuries, U.S. Government agency obligations, and 80
percent of U.S. Government-sponsored agency obligations plus the
allowance for loan and lease losses and selected off-balance sheet items
as reported on Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to
complete items 2 and 3 below. If the box marked NO has been checked, the
bank must complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's
actual risk-based capital ratio is less than eight percent or that the
bank is not in compliance with the risk-based capital guidelines.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C>
--------------------------------------------------
NOTE: All banks are required to complete (Column A) (Column B)
items 2 and 3 below. See optional worksheet Subordinated Debt (1) and
for items 3.a through 3.f. Intermediate Term Other Limited-Life
Preferred Stock Capital Instruments
2. Subordinated debt (1) and other limited-life capital ------------------------- ----------------------
instruments (original weighted average maturity of at
least five years) with a remaining maturity of: RCON RCON
---- ----
a. One year or less______________________________________3780. . 0 3786. . 0 2.a
b. Over one year through two years_______________________3781. . 0 3787. . 0 2.b
c. Over two years through three years____________________3782. . 0 3788. . 0 2.c
d. Over three years through four years___________________3783. . 0 3789. . 0 2.d
e. Over four years through five years____________________3784. . 0 3790. . 0 2.e
f. Over five years_______________________________________3785. . 0 3791. . 0 2.f
3. Amounts used in calculating regulatory capital ratios (report amounts
determined by the bank for its own internal regulatory capital analyses):
a. Tier 1 capital_______________________________________________________________________8274. . 53,302 3.a
b. Tier 2 capital_______________________________________________________________________8275. . 0 3.b
c. Total risk-based capital_____________________________________________________________3792. . 53,302 3.c
d. Excess allowance for loan and lease losses___________________________________________A222. . 0 3.d
e. Risk-weighted assets_________________________________________________________________A223. . 48,961 3.e
f. Average total assets_________________________________________________________________A224. . 79,461 3.f
</TABLE>
Items 4-9 and Memoranda items 1 and 2 are to be completed
by banks that answered NO to item 1 above and by banks
with total assets of $1 billion or more.
<TABLE>
<CAPTION>
-------------------------------------------------------
(Column A) (Column B)
Assets Recorded on the Credit Equivalent Amount
Balance Sheet off-Balance Sheet items (2)
---------------------- ---------------------------
<S> <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. RCON RCON
Government and its agencies and other OECD ---- ----
central governments_______________________________3794. . N/A . . . . . . . . 4.a.1
(2) All other_________________________________________3795. . 750 . . . . . . . . 4.a.2
b. Credit equivalent amount of off-balance sheet items___ . . . . . . . . . . 3796. . N/A 4.b
</TABLE>
- ---------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not report in column B the risk-weighted amount of assets reported in
column A.
<PAGE>
27
Schedule RC-R - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C>
-------------------------------------------------------
5. Assets and credit equivalent amounts of off-balance (Column A) (Column B)
sheet items assigned to the 20 percent risk Assets Recorded on the Credit Equivalent Amount
category: Balance Sheet off-Balance Sheet Items (1)
---------------------- ---------------------------
a. Assets recorded on the balance sheet:
(1) Claims conditionally guaranteed by the U.S. RCON RCON
Government and its agencies and other OECD ---- ----
central governments_______________________________3798. . N/A . . . . . . . . 5.a.1
(2) Claims collateralized by securities issued by
the U.S. Government and its agencies and other
OECD central governments; by securities issued
by U.S. Government-sponsored agencies; and by
cash on deposit___________________________________3799. . N/A . . . . . . . . 5.a.2
(3) All other_________________________________________3800. . 50,953 . . . . . . . . 5.a.3
b. Credit equivalent amount of off-balance sheet items___ . . . . . . . . . 3801. . N/A 5.b
6. Assets and credit amount of off-balance
sheet items assigned to the 50 percent risk category:
a. Assets recorded on the balance sheet__________________3802. . 3 . . . . . . . . 6.a
b. Credit equivalent amount of off-balance sheet items___ . . . . . . . . . 3803. . N/A 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. . 39,789 . . . . . . . . 7.a
b. Credit equivalent amount of off-balance sheet items___ . . . . . . . . . 3805. . N/A 7.b
8. On-balance sheet asset values excluded from the
calculation of the risk-based capital ratio(2)___________3806. . 7 . . . . . . . . 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.c plus items 4.b and 4.c)___________3807. . 91,502 . . . . . . . . 9.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C>
RCON
1. Current credit exposure across all off-balance sheet derivative contracts ----
covered by the risk-based capital standards_________________________________________8764. . N/A M.1
</TABLE>
<TABLE>
<CAPTION>
------------------------ With a remaining maturity of -------------------------
(Column A) (Column B) (Column C)
Over one year
One year or less through five years Over five years
-------------------- ---------------------- -----------------------
<S> <C> <C> <C>
2. Notional principal amounts of off-balance
sheet derivative contracts: (3) RCON RCON RCON
---- ---- ----
a. Interest rate contracts 3809. . N/A 8766. . N/A 8767 N/A M.2a
b. Foreign exchange contracts 3812. . N/A 8769. . N/A 8770 N/A M.2b
c. Gold contracts 8771. . N/A 8772. . N/A 8773 N/A M.2c
d. Other precious metals contracts 8774. . N/A 8775. . N/A 8776 N/A M.2d
e. other commodity contracts 8777. . N/A 8778. . N/A 8779 N/A M.2e
f. Equity derivative contracts A000. . N/A A001. . N/A A002 N/A M.2f
</TABLE>
- ---------
(1) Do not report in column B the risk-weighted amount of assets reported in
column A.
(2) Include the difference between the fair value and the amortized cost of
available-for-sale securities in item 8 and report the amortized cost of
these securities in items 4 through 7 above. Item 8 also includes
on-balance sheet asset values (or portions thereof) of off-balance sheet
interest rate, foreign exchange rate, and commodity contracts and those
contracts (e.g. future contracts) not subject to risk-based capital.
Exclude from item 8 margin accounts 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) Exclude foreign exchange contracts with an original maturity of 14 days or
less and all futures contracts.
<PAGE>
28
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on June 30, 1996
<TABLE>
<CAPTION>
FIRST TRUST NATIONAL ASSOCIATION ST. PAUL MN
- -------------------------------------------------------------- ------------------------ -------------------------------
<S> <C> <C>
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit the truncated statement will appear as the bank's statement
a brief narrative statement on the amounts reported in the both on agency computerized records and in computer-file re-
Reports of Condition and Income. This optional statement will leases to the public.
be made available to the public, along with the publicly
available data in the Reports of Condition and Income, in re- All information furnished by the bank in the narrative state-
sponse to any request for individual bank report data, How- ment must be accurate and not misleading. Appropriate efforts
ever, the information reported in column A and in all of Memo- shall be taken by the submitting bank to ensure the statement's
randum item 1 of Schedule RC-N is regarded as confidential and accuracy. The statement must be signed, in the space provided
will not be released to the public. BANKS CHOOSING TO SUBMIT below, by a senior officer of the bank who thereby attests to
THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT DOES its accuracy.
NOT CONTAIN THE NAMES OR OTHER IDENTIFICATION OF INDIVIDUAL
BANK CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CON- If, subsequent to the original submission, material changes are
FIDENTIAL ITEMS IN SCHEDULE RC-N, OR ANY OTHER INFORMATION submitted for the data reported in the Reports of Condition and
THAT THEY ARE NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD Income, the existing narrative statement will be deleted from
COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing not the files, and from disclosure; the bank, at its option, may
to make a statement may check the "No comment" box below and replace it with a statement, under signature, appropriate to
should make no entries of any kind in the space provided for the amended data.
the narrative statement; i.e., DO NOT enter in this space such
phrases as "No statement," "Not applicable," "N/A," "No The optional narrative statement will appear in agency records
comment," and "None." 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 optional statement must be entered on this sheet. The the 750-character limit described above). THE STATEMENT WILL
statement should not exceed 100 words. Further, regardless NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY
of the number of words, the statement must not exceed 750 AGENCIES FOR ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT
characters, including punctuation, indentation, and standard SHALL NOT SIGNIFY THAT ANY FEDERAL SUPERVISORY AGENCY HAS VERI-
spacing between words and sentences. If any submission should FIED OR CONFIRMED THE ACCURACY OF THE INFORMATION CONTAINED
exceed 750 characters, as defined, it will be truncated at 750 THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY PUBLIC
characters with no notice to the submitting bank and RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT
OF THE REPORTING BANK.
- -----------------------------------------------------------------------------------------------------------------------------------
C171 C172 < -
</TABLE>
No comment: X (RCON 6979)
BANK MANAGEMENT STATEMENT (please type or print clearly) (TEXT 6980):
-------------------------------------- -----------------
Signature of Executive Officer of Bank Date of Signature
<PAGE>
29
THIS PAGE TO BE COMPLETED BY ALL BANKS
- -------------------------------------------------------------------------------
OMB No. for OCC: 1557-0081
OMB No. for FDIC: 3064-0052
OMB No. for Federal Reserve: 7100-0036
Expiration Date: 03/31/99
SPECIAL REPORT
(Dollar Amounts in Thousands)
CLOSE OF BUSINESS DATE: FDIC Certificate Number:
June 30, 1996 90319 C700 < -
- -------------------------------------------------------------------------------
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>
<CAPTION>
RCON
----
<S> <C>
a. Number of loans made to executive officers
since the previous Call Report date__________3561. . NONE a
b. Total dollar amount of above loans (in
thousands of dollars)________________________3562. . 0 b
c. Range of interest charged on above loans
(example: 9-3/4% = 9.75)________________7701/7702. . 0.00% to 0.00% c
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
<S> <C>
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT: DATE (Month, Day, Year):
/s/ [ , Asst. Secretary] 7-12-96
- -----------------------------------------------------------------------------------------------------------
NAME AND TITLE OF PERSON TO WHOM INQUIRES MAY BE DIRECTED: (TEXT 8903) AREA CODE/PHONE NUMBER/EXTENSION
(TEXT 8904)
(612) 973-3306
Diane F. Hamernik, Accountant
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 25-A-2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-2
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF AN INDIVIDUAL
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(B)(2) . . . [ ]
JAMES A. EHRENBERG ###-##-####
(NAME OF TRUSTEE) (SOCIAL SECURITY NUMBER)
C/O FIRST TRUST NATIONAL ASSOCIATION
180 EAST FIFTH STREET
SAINT PAUL, MINNESOTA 55101
(BUSINESS ADDRESS: STREET, CITY, STATE AND ZIP CODE)
OTTER TAIL POWER COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
Minnesota 41-0462685
(State of Incorporation) (I.R.S. Employer Identification No.)
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
(Address of Principal Executive Offices) (Zip Code)
___% FIRST MORTGAGE BONDS
(TITLE OF THE INDENTURE SECURITIES)
<PAGE>
GENERAL
1. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None
2. TRUSTEESHIPS UNDER OTHER INDENTURES. If the trustee is trustee under
another indenture under which any other securities, or certificates of
interest or participation in any other securities, of the obligor are
outstanding, file a copy of each such indenture as an exhibit and furnish
the following information:
(a) Title of the securities outstanding under each such other indenture.
There is no such other indenture.
(b) A brief statement of the facts relied upon by the trustee as a basis
for the claim that no conflicting interest within the meaning of
Section 310(b)(1) of the Act arises as a result of the trusteeship
under such other indenture, including a statement as to how the
indenture securities will rank as compared with the securities issued
under such other indenture.
Not applicable.
ITEMS 3-11 ARE NOT APPLICABLE BECAUSE TO THE BEST OF THE TRUSTEE'S KNOWLEDGE THE
OBLIGOR IS NOT IN DEFAULT UNDER ANY INDENTURE FOR WHICH THE TRUSTEE ACTS AS
TRUSTEE.
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what persons are
owners of 10% or more of the voting securities of the obligor or its affiliates,
and what persons are controlling, controlled by or under common control with,
the obligor or its affiliates, are based upon information furnished to the
trustee by the obligor. While the trustee has no reason to doubt the accuracy
of any such information, it cannot accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, I JAMES A.
EHRENBERG, have signed this statement of eligibility in the City of St. Paul and
State of Minnesota on the 27th day of August, 1996.
By /s/ James A. Ehrenberg
-----------------------------------
(Signature of Trustee)
James A. Ehrenberg
<PAGE>
EXHIBIT 25-A-3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(B)(2)...[ ]
FIRST TRUST NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
OTTER TAIL POWER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Minnesota 41-0462685
(State of Incorporation) (I.R.S. Employer Identification No.)
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
(Address of Principal Executive Offices) (Zip Code)
__% DEBENTURES
(TITLE OF THE INDENTURE SECURITIES)
<PAGE>
GENERAL
1. GENERAL INFORMATION. Furnish the following information as to the trustee -
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's knowledge
the obligor is not in default under any Indenture for which the Trustee acts
as Trustee
16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.
2. Copy of Certificate of Authority to Commence Business.
3. Authorization of the Trustee to exercise corporate trust powers.
4. Copy of existing By-Laws.
5. Copy of each Indenture referred to in item 4.
6. The consents of the trustee required by Section 321(b) of the Act
7. Copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what persons
are owners of 10% or more of the voting securities of the obligor or its
affiliates, and what persons are controlling, controlled by or under common
control with, the obligor or its affiliates, are based upon information
furnished to the trustee by the obligor. While the trustee has no reason to
doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
First Trust National Association, a National Trust Association organized and
existing under the laws of the United States, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of St. Paul and State of Minnesota on the 27th
day of August, 1996.
FIRST TRUST NATIONAL ASSOCIATION
/s/ James A. Ehrenberg
- ---------------------------------
James A. Ehrenberg
Senior Vice President
/s/ Diane Chalupsky
- ---------------------------------
Diane Chalupsky
Assistant Secretary
<PAGE>
Exhibit 1
FIRST TRUST NATIONAL ASSOCIATION
I, Elizabeth Becker, the Secretary of First Trust National Association, a
national banking association organized under the laws of the United States,
hereby certify that the attached copy of the Articles of Association of First
Trust National Association is full, true and complete copy of the original. I
further certify that such Articles of Association have not been revoked and
remain in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of First
Trust National Association to be affixed hereto this 18th day of February,
1992.
(Corporate Seal) /s/ Elizabeth Becker
----------------------------
Elizabeth Becker
Secretary
Sworn to before me this
18th day of February, 1992.
/s/ Jeanne M. Erickson
- ---------------------------------
Notary Public
certified/bylaws [logo]
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
FIRST. The title of the Association, which shall carry on the business
of banking under the laws of the United States, shall be "First Trust
National Association". Notwithstanding the foregoing, however, the Associaton
shall not engage in any banking activities other than those within the scope
of 12 U.S.C. Section 92a, and 12 C.F.R. 9, without the prior written approval
of the Comptroller of the Currency.
SECOND. The main office of the Association shall be in Saint Paul,
County of Ramsey, State of Minnesota. The general business of the Association
shall be conducted at its main office and branches.
THIRD. The board of directors of the Association shall consist of not
less than five nor more than 25 members. At any meeting of the shareholders
held for the purpose of electing directors, or changing the number thereof,
the number of directors may be determined by a majority votes cast by the
shareholders in person or by proxy. Between meetings of the shareholders held
for the purpose of electing directors, the board of directors by a majority
vote of the full board may increase the size of the board by not more than
four directors in any one year, but not to more than a total of 25 directors,
and fill any vacancy created on the board. A majority of the board of
directors shall be necessary to constitute a quorum for the transaction of
business at any directors' meeting. Each director during the full term of
directorship, shall own a minimum of One Thousand Dollars ($1,000.00) par
value of stock of the Association, or an equivalent interest in stock of
First Bank System, Inc.
FOURTH. The regular annual meeting of the shareholders of the
Association shall be held at its main office, or other convenient place duly
authorized by the board of directors, on such day of each year as is
specified therefore in the Bylaws, but if no election is held on that day, it
may be held on any subsequent day according to such lawful rules as may be
prescribed by the board of directors.
FIFTH. The amount of capital stock of the Association shall be divided
into 10,000 shares of common stock at the par value of One Hundred Dollars
($100.00) each; but such capital stock may be increased or decreased from
time to time, in accordance with the provisions of the laws of the United
States.
If the capital stock is increased by the sale of additional shares
thereof, each shareholder shall be entitled to subscribe for such additional
shares in proportion to the number of shares of each capital stock owned by
each such shareholder at the time
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
the increase is authorized by the shareholders, unless another time
subsequent to the date of the shareholders' meeting is specified in a
resolution adopted by the shareholders at the time the increase is
authorized. The board of directors shall have the power to prescribe a
reasonable period of time within which the pre-emptive rights to subscribe to
the new shares of capital stock must be exercised.
If the capital stock is increased by a stock dividend, each shareholder
shall be entitled to such shareholder's proportionate amount of such increase
in accordance with the number of shares of capital stock owned by such
shareholder at the time the increase is authorized by the shareholders,
unless another time subsequent to the date of the shareholders' meeting is
specified in a resolution adopted by the shareholders at the time the
increase is authorized.
The Association, at any time and from time to time, may authorize and
issue debt obligations, whether or not subordinated, without the approval of
the shareholders. In the event such debt obligations are convertible to
capital stock of the Association, each shareholder shall be entitled to
subscribe for such additional shares in proportion to the number of shares of
capital stock owned by such shareholder one month prior to the issuance of
capital stock in satisfaction of such convertible debt obligations.
SIXTH. The board of directors shall appoint one of its members as the
Association's chief executive officer (however titled) who shall have and
exercise the rights and responsibilities of "president" as established by
law. Such chief executive officer shall be chairman of the board, unless the
board appoints another director to be chairman. The board shall have the
power to appoint (or provide for the appointment of) such officers and
employees as may be required to transact the business of the Association; to
fix the salaries to be paid to such officers and employees of the
Association; and to dismiss any of such officers or employees and appoint
others to take their places.
The board of directors shall have the power to define the duties of
officers and employees of the Association and to require adequate bonds from
them for the faithful performance of their duties; to regulate the manner in
which any increase of the capital of the Association shall be made; to make
all Bylaws that may be lawful for the general regulation of the business of
the Association and the management of its affairs; and generally to do and
perform all acts that may be lawful for a board of directors to do and
perform.
-2-
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
SEVENTH. The board of directors shall have the power to change the
location of the main office of the Association to any other place within the
limits of Saint Paul, Minnesota, without the approval of the shareholders of
the Association but subject to the approval of the Comptroller of
the Currency; and shall have the power to change the location of any branch
or branches of the Association to any other location, without the approval of
the shareholders of the Association but subject to the approval of the
Comptroller of the Currency.
EIGHTH. The Association shall have succession from the date of its
organization certificate until such time as it be dissolved by the act of its
shareholders in accordance with the provisions of the laws of the United
States, or until its franchise becomes forfeited by reason of violation of
law, or until terminated by either a general or a special act of Congress, or
until its affairs be placed in the hands of a receiver and finally wound up
by such receiver.
NINTH. The board of directors of the Association, or any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock
of the Association, may call a special meeting of shareholders at any time.
Provided, however, that unless otherwise provided by law, not less than ten
days prior to the date fixed for any such meeting, a notice of the time,
place, and purpose of the meeting shall be given by first-class mail, postage
prepaid, to all shareholders of record of the Association at their respective
addresses as shown upon the books of the Association.
TENTH. Any action required to be taken at a meeting of the shareholders
or directors or any action which may be taken at a meeting of the
shareholders or directors may be taken without a meeting if consent in
writing, setting forth the action as taken shall be signed by all the
shareholders or directors entitled to vote with respect to the matter
thereof. Such action shall be effective on the date on which the last
signature is placed on the writing, or such earlier date as is set forth
therein.
ELEVENTH. Meetings of the board of directors or shareholders, regular or
special, may be held by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can simultaneously hear each other, and participation in such meeting
by such aforementioned means shall constitute presence in person at such
meeting.
TWELFTH. Any person, such person's heirs, executors, or administrators,
may be indemnified or reimbursed by the Association for reasonable expenses
actually incurred in connection with any action, suit or proceeding, civil or
-3-
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
criminal to which such person or such person's heirs, executors, or
administrators shall be made a party by reason of such person being or having
been a director, advisory director, officer, employee, or agent of the
Association or of any firm, corporation, or organization which such person
served in any such capacity at the request of the Association. Provided,
however, that no person shall be so indemnified or reimbursed in relation to
any matter in such action, suit or proceeding as to which such person shall
finally be adjudged to have been guilty of or liable for gross negligence,
willful misconduct or criminal acts in the performance of such person's
duties to the Association. And, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of
record of a majority of the outstanding shares of the Association, or the
board of directors acting by vote of directors not parties to the same or
substantially the same action, suit or proceeding, constituting a majority of
the whole number of directors. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which such persons,
their heirs, executors, or administrators, may be entitled as a matter of law.
The Association may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying its
directors, advisory directors, officers, employees and agents to the extent
that such indemnification is allowed in the preceding paragraph. Such
insurance shall not provide coverage of liability for any formal order issued
by a regulatory authority assessing civil money penalties against an officer,
director or employee. Further, such insurance may, but need not be, for the
benefit of all directors, advisory directors, officers, employees or agents.
Expenses incurred by an officer, director or employee in defending a
civil or criminal action, suit or proceeding may be paid by the Association
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such individual or officer to
repay such amount if it shall ultimately be determined that such individual
is not entitled to be indemnified by the Association. Prior to the
advancement of any such expenses, the board of directors shall determine in
writing that all of the following conditions are met: (1) the officer,
director or employee has a substantial likelihood of prevailing on the
merits; (2) in the event the officer, director or employee does not prevail,
he or she will have the financial capability to reimburse the Association; and
(3) payment of such expenses by the Association will not adversely affect
bank safety and soundness. If at any time the board of directors believes, or
should reasonably believe, that any of the above conditions are not met, the
-4-
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
Association shall cease paying such expenses. Further, the Association shall
enter into a written agreement with the director, officer or employee
specifying the conditions under which such individual shall reimburse the
Association.
THIRTEENTH. These Articles of Association may be amended at any regular
or special meeting of the shareholders by the affirmative vote of the holders
of a majority of the stock of the Association, unless the vote of the holders
of a greater amount of stock is required by law and in that case by the vote
of the holders of such greater amount. The notice of any shareholders'
meeting at which an amendment to the Articles of Association of the
Association is to be considered, shall be given as hereinabove set forth.
---- ---- ----
-5-
<PAGE>
Exhibit 2
OFFICE OF COUNTY RECORDER
RAMSEY COUNTY, MINNESOTA
I, JOHN C. MCLAUGHLIN, County Recorder of said County and
State, do hereby certify that I have compared the foregoing paper photograph
with the original record now remaining in this office, and that the same is a
correct photographic transcript therefrom and of the whole of said original
record as the same appears in Ramsey County Records as Document Number
2426124.
(County Recorder Seal) In Witness Whereof, I have hereunto
subscribed my name and affixed my
official seal of the City of St. Paul,
in said County, this 4th day of
February, A.D. 1988
JOHN C. MCLAUGHLIN, County Recorder
By: Barbara Vikliman Deputy
-------------------------
ROS201
<PAGE>
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
Washington, D.C.
WHEREAS, satisfactory evidence has been presented to the Comptroller of
the Currency that FIRST TRUST COMPANY, INC., located in ST. PAUL State of
MINNESOTA has complied with all provisions of the states of the United States
required to be complied with before being authorized to commence the business
of banking as a National Banking Association.
NOW, THEREFORE. Thereby certify that the above named association is
authorized to commence the business of banking as a National Banking
Association under the title "FIRST TRUST NATIONAL ASSOCIATION" effective
DECEMBER 31, 1987
( SEAL ) In testimony whereof, witness my signature and seal of
office this 31st day of December 1987
Charter No. 21467 /s/ Robert R. Klinzing
-------------------------------
Robert R. Klinzing
Deputy Comptroller of the Currency
Midwestern District
<PAGE>
Exhibit 3
Comptroller of the Currency
Administrator of National Banks
Midwestern District
2345 Grand Avenue, Suite 700
Kansas City, Missouri 64105
December 31, 1987
Mr. Mark W. Sheffert
Chairman of the Board & CEO
First Trust National Association
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
Dear Mr. Sheffert:
The Office of the Comptroller of the Currency has received, reviewed, and
found no exception to the documents submitted by your bank to complete the
conversion process.
Your charter certificate is enclosed. You are authorized to commence business
as a national trust association on December 31, 1987. This national trust
company will not engage in any banking activities other than those within the
scope of 12 U.S.C. 92a, and 12 C.F.R. 9, without the prior written approval of
the OCC.
This letter also hereby constitutes official authorization by the Office to
exercise fiduciary powers. A separate fiduciary powers permit will be sent
under separate cover by the Trust Activities Division in Washington, D.C.
Sincerely,
/s/ Thomas C. McAllister
- ----------------------------
Thomas C. McAllister
Director for Analysis
Midwestern District
<PAGE>
- ------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- ------------------------------------------------------------------------------
Washington, D.C. 20219
TRUST CERTIFICATE
WHEREAS, FIRST TRUST NATIONAL ASSOCIATION, located in St. Paul, State of
Minnesota, being a National Banking Association, organized under the statutes
of the United States, has made application for authority to act as fiduciary;
AND WHEREAS, applicable provisions of the statutes of the United States
authorize the grant of such authority;
NOW THEREFORE, I hereby certify that the said association was granted the
authority to act in all fiduciary capacities permitted by such statutes,
effective December 31, 1987.
( SEAL ) IN TESTIMONY WHEREOF, witness my
signature and seal of Office this
Eighth day of September 1989.
/s/ ROBERT L. CLARKE
--------------------------------
ROBERT L. CLARKE
COMPTROLLER OF THE CURRENCY
CHARTER NO. 21467
<PAGE>
Exhibit 4
FIRST TRUST NATIONAL ASSOCIATION
I, Elizabeth Becker, the Secretary of First Trust National Association, a
national banking association organized under the laws of the United States,
hereby certify that the attached copy of the Bylaws of First Trust National
Association is a full, true and complete copy of the original. I further
certify that such Bylaws have not been revoked and remain in full force and
effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of First
Trust National Association to be affixed hereto this 27th day of July, 1993.
(Corporate Seal) /s/ Elizabeth Becker
----------------------------
Elizabeth Becker
Secretary
Sworn to before me this
27th day of July, 1993.
/s/ Jeanne M. Erickson
- ------------------------------
Notary Public
certified/bylaws [logo]
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1.1. ANNUAL MEETING. The annual meeting of the shareholders, for
the election of directors and the transaction of other business, shall be held
at a time and place as the Chairman or President may designate. Notice of such
meeting shall be given at least ten days prior to the date thereof, to each
shareholder of the Association. If, for any reason, an election of directors is
not made on the designated day, the election shall be held on some subsequent
day, as soon thereafter as practicable, with prior notice thereof.
Section 1.2. SPECIAL MEETINGS. Except as otherwise specially provided by
law, special meetings of the shareholders may be called for any purpose, at any
time by a majority of the board of directors, or by any shareholder or group of
shareholders owning at least ten percent of the outstanding stock. Every such
special meeting, unless otherwise provided by law, shall be called upon not less
than ten days prior notice stating the purpose of the meeting.
Section 1.3. NOMINATIONS FOR DIRECTORS. Nominations for election to the
board of directors may be made by the board of directors or by any shareholder.
Section 1.4. PROXIES. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing. Proxies shall be valid only
for one meeting and any adjournments of such meeting and shall be filed with the
records of the meeting.
Section 1.5. QUORUM. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any
meeting, unless otherwise provided by law or by the Articles of Association.
- 1 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE II
Section 2.1. BOARD OF DIRECTORS. The board of directors
(hereinafter referred to as the "board"), shall have power to manage and
administer the business and affairs of the Association. All authorized corporate
powers of the Association shall be vested in and may be exercised by the board.
Section 2.2 POWERS. In addition to the foregoing, the board of
directors shall have and may exercise all of the powers granted to or conferred
upon it by the Articles of Association, the Bylaws and by law.
Section 2.3. NUMBER. The board shall consist of a number of members
to be fixed and determined from time to time by resolution of the board or the
shareholders at any meeting thereof, in accordance with the Articles of
Association.
Section 2.4 ORGANIZATION MEETING. The newly elected board shall
meet for the purpose of organizing the new board and electing and appointing
such officers of the Association as may be appropriate. Such meeting shall be
held on the day of the election or as soon thereafter as practicable, and, in
any event, within thirty days thereafter. If, at the time fixed for such
meeting, there shall not be a quorum present, the directors present may adjourn
the meeting until a quorum is obtained.
Section 2.5 REGULAR MEETINGS. The regular meetings of the board
shall be held, without notice, as the Chairman or President may designate and
deem suitable.
Section 2.6 SPECIAL MEETINGS. Special meetings of the board may be
called by the Chairman or the President of the Association, or at the request of
two or more directors. Each member of the board shall be given notice stating
the time and place of each such meeting.
Section 2.7. QUORUM. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but fewer may
adjourn any meeting. Unless otherwise provided, once a quorum is established,
any act by a majority of those constituting the quorum shall be the act of the
board.
Section 2.8. VACANCIES. When any vacancy occurs among the directors,
the remaining members of the board may appoint a director to fill such vacancy
at any regular meeting of the board, or at a special meeting called for that
purpose.
- 2 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE III
Section 3.1. ADVISORY BOARD OF DIRECTORS. The board may appoint
persons, who need not be directors, to serve as advisory directors on an
advisory board of directors established with respect to the business affairs of
either this Association alone or the business affairs of a group of affiliated
organizations of which this Association is one. Advisory directors, shall have
such powers and duties as may be determined by the board, provided, that the
board's responsibility for the business and affairs of this Association shall in
no respect be delegated or diminished.
Section 3.2 AUDIT COMMITTEE. The board shall appoint an Audit
Committee which shall consist of at least two Directors which are not active
officers or employees of the Association. The Audit Committee shall direct and
review audits of the Association's fiduciary activities.
The members of the Audit Committee shall be appointed each year and
shall continue to act until their successors are named. The Audit Committee
shall have power to adopt its own rules and procedures and to do those things
which in the judgment of such Committee are necessary or helpful with respect to
the exercise of its functions or the satisfaction of its responsibilities.
Section 3.3 EXECUTIVE COMMITTEE. The board may appoint an
Executive Committee which shall consist of at least three directors and which
shall have, and may exercise, all the powers of the board between meetings of
the board or otherwise when the board is not meeting.
Section 3.4 OTHER COMMITTEES. The board may appoint, from time to
time, committees of one or more persons who need not be directors, for such
purposes and with such powers as the board may determine. In addition, either
the Chairman or the President may appoint, from time to time, committees of one
or more officers, employees, agents or other persons, for such purposes and with
such powers as either the Chairman or the President deems appropriate and
proper.
Whether appointed by the board, the Chairman, or the President, any
such Committee shall at all times be subject to the direction and control of the
board.
- 3 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
Section 3.5. MEETINGS, MINUTES AND RULES. An advisory board of
directors and/or committee shall meet as necessary in consideration of the
purpose of the advisory board of directors or committee, and shall maintain
minutes in sufficient detail to indicate actions taken or recommendations made;
unless required by the members, discussions, votes or other specific details
need not be reported. An advisory board of directors or a committee may, in
consideration of its purpose, adopt its own rules for the exercise of any of its
functions or authority.
ARTICLE IV
OFFICERS AND EMPLOYEES
Section 4.1 CHAIRMAN OF THE BOARD. The board may appoint one of
its members to be Chairman of the board to serve at the pleasure of the board.
The Chairman shall supervise the carrying out of the policies adopted or
approved by the board; shall have general executive powers, as well as the
specific powers conferred by these Bylaws; shall also have and may exercise such
powers and duties as from time to time may be conferred upon or assigned by the
board.
Section 4.2 PRESIDENT. The board may appoint one of its members to
be President of the Association. In the absence of the Chairman, the President
shall preside at any meeting of the board. The President shall have general
executive powers, and shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Office of President, or
imposed by these Bylaws. The President shall also have and may exercise such
powers and duties as from time to time may be conferred or assigned by the
Board.
Section 4.3 VICE PRESIDENT. The board may appoint one or more Vice
Presidents who shall have such powers and duties as may be assigned by the board
and to perform the duties of the President on those occasions when the President
is absent, including presiding at any meeting of the board in the absence of
both the Chairman and the President.
Section 4.4 SECRETARY. The board shall appoint a Secretary, or
other designated officer who shall be Secretary of the board and of the
Association, and shall keep accurate minutes of all meetings. The Secretary
shall attend to the giving of all notices required by these Bylaws to be given;
shall be custodian of the corporate seal, records, documents and papers of the
Association; shall provide for the keeping of proper records of all transactions
of the Association; shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Secretary, or imposed
by these Bylaws; and shall also perform such other duties as may be assigned
from time to time, by the Board.
- 4 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
Section 4.5 OTHER OFFICERS. The board may appoint, and may
authorize the Chairman or the President to appoint, any officer as from time to
time may appear to the board, the Chairman or the President to be required or
desirable to transact the business of the Association.
Such officers shall exercise such powers and perform such duties as
pertain to their several offices, or as may be conferred upon or assigned to
them by these Bylaws, the board, the Chairman or the President.
Section 4.6 TENURE OF OFFICE. The Chairman or the President and
all other officers shall hold office for the current year for which the board
was elected, unless they shall resign, become disqualified, or be removed.
Any vacancy occurring in the Office of Chairman or President shall
be filled promptly by the board.
Any officer elected by the board or appointed by the Chairman or the
President may be removed at any time, with or without cause, by the affirmative
vote of a majority of the board or, if such officer was appointed by the
Chairman or the President, by the Chairman or the President, respectively.
ARTICLE V
STOCK
Section 5.1. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to such person's shares, succeed to all rights of the prior
holder of such shares. Each certificate of stock shall recite on its face that
the stock represented thereby is transferable only upon the books of the
Association properly endorsed.
ARTICLE VI
CORPORATE SEAL
Section 6.1. The Chairman, the President, the Secretary, any
Assistant Secretary or other officer designed by the board, the Chairman, or the
President, shall have authority to affix the corporate seal to any document
requiring such seal, and to attest the same. Such seal shall be substantially in
the following form:
[SEAL]
- 5 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 EXECUTION OF INSTRUMENTS. All agreements, checks,
drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, guarantees, proxies and other instruments or
documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a
fiduciary capacity or otherwise, by any officer of the Association, or such
employee or agent as may be designated from time to time by the board by
resolution, or by the Chairman or the President by written instrument, which
resolution or instrument shall be certified as in effect by the Secretary or
an Assistant Secretary of the Association. The provisions of this section are
supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. RECORDS. The Articles of Association, the Bylaws and
the proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for the purpose. The minutes or each meeting shall be signed by the Secretary,
or other officer appointed to act as Secretary of the meeting.
Section 7.3. TRUST FILES. There shall be maintained in the
Association files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 7.4. TRUST INVESTMENTS. Funds held in a fiduciary capacity
shall be invested according to the instrument establishing the fiduciary
relationship and according to law. Where such instrument does not specify the
character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument
shall be invested in investments in which corporate fiduciaries may invest under
law.
Section 7.5 NOTICE. Whenever notice is required by the Articles of
Association, the Bylaws or law, such notice shall be by mail, postage prepaid,
telegram, in person, or by any other means by which such notice can reasonably
be expected to be received, using the address of the person to receive such
notice, or such other personal data, as may appear on the records of the
Association. Prior notice shall be proper if given not more than 30 days nor
less than 10 days prior to the event for which notice is given.
- 6 -
<PAGE>
FIRST TRUST NATIONAL ASSOCIATION
BYLAWS
ARTICLE VIII
INDEMNIFICATION
Section 8.1. The association shall indemnify to the full extent
permitted by, and in the manner permissible under, the Articles of Association
and the laws of the United States of America, as applicable and as amended from
time to time, any person made, or threatened to be made, a party to any action,
suit or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person is or was a director, advisory director,
officer or employee of the Association, or any predecessor of the Association,
or served any other enterprise as a director or officer at the request of the
Association or any predecessor of the Association.
Section 8.2 The board in its discretion may, on behalf of the
Association, indemnify any person, other than a director, advisory director,
officer or employee, made a party to any action, suit or proceeding by reason of
the fact that such person is or was an agent of the Association or any
predecessor of the Association serving in such capacity at the request of the
Association or any predecessor of the Association.
ARTICLE IX
BYLAWS: INTERPRETATION AND AMENDMENT
Section 9.1. These Bylaws shall be interpreted in accordance with
and subject to appropriate provisions of law, and may be amended, altered or
repealed, at any regular or special meeting of the board.
Section 9.2. A copy of the Bylaws, with all amendments, shall at all
times be kept in a convenient place at the main office of the Association, and
shall be open for inspection to all shareholders during Association hours.
--- --- ---
- 7 -
<PAGE>
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that reports of
examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: August 27, 1996
FIRST TRUST NATIONAL ASSOCIATION
/s/ James A. Ehrenberg
--------------------------------
James A. Ehrenberg
Senior Vice President
<PAGE>
Exhibit 7
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Expires March 31, 1999
Federal Financial Institutions Examination Council
- --------------------------------------------------------------------------------
/1/
[LOGO] Please refer to page 1,
Table of Contents, for
the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC OFFICES ONLY AND
TOTAL ASSETS OF LESS THAN $100 MILLION - FFIEC 034
(960630)
Report at the close of business June 30, 1996 -----------
(RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State member banks);
12 U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section 161
(National banks).
This report form is to be filed by banks with domestic offices only. 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 must file FFIEC 031.
- --------------------------------------------------------------------------------
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, MERITA D. SCHOLLMEIER, ASSISTANT SECRETARY
---------------------------------------------------
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/ Merita D. Schollmeier
- -----------------------------------------------
Signature of Officer Authorized to Sign Report
7/11/96
- -----------------------------------------------
Date of Signature
- -----------------------------------------------
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in
some cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it
has been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and is true and correct.
/s/
- -----------------------------------------------
Director (Trustee)
/s/
- -----------------------------------------------
Director (Trustee)
/s/
- -----------------------------------------------
Director (Trustee)
- --------------------------------------------------------------------------------
For Banks Submitting Hard Copy Report Forms:
STATE MEMBER BANKS: Return the original and one copy to the appropriate
Federal Reserve District Bank.
STATE NONMEMBER BANKS: Return the original only in the SPECIAL RETURN ADDRESS
ENVELOPE PROVIDED. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
NATIONAL BANKS: Return the original only in the SPECIAL RETURN ADDRESS
ENVELOPE PROVIDED. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
- --------------------------------------------------------------------------------
FDIC Certificate Number /9/0/3/1/9/
-----------
(RCRI 9050)
<PAGE>
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC OFFICES ONLY AND TOTAL ASSETS LESS THAN $100 MILLION
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
SIGNATURE PAGE COVER
REPORT OF INCOME
Schedule RI - Income Statement.................................... RI-1, 2, 3
Schedule RI-A - Changes in Equity Capital......................... RI-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-E - Explanations...................................... RI-5,6
REPORT OF CONDITION
Schedule RC - Balance Sheet....................................... RC-1,2
Schedule RC-B - Securities........................................ RC-3,4
Schedule RC-C - Loans and Lease Financing
Receivables:
Part I. Loans and Leases ....................................... RC-5,6
Part II. Loans to Small Businesses and Small Farms (included
in the forms for June 30, only).............................. RC-6a, 6b
Schedule RC-E - Deposit Liabilities .............................. RC-7,8
Schedule RC-F - Other Assets ..................................... RC-9
Schedule RC-G - Other Liabilities................................. RC-9
Schedule RC-K - Quarterly Averages................................ RC-10
Schedule RC-L - Off-Balance Sheet Items........................... RC-11,12
Schedule RC-M - Memoranda......................................... RC-13,14
Schedule RC-N - Past Due and Nonaccrual Loans, Leases, and
Other Assets.................................................... RC-15
Schedule RC-O - Other Data for Deposit Insurance
Assessments..................................................... RC-16,17
Schedule RC-R - Regulatory Capital ............................... RC-18,19
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income................. RC-20
Special Report (TO BE COMPLETED BY ALL BANKS)
Schedule RC-J - Repricing Opportunities (sent only to
and to be completed only by savings banks)
DISCLOSURE OF ESTIMATED BURDEN
The estimated average burden associated with this information collection is
32.2 hours per respondent and is estimated to vary from 15 to 230 hours per
response, depending on individual circumstances. burden estimates include the
time for reviewing instructions, gathering and maintaining data in the
required form, and completing the information collection, but exclude the
time for compiling and maintaining business records in the normal course of a
respondent's activities. Comments concerning the accuracy of this burden
estimate and suggestions for reducing this burden should be directed to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, D.C. 20503, and to one of the following:
SECRETARY
Board of Governors of the Federal Reserve System
Washington, D.C. 20851
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>
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1996 - JUNE 30, 1996
ALL REPORT OF INCOME SCHEDULES ARE TO BE REPORTED ON A CALENDAR YEAR-TO-DATE
BASIS IN THOUSANDS OF DOLLARS.
SCHEDULE RI - INCOME STATEMENT
<TABLE>
<CAPTION>
I180 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Interest Income:
a. Interest and fee income on loans (1,2): RIAD
(1) Total loans (to be completed only by those banks with less than ----
$25 million in total assets)____________________________________________ 4010. . 0 1.a.1
The following four items are to be completed only by those banks with
$25 million or more in total assets (1,2)
(2) Real estate loans________________________________________________________ 4246. . N/A 1.a.2
(3) Installment loans________________________________________________________ 4247. . N/A 1.a.3
(4) Credit cards and related plans___________________________________________ 4248. . N/A 1.a.4
(5) Commercial (time and demand) and all other loans_________________________ 4249. . N/A 1.a.5
b. Income from lease financing receivables______________________________________ 4065. . 0 1.b
c. Interest income on balances due from depository institutions (3)_____________ 4115. . 77 1.c
d. Interest and dividend income on securities:
(1) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities__________________________________________________ 4506. . 0 1.d.1a
(b) Tax-exempt securities_______________________________________________ 4507. . 11 1.d.1b
(2) U.S. Government and other debt securities_______________________________ 3660. . 0 1.d.2
(3) Equity securities (including investments in mutual funds)_______________ 3659. . 23 1.d.3
e. Interest income from trading assets__________________________________________ 4069. . 0 1.e
f. Interest income on federal funds sold (4) and securities purchased under
agreements to resell_________________________________________________________ 4020. . 24 1.f
g. Total interest income (sum of items 1.a through 1.f)_________________________ 4107. . 135 1.g
</TABLE>
_________________
(1) See instructions for loan classifications used in this schedule.
(2) The $25 million asset size test is generally based on the total assets
reported on the June 30, 1995 Report of Condition.
(3) Includes interest income on time certificates of deposit not held for
trading.
(4) Report interest income on "term federal funds sold" in Schedule R1, Item
1.a, "Interest and fee income on loans."
<PAGE>
4
Schedule RI - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
2. Interest expense:
a. Interest on deposits:
(1) Transaction accounts (NOW accounts, ATS accounts, and RIAD Year-to-date
telephone and preauthorized transfer accounts) ______________4508. . 0 . . . . . . . . 2.a.1
(2) Nontransaction accounts:
(a) Money market deposit accounts (MMDAs) ___________________4509. . 0 . . . . . . . . 2.a.2
(b) Other savings deposits __________________________________4511. . 0 . . . . . . . . 2.a.2b
(c) Time certificates of deposit of $ 100,000 or more _______4174. . 0 . . . . . . . . 2.a.2c
(d) All other time deposits (1) _____________________________4512. . 0 . . . . . . . . 2.a.2d
b. Expense of federal funds purchased (2) and securities sold
under agreements to repurchase __________________________________4180. . 219 . . . . . . . . 2.b
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and on other borrowed money ________________________4185. . 0 . . . . . . . . 2.c
d. Interest on mortgage indebtedness and obligations under
capitalized leases ______________________________________________4072. . 0 . . . . . . . . 2.d
e. Interest on subordinated notes and debentrues ___________________4200. . 0 . . . . . . . . 2.e
f. Total interest expense (sum of items 2.a through 2.e) ___________4073. . 219 . . . . . . . . 2.f
3. Net interest income (item 1.g minus 2.f) ___________________________4074. . . . . . . . . . . . ( 84) 3.
4. Provisions
a. Provision for loan and lease losses _____________________________4230. . . . . . . . . . . . 0 4.a
b. Provision for allocated transfer risk ___________________________4243. . . . . . . . . . . . 0 4.b
5. Noninterest income:
a. Service charges on deposit accounts _____________________________4080. . 0 . . . . . . . . 5.a
b. Other noninterest income:
(1) Other fee income ____________________________________________5407. . 51,150 . . . . . . . . 5.b.1
(2) All other noninterest income * ______________________________5408. . 14,960 . . . . . . . . 5.b.2
c. Total noninterest income (sum of items 5.a and 5.b) _____________4079. . . . . . . . . . . . 66,110 5.c
6. a. Realized gains (losses) on held-to-maturity securities __________3521. . . . . . . . . . . . 0 6.a
b. Realized gains (losses) on available-for-sale securities ________3196. . . . . . . . . . . . 0 6.b
7. Noninterest expense:
a. Salaries and employee benefits __________________________________4135. . 24,074 . . . . . . . . 7.a
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage
interest) _______________________________________________________4217. . 3,830 . . . . . . . . 7.b
c. Other noninterest expense * _____________________________________4092. . 16,555 . . . . . . . . 7.c
d. Total noninterest expense (sum of items 7.a through 7.c) ________4093. . . . . . . . . . . . 44,459 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.c,
6.a, 6.b, and 7.d) _________________________________________________4301. . . . . . . . . . . . 21,567 8.
9. Applicable income taxes (on item 8)_________________________________4302. . . . . . . . . . . . 8,024 9.
10. Income (loss) before extraordinary items and other ajustments
(item 8 minus 9) ___________________________________________________4300. . . . . . . . . . . . 13,543 10.
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) _____________________________4320. . . . . . . . . . . . 0 11.c
12. Net income (loss) (sum of items 10 and 11.c)________________________4340. . . . . . . . . . . . 13,543 12.
</TABLE>
- ---------------
(1) Includes interest expense on open-account time deposits of $ 100,000 or
more.
(2) Report the expense of "term federal funds purchased" in Schedule RI,
item 2.c, "Interest on demand notes issued to the U.S. Treasure, trading
liabilities and other borrowed money."
* Describe on Schedule RI-E - Explanations.
<PAGE>
5
Schedule RI - Continued
<TABLE>
<CAPTION>
I181 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
MEMORANDA RIAD
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired ---- Year-to-date
after August 7, 1986, that is not deductible for federal income tax purposes ____________4513. . 0 M.1
2. Income from the sale and servicing of mutual funds and annuities (included in
Schedule RI, item 8) ____________________________________________________________________8431. . 0 M.2
3. Estimated income on tax-exempt loans and leases to states and political subdivisions
in the U.S. (reportable in Schedule RC-C, part I, items 7 and 9) included in
Schedule RI, items 1.a and 1.b, above (excludes income on tax-exempt securities) ________4313. . 0 M.3
4. Number of full-time equivalent employees on payroll at end of current period (round to NUMBER
nearest whole number) ___________________________________________________________________4150. . 1,097 M.4
5. Cash dividends declared during the calendar year to date (to be reported only with
March, June, and September Reports of Income) ___________________________________________4475. . 4,000 M.5
6. To be completed by banks with $25 million or more in total assets and with
loans to finance agricultural production and other loans to farmers (Schedule RC-C,
part I, item 3) exceeding five percent of total loans. (2)
Interest and fee income on agricultural loans (1) (included in item 1.a above) __________4251. . 0 M.6
7. If the reporting bank has restated its balance sheet as a result of applying push down MM DD YY
accounting this calendar year, report the date of the bank's acquisition ________________9106. . N/A M.7
</TABLE>
- -----------------
(1) See instructions for loan classifications used in this schedule.
(2) The $25 million asset size test and the five percent of total loans test are
generally base on the total assets reported on the June 30, 1995 Report of
Condition.
Schedule RI-A - Changes in Equity Capital
Schedule RI-A is to be reported with the December Report of Income.
Indicate decreases and losses in parentheses.
<TABLE>
<CAPTION>
I183 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Total equity capital originally reported in the December 31, 1995, Reports of RAID
----
Condition and Income _____________________________________________________________3215. . N/A 1.
2. Equity capital adjustments from amended Report of Income, net * __________________3216. . N/A 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) _____________3217. . N/A 3.
4. Net income (loss) (must equal Schedule RI, item 12) ______________________________4340. . N/A 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net _______________4346. . N/A 5.
6. Changes incident to business combinations, net ___________________________________4356. . N/A 6.
7. LESS: Cash dividends declared on preferred stock _________________________________4470. . N/A 7.
8. LESS: Cash dividends declared on common stock ____________________________________4460. . N/A 8.
9. Cumulative effect of changes in accounting principles from prior years * (see
instructions for this schedule) __________________________________________________4411. . N/A 9.
10. Corrections of material accounting errors from prior years *(see instructions for
this schedule) ___________________________________________________________________4412. . N/A 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities__8433. . N/A 11.
12. Other transactions with parent holding company * (not included in item 5, 7, or
8 above) _________________________________________________________________________4415. . N/A 12.
13. Total equity capital end of current period (sum of items through 12) (must equal
Schedule RC, item 28.a) __________________________________________________________3210. . N/A 13.
</TABLE>
- ---------------------
* Describe on Schedule RI-E -Explanations.
<PAGE>
6
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 (1)
<TABLE>
<CAPTION>
I186 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
-----------------------Calendar year-to-date------------------------
Column A Column B
Charge-offs Recoveries
----------------------- ----------------------
<S> <C> <C>
RIAD RIAD
---- ----
1. Real estate loans ____________________________________________4256. . 0 4257. . 0 1.
2. Installment loans ____________________________________________4258. . 0 4259. . 0 2.
3. Credit cards and related plans _______________________________4262. . 0 4263. . 0 3.
4. Commercial (time and demand) and all other loans______________4264. . 0 4265. . 0 4.
5. Lease financing receivables __________________________________4266. . 0 4267. . 0 5.
6. Total (sum of items 1 through 5) _____________________________4635. . 0 4605. . 0 6.
<CAPTION>
Memoranda
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. To be completed by banks with loans to
finance agricultural production and other loans to
farmers (Schedule RC-C, part I, item 3) exceeding five
percent of total loans. RIAD RIAD
Agricultural loans included in part I,, items 1 ---- ----
through 4, above ____________________________________________4268. . 0 4269. . 0 M.1
2. Not applicable.
3. Not applicable.
4. Loans to finance commercial real estate, construction
and land development activities (not secured by real RIAD RIAD
estate) included in Schedule RI-B, part I, ---- ----
items 2 through 4, above ____________________________________5443. . 0 5444. . 0 M.4
5. Real estate loans (sum of Memorandum
items 5.a through 5.e must equal Schedule RIAD RIAD
Ri-B, part I, item 1, above): ---- ----
a. Construction and land development _______________________5445. . 0 5446. . 0 M.5.a
b. Secured by farmland _____________________________________5447. . 0 5448. . 0 M.5.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4
family residential properties and extended
under lines of credit ______________________________5449. . 0 5450. . 0 M.5.c1
(2) All other loans secured by 1-4 family
residential properties _____________________________5451. . 0 5452. . 0 M.5.c2
d. Secured by multifamily (5 or more) residential
properties ______________________________________________5453. . 0 5454. . 0 M.5.d
e. Secured by nonfarm nonresidential properties ____________5455. . 0 5456. . 0 M.5.e
</TABLE>
- --------------
(1) See instructions for loan classifications used in this schedule.
<PAGE>
7
Schedule RI - B - Continued
Part II. Changes in Allowance for Loan and Lease Losses
Part II is to be reported with the December Report of Income.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RIAD
----
1. Balance originally reported in the December 31, 1995, Reports of Condition and Income___3124. . 0 1.
2. Recoveries (must equal part I, item 6, column B above)__________________________________4605. . N/A 2.
3. LESS: Charge-offs (must equal part I, item 6, column A above)__________________________4635. . N/A 3.
4. Provision for loan and lease losses (must equal Schedule RI, item 4.a)__________________4230. . 0 4.
5. Adjustments * (see instructions for this schedule)______________________________________4815. . 0 5.
6. Balance end of current period (sum of items 1 through 5) (must equal Schedule RC,
item 4.b)_______________________________________________________________________________3123. . 0 6.
</TABLE>
__________
* Describe on Schedule RI-E - Explanations.
Schedule RI-C - Applicable Income Taxes by Taxing Authority
<TABLE>
<CAPTION>
I189 < -
Schedule RI-C is to be reported with the December Report of Income. Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RIAD
----
1. Federal_________________________________________________________________________________4780. . N/A 1.
2. State and local_________________________________________________________________________4790. . N/A 2.
3. Total (sum of items 1 and 2) (must equal sum of Schedule RI, items 9 and 11.b)__________4770. . N/A 3.
RIAD
----
4. Deferred portion of item 3___________________________4772. . N/A . . . . . . . . . . 4.
</TABLE>
Schedule RI-E - Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in 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>
I195 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. All other noninterest income (from Schedule RI, item 5.b.(2))
Report amounts that exceed 10% of Schedule RI, item 5.b.(2): RIAD Year-to-date
----
a. Net gains on other real estate owned________________________________________________5415. . N/A 1.a
b. Net gains on sales of loans_________________________________________________________5416. . N/A 1.b
c. Net gains on sales of premises and fixed assets_____________________________________5417. . N/A 1.c
Itemize and describe the three largest other amounts that exceed 10% of
Schedule RI, item 5.b.(2):
TEXT RIAD
---- ----
d. 4461: Expense Reimbursement fr Affiliates__________________________________________4461. . 13,602 1.d
e. 4462: _____________________________________________________________________________4462. . N/A 1.e
f. 4463: _____________________________________________________________________________4463. . N/A 1.f
2. Other noninterest expense (from Schedule RI, item 7.c):
a. Amortization expense of intangible assets___________________________________________4531. . 255 2.a
Report amounts that exceed 10% of Schedule RI, item 7.c:
b. Net losses on other real estate owned_______________________________________________5418. . N/A 2.b
c. Net losses on sales of loans________________________________________________________5419. . N/A 2.c
d. Net losses on sales of premises and fixed assets____________________________________5420. . N/A 2.d
Itemize and describe the three largest other amounts that exceed 10% of
Schedule RI, item 7.c:
TEXT RIAD
---- ----
e. 4464: Data Processing Expense - Non Affiliate______________________________________4464. . 2,286 2.e
f. 4467: Consulting Services Expense__________________________________________________4467. . 3,000 2.f
g. 4468: _____________________________________________________________________________4468. . N/A 2.g
</TABLE>
<PAGE>
8
Schedule RI-E - continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
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):
TEXT RIAD RIAD Year-to-date
---- ---- ----
a. (1) 4469: ________________________________________________ . . . . . . . . . 4469. . 0 3.a.1
(2) Applicable income tax effect__________________________4486 . . 0 . . . . . . . 3.a.2
b. (1) 4487: ________________________________________________ . . . . . . . . . 4487. . 0 3.b.1
(2) Applicable income tax effect__________________________4488 . . 0 . . . . . . . 3.b.2
c. (1) 4489: ________________________________________________ . . . . . . . . . 4489. . 0 3.c.1
(2) Applicable income tax effect__________________________4491 . . 0 . . . . . . . 3.c.2
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A,
item 2) (itemize and describe all adjustments):
TEXT
----
a. 4492: ______________________________________________________________________________________4492. . N/A 4.a
b. 4493: ______________________________________________________________________________________4493. . N/A 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):
TEXT
----
a. 4494: ______________________________________________________________________________________4494. . N/A 5.a
b. 4495: ______________________________________________________________________________________4495. . N/A 5.b
6. Corrections of material accounting errors from prior years (from Schedule
RI-A, item 10) (itemize and describe all corrections):
TEXT
----
a. 4496: ______________________________________________________________________________________4496. . N/A 6.a
b. 4497: ______________________________________________________________________________________4497. . N/A 6.b
7. Other transactions with parent holding company (from Schedule RI-A, item 12) (itemize
and describe all such transactions):
TEXT
----
a. 4498: ______________________________________________________________________________________4998. . N/A 7.a
b. 4499: ______________________________________________________________________________________4499. . N/A 7.b
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, part II,
item 5) (itemize and describe all adjustments):
TEXT
----
a. 4521: ______________________________________________________________________________________4521. . N/A 8.a
b. 4522: ______________________________________________________________________________________4522. . N/A 8.b
I198 I199 < -
</TABLE>
Other explanations (the space below is provided for bank to briefly describe, at
its option, any other significant items affecting the Report of Income):
No comment: X (RIAD 4769)
Other explanations (please type or print clearly):
(TEXT 4769)
<PAGE>
9
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
<TABLE>
<CAPTION>
C100 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ASSETS
1. Cash and balances due from depository institutions: RCON
----
a. Noninterest-bearing balances and currency and coin (1,2)__________________________0081. . 49,771 1.a
b. Interest-bearing balances (3)_____________________________________________________0071. . 10,370 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)________________________1754. . 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)______________________1773. . 1,061 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold (4)____________________________________________________________0276. . 0 3.a
b. Securities purchased under agreements to resell (5)_______________________________0277. . 882 3.b
4. Loans and lease financing receivables: RCON
a. Loans and leases, net of unearned income ----
(from Schedule RC-C)_______________________________2122 . . 0 . . . . . . . . . . . 4.a
b. LESS: Allowance for loan and lease losses_________3123 . . 0 . . . . . . . . . . . 4.b
c. LESS: Allocated transfer risk reserve_____________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. . 0 4.d
5. Trading assets________________________________________________________________________3545. . 0 5.
6. Premises and fixed assets (including capitalized leases)______________________________2145. . 6,076 6.
7. Other real estate owned (from Schedule RC-M) 2150. . 0 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. . 0 9.
10. Intangible assets (from Schedule RC-M)________________________________________________2143. . 1,020 10.
11. Other assets (from Schedule RC-F)_____________________________________________________2160. . 22,322 11.
12. a. Total assets (sum of items 1 through 11)__________________________________________2170. . 91,502 12.a
b. Losses deferred pursuant to 12 U.S.C. 1823(j)_____________________________________0306. . 0 12.b
c. Total assets and losses deferred pursuant to 12 U.S.C. 1823(j) (sum of items
12.a and 12.b_____________________________________________________________________0307. . 91,502 12.c
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b.
(3) Includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a, "Loans and
leases, net of unearned income", and in Schedule RC-C, part I.
(5) Report securities purchased under agreements to resell that involve the
receipt of immediately available funds and mature in one business day or
roll over under a continuing contract in Schedule RC, item 3.a, "Federal
funds sold."
<PAGE>
10
Schedule RC - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
LIABILITIES
13. Deposits RCON
a. In domestic offices (sum of totals of ----
columns A and C from Schedule RC-E) ________________________________________________________2200. . 0 13.a
RCON
----
(1) Noninterest-bearing (1) ________________________________________6631. . 0 . . . . . . . . . 13.a.1
(2) Interest-bearing _________________________________________________6636. . 0 . . . . . . . . 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs _______________________________
(1) Noninterest-bearing _____________________________________________________________________
(2) Interest-bearing ________________________________________________________________________
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased (2) _______________________________________________________________0278. . 0 14.a
b. Securities sold under agreements to repurchase (3)_________________________________________0279. . 0 14.b
15. a. Demand notes issued to the U.S. Treasury ___________________________________________________2840. . 0 15.a
b. Trading liabilities ________________________________________________________________________3548. . 0 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less _____________________________________________2332. . 0 16.a
b. With a remaining maturity of more than one year ___________________________________________2333. . 0 16.b
17. Mortgage indebtedness and obligations under capitalized leases ________________________________2910. . 0 17.
18. Bank's liability on acceptances executed and outstanding ______________________________________2920. . 0 18.
19. Subordinated notes and debentures _____________________________________________________________3200. . 0 19.
20. Other liabilities (from Schedule RC-G)_________________________________________________________2930. . 37,173 20.
21. Total liabilities (sum of items 13 through 20) ________________________________________________2948. . 37,173 21.
22. Limited-life preferred stock and related surplus ______________________________________________3282. . 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus _________________________________________________3838. . 0 23.
24. Common stock __________________________________________________________________________________3230. . 1,000 24.
25. Surplus (exclude all surplus related to preferred stock) ______________________________________3839. . 24,000 25.
26. a. Undivided profits and capital reserves _____________________________________________________3632. . 29,322 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities ____________________8434. . 7 26.b
27. Cumulative foreign currency translation adjustments ___________________________________________
28. a. Total equity capital (sum of items 23 through 27) __________________________________________3210. . 54,329 28.a
b. Losses deferred pursuant to 12 U.S.C. 1823 (j) ____________________________________________0306. . 0 28.b
c. Total equity capital and losses deferred pursuant to 12 U.S.C. 1823(j)
(sum of items 28.a and 28.b) ______________________________________________________________3559. . 54,329 28.c
29. Total liabilities, limited-life preferred stock, equity capital, and losses
deferred pursuant to 12 U.S.C. 1823(j) (sum of items 21, 22, and 28.c) ________________________2257. . 91,502 29.
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement below that best describes
the most comprehensive level of auditing work performed for the bank by the independent
external auditors as of any date during 1995 _________________________________________________6724. . N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Director's 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.
2) Report "term federal funds purchased" in Schedule RC, item 16, "other
borrowed money."
3) Report securities sold under agreements to repurchase that involve the
receipt of immediately available funds and mature in one business day or
roll over under a continuing contract in Schedule RC, item 14.a, "Federal
funds purchased."
<PAGE>
11
Schedule RC-B - Securities
Exclude assets held for trading
<TABLE>
<CAPTION>
C110 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
(Column A) (Column B) (Column C) (Column D)
Amortized Costs Fair Value Amortized Cost Fair Value (1)
------------------- -------------- -------------- --------------------
<S> <C> <C> <C> <C>
RCON RCON RCON RCON
---- ---- ---- ----
1. U.S. Treasury
securities ______________________________________0211.. 0 0213.. 0 1286.. 0 1287.. 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 1291.. 0 1293.. 0 2.a
b. Issued by U.S. Government -
sponsored agencies (3)________________________1294.. 0 1295.. 0 1297.. 0 1298.. 0 2.b
3. Securities issued by states and
political subdivisions in the U.S.:
a. General obligations __________________________1676.. 0 1677.. 0 1678.. 300 1679.. 311 3.a
b. Revenue obligations __________________________1681.. 0 1686.. 0 1690.. 0 1691.. 0 3.b
c. Industrial development and similar
obligations __________________________________1694.. 0 1695.. 0 1696.. 0 1697.. 0 3.c
4. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Guaranteed by GMMA ______________________1698.. 0 1699.. 0 1701.. 0 1702.. 0 4a1
(2) Issued by FMMA and FHLMC _________________1703.. 0 1705.. 0 1706.. 0 1707.. 0 4a2
(3) Other pass_through securities ____________1709.. 0 1710.. 0 1711.. 0 1713.. 0 4a3
b. Other mortgage-backed securities
(Include CMOs, REMICs, and
Stripped MBS):
(1) Issued or guaranteed by FMMA,
FHLMC, or GMMA __________________________1714.. 0 1715.. 0 1716.. 0 1717.. 0 4b1
(2) Collateralized by MBS issued
or guaranteed by FMMA,
FHLMC, or GMMA __________________________1718.. 0 1719.. 0 1731.. 0 1732.. 0 4b2
(3) All other mortgage-backed
securities ______________________________1733.. 0 1734.. 0 1735.. 0 1736.. 0 4b3
5. Other debt securities ____________________________1774.. 0 1775.. 0 1776.. 0 1777.. 0 5.
6. Equity securities:
a. Investments in mutual funds __________________ .. .. 1747.. 0 1748.. 0 6.a
b. Other equity securities with
readily determinable fair values_____________ .. .. 1749.. 0 1751.. 0 6.b
c. All other equity securities(1)
(includes Federal Reserve stock)______________ .. .. 1752.. 750 1753.. 750 6.c
7. Total (sum of items 1 through 6)
(total of column A must equal
Schedule RC item 2.a)(total of column
D must equal Schedule RC, item 2.b)_______________1754.. 0 1771.. 0 1772..1,050 1773.. 1,061 7.
</TABLE>
- ---------
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c, column D.
(2) Includes Small Business Administration "Guaranteed Loan Pool Certificates,"
U.S. Maritime Administration obligations, and Export-Import Bank
participation certificates.
(3) Includes obligations (other than mortgage-backed securities) issued by the
Farm Credit System, the Federal Home Loan Bank System, the Federal Home
Loan Mortgage Corporation, the Federal National Mortgage Association, the
Financing Corporation, Resolution Funding Corporation, the Student Loan
Marketing Association, and the Tennessee Valley Authority.
<PAGE>
Schedule RC-B - Continued
<TABLE>
<CAPTION>
Memoranda
C112 < -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCON
----
1. Pledged securities(1) _______________________________________________________________________________0416.. 0 M.1
2. Maturity and repricing data for debt securities (1,2,3) excluding those in
nonaccrual status):
a. Fixed rate debt securities with a remaining maturity of:
(1) Three months or less ________________________________________________________________________0343.. 0 M.2.a1
(2) Over three months through 12 months _________________________________________________________0344.. 204 M.2.a2
(3) Over one year through five years ____________________________________________________________0345.. 107 M.2.a3
(4) Over five years _____________________________________________________________________________0346.. 0 M.2.a4
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1)
through 2.a.(4)) ____________________________________________________________________________0347.. 311 M.2.a5
b. Floating rate debt securities with a repricing frequency of:
(1) Quarterly or more frequently _______________________________________________________________4544.. 0 M.2.b1
(2) Annually or more frequently, but less frequently than quarterly _____________________________4545.. 0 M.2.b2
(3) Every five years or more frequently, but less frequently than annually ______________________4551.. 0 M.2.b3
(4) Less frequently than every five years _______________________________________________________4552.. 0 M.2.b4
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1)
through 2.b.(4))_____________________________________________________________________________4553.. 0 M.2.b5
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, columns A and
D, minus nonaccrual debt securities included in Schedule RC-W, item 6, column C)_________________0393.. 311 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 (1,3)
(included in Memorandum items 2.b.(1) through 2.b.(4) above) _______________________________________5519.. 0 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 (report the amortized cost
at date of sale or transfer) ____________________________________________________________________1778.. 0 M.7
8. High-risk mortgage securities (included in the held-to-maturity and available-for-sale
accounts in Schedule RC-B, item 4.b):
a. Amortized cost __________________________________________________________________________________8780.. 0 M.8.a
b. Fair value ______________________________________________________________________________________8781.. 0 M.8.b
9. Structured notes (included in the held-to maturity and available-for-sale
accounts in Schedule RC-B, items 2, 3, and 5):
a. Amortized cost __________________________________________________________________________________8782.. 0 M.9.a
b. Fair value _____________________________________________________________________________________8783.. 0 M.9.b
</TABLE>
- ------
1) Includes held-to-maturity securities at amortized cost and available-for-
sale securities at fair value.
2) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
3) Memorandum items 2 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
<PAGE>
13
Schedule RC-C - Loans and Lease Financing Receivables
Part I. Loans and Leases
Do not deduct the allowance for loan and lease losses from amounts reported
in this schedule. Report total loans and leases, net of unearned income.
Exclude assets held for trading.
<TABLE>
<CAPTION>
C115 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RCON
1. Loans secured by real estate: ----
a. Construction and land development_____________________________________________________1415. . 0 1.a
b. Secured by farmland (including farm residential and other improvements)_______________1420. . 0 1.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential properties and
extended under lines of credit____________________________________________________1797. . 0 1.c.1
(2) All other loans secured by 1-4 family residential properties:
(a) Secured by first liens________________________________________________________5367. . 0 1.c.2a
(b) Secured by junior liens_______________________________________________________5368. . 0 1.c.2b
d. Secured by multifamily (5 or more) residential properties_____________________________1460. . 0 1.d
e. Secured by nonfarm nonresidential properties__________________________________________1480. . 0 1.e
2. Loans to depository institutions_________________________________________________________1489. . 0 2.
3. Loans to finance agricultural production and other loans to farmers______________________1590. . 0 3.
4. Commercial and industrial loans__________________________________________________________1766. . 0 4.
5. Acceptances of other banks_______________________________________________________________1755. . 0 5.
6. Loans to individuals for household, family, and other personal expenditures
(i.e., consumer loans) (includes purchased paper):
a. Credit cards and related plans (includes check credit and other revolving credit
plans)________________________________________________________________________________2008. . 0 6.a
b. Other (includes single payment, installment, and all student loans)___________________2011. . 0 6.b
7. Obligations (other than securities and leases) of states and political subdivisions
in the U.S. (includes nonrated industrial development obligations)_______________________2107. . 0 7.
8. All other loans (exclude consumer loans)_________________________________________________2080. . 0 8.
9. Lease financing receivables (net of unearned income)_____________________________________2165. . 0 9.
10. LESS: Any unearned income on loans reflected in items 1-8 above__________________________2123. . 0 10.
11. Total loans and leases, net of unearned income (sum of items 1 through 9 minus item
10) (must equal Schedule RC, item 4.a)___________________________________________________2122. . 0 11.
</TABLE>
<PAGE>
14
Schedule RC-C - Continued
Part I. Continued
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Loans (1) and leases restructured and in compliance with modified terms (included in
Schedule RC-C, part I, above, and not reported as past due or nonaccrual in Schedule RCON
RC-W, Memorandum item 1):________________________________________________________________----
a. Real estate loans_____________________________________________________________________1617. . 0 M.1.a
b. All other loans and all lease financing receivables (exclude loans to individuals
for household, family, and other personal expenditures)_______________________________8691. . 0 M.1.b
2. Maturity and repricing data for loans and leases (2) (excluding those in nonaccrual
status):
a. Fixed rate loans and leases with a remaining maturity of:
(1) Three months or less______________________________________________________________0348. . 0 M.2.a1
(2) Over three months through 12 months_______________________________________________0349. . 0 M.2.a2
(3) Over one year through five years__________________________________________________0356. . 0 M.2.a3
(4) Over five years___________________________________________________________________0357. . 0 M.2.a4
(5) Total fixed rate loans and leases (sum of Memorandum items 2.a.(1) through
2.a.(4))__________________________________________________________________________0358. . 0 M.2.a5
b. Floating rate loans with a repricing frequency of:
(1) Quarterly or more frequently______________________________________________________4554. . 0 M.2.b1
(2) Annually or more frequently, but less frequently than quarterly___________________4555. . 0 M.2.b2
(3) Every five years or more frequently, but less frequently than annually____________4561. . 0 M.2.b3
(4) Less frequently than every five years_____________________________________________4564. . 0 M.2.b4
(5) Total floating rate loans (sum of Memorandum items 2.b.(1) through 2.b.(4))_______4567. . 0 M.2.b5
c. Total loans and leases (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal
the sum of total loans and leases, net, from Schedule RC-C, part I, Item 11,
plus unearned income from Schedule RC-C, Part I, item 10, minus total nonaccrual
loans and leases from Schedule RC-N, sum of items 1 through 5, column C)______________1479. . 0 M.2.c
d. Floating rate loans with a remaining maturity of one year or less (included in
memorandum items 2.b.(1) through 2.b.(4) above)_______________________________________A246. . 0 M.2.d
3. Reserved
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 8, page
RC-5 (3)_________________________________________________________________________________2746. . 0 M.4
5. Loans and leases held for sale (included in Schedule RC-C, part I, above)________________5369. . 0 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), page RC-5)_______________5370. . 0 M.6
</TABLE>
- ----------
(1) See instructions for loan classifications used in Memorandum Item 1.
(2) Memorandum item 2 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
(3) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, items 1.a through 1.e.
<PAGE>
14a
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>
<CAPTION>
C118 < -
<S> <C>
Loans to Small Businesses
1. Indicate in the appropriate box at the right whether all or substantially all of the
dollar volume of your bank's "Loans secured by nonfarm nonresidential properties" reported
in Schedule RC-C, part I, item 1.e, and all or substantially all of the dollar volume of
your bank's "Commercial and industrial loans" reported in Schedule RC-C, part I, item 4,
have original amounts of $100,000 or less (if your bank has no loans outstanding in both RCON YES NO
of these two loan categories, place an "X" in the box marked "NO" and go to item 5; ---- --- --
otherwise, see instructions for further information.)_______________________________________6999. . X 1.
If YES, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5.
If NO and your bank has loans outstanding in either loan category,
skip items 2.a and 2.b, complete items 3 and 4 below, and go to item 5.
2. Report the total number of loans currently outstanding
for each of the following Schedule RC-C, part I, loan Number of Loans
categories: ----------------------------
a. "Loans secured by nonfarm nonresidential properties" RCON
reported in Schedule RC-C, part I, ----
item 1.e______________________________________________5562. . N/A 2.a
b. "Commercial and industrial loans" reported in Schedule
RC-C, part I, item 4__________________________________5563. . N/A 2.b
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------
(Column A) (Column B)
Number of Loans Amount Currently Outstanding
--------------------------- ---------------------------------
<S> <C> <C>
3. Number and amount currently outstanding of "Loans secured
by nonfarm nonresidential properties" reported in Schedule
RC-C, part I, item 1.e (sum of items 3.a though 3.c must RCON RCON
be less than or equal to Schedule RC-C, part I, item 1.e): ---- ----
a. With original amounts of $100,000
or less____________________________________________________5564. . N/A 5565. . N/A 3.a
b. With original amounts of more than $100,000 through
$250,000___________________________________________________5566. . N/A 5567. . N/A 3.b
c. With original amounts of more than $250,000 through
$1,000,000_________________________________________________5568. . N/A 5569. . N/A 3.c
4. Number and amount currently outstanding of "Commercial and
industrial loans" reported in Schedule RC-C, part I, item 4
(sum of items 4.a though 4.c must be less than or equal to RCON RCON
Schedule RC-C, part I, item 4): ---- ----
a. With original amounts of $100,000 or less__________________5570. . N/A 5571. . N/A 4.a
b. With original amounts of more than $100,000 through
$250,000___________________________________________________5572. . N/A 5573. . N/A 4.b
c. With original amounts of more than $250,000 through
$1,000,000_________________________________________________5574. . N/A 5575. . N/A 4.c
</TABLE>
<PAGE>
14b
Schedule RC-C - Continued
Part II. Continued
Agricultural Loans to Small Farms
<TABLE>
<S> <C>
5. Indicate in the appropriate box at the right whether all or substantially all of the
dollar volume of your bank's "Loans secured by farmland (including farm residential and
other improvements)" reported in Schedule RC-C, part I, item 1.b, and all or
substantially all of the dollar volume of your bank's "Loans to finance agricultural
production and other loans to farmers" reported in Schedule RC-C, part 1, item 3, have
original amounts of $100,000 or less (if your bank has no loans outstanding in both of RCON YES NO
these two loan categories, place an "X" in the box marked "NO" and do not complete items 7 ---- --- --
and 8; otherwise, see instructions for further information.)________________________________6860. . X 5.
If YES, complete Items 6.a and 6.b below and do not complete items 7 and 8.
if NO and your bank has loans outstanding in either loan category,
skip items 6.a and 6.b and complete items 7 and 8 below.
6. Report the total number of loans currently outstanding
for each of the following Schedule RC-C, part I, loan Number of Loans
categories: ----------------------
a. "Loans secured by farmland (including farm residential RCON
and other improvements)" reported in Schedule RC-C, ----
part I, item 1.b________________________________________5576. . N/A 6.a
b. "Loans to finance agricultural production and other
loans to farmers" reported in Schedule RC-C, part I,
item 3__________________________________________________5577. . N/A 6.b
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------
(Column A) (Column B)
Number of Loans Amount Currently Outstanding
----------------------- ----------------------------
<S> <C> <C>
Number and amount currently outstanding of "Loans secured
by farmland (including farm residential and other
improvements)" reported in Schedule RC-C, part I, item 1.b
(sum of items 7.a through 7.c must be less than or equal
to Schedule RC-C, part I, item 1.b): RCON RCON
a. With original amounts of $ 100,000 ---- ----
or less____________________________________________________5578. . N/A 5579. . N/A 7.a
b. With original amounts of more than $ 100,000 through
$ 250,000__________________________________________________5580. . N/A 5581. . N/A 7.b
c. With original amounts of more than $ 250,000 through
$ 500,000__________________________________________________5582. . N/A 5583. . N/A 7.c
Number and amount currently outstanding of "Loans to
finance agricultural production and other loans to farmers"
reported in Schedule RC-C, part I, item 3 (sum of items
8.a through 8.c must be less than or equal to Schedule
RC-C, part I, item 3): RCON RCON
a. With original amounts of $ 100,000 ---- ----
or less____________________________________________________5584. . N/A 5585. . N/A 8.a
b. With original amounts of more than $ 100,000 through
$ 250,000__________________________________________________5586. . N/A 5587. . N/A 8.b
c. With original amounts of more than $ 250,000 through
$ 500,000__________________________________________________5588. . N/A 5589. . N/A 8.c
</TABLE>
<PAGE>
15
<TABLE>
<CAPTION>
Schedule RC-E - Deposit Liabilities C125 < -
Dollar Amount in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
---------------Transaction Accounts-------------- --Nontransaction Accounts----
(Column A) (Column B) (Column C)
Total transaction Memo: Total demand
accounts (including total deposits (included in Total Nontransaction
demand deposits) column A) accounts (including MMDAs)
- ------------------------------------------ ------------------------- ---------------------- ----------------------------
<S> <C> <C> <C>
RCON RCON RCON
Deposits of: ---- ---- ----
1. Individuals, partnerships and corporations__2201. . 0 2240. . 0 2346. . 0 1.
2. U.S. Government_____________________________2202. . 0 2280. . 0 2520. . 0 2.
3. States and political subdivisions in
the U.S.____________________________________2203. . 0 2290. . 0 2530. . 0 3.
4. Commercial banks in the U.S. (including U.S.
branches and agencies of foreign banks)_____2206. . 0 2310. . 0 2550. . 0 4.
5. Other depository institutions in the U.S.___2207. . 0 2312. . 0 2349. . 0 5.
6. Certified and official checks_______________2330. . 0 2330. . 0 . . . . . . . . . . . . 6.
7. Banks in foreign countries, foreign
governments, and foreign official
institutions________________________________2184. . 0 2185. . 0 2186. . 0 7.
8. Total (sum of items 1 through 7) (sum of
columns A and C must equal Schedule RC,
item 13.a)__________________________________2215. . 0 2210. . 0 2385. . 0 8.
</TABLE>
<TABLE>
<CAPTION>
Dollar Amount in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Memoranda
RCON
----
1. Selected components of total deposits (i.e., sum of item 8, columns A and C):
a. Total individual Retirement Accounts (IRAs) and Keogh Plan Accounts_________________6835. . 0 M.1.a
b. Total brokered deposits_____________________________________________________________2365. . 0 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.c1
(2) Issued either in denominations of $ 100,000 or in denominations greater than
$ 100,000 and participated out by the broker in shares of $ 100,000 or less_____2344. . 0 M.1.c2
d. Maturity data for brokered deposits:
(1) Brokered deposits issued in denominations of less than $ 100,000 with a
remaining maturity of one year or less (included in Memorandum item
1.c.(1) above)__________________________________________________________________A243. . 0 M.1.d1
(2) Brokered deposits issued in denominations of $ 100,000 or more with a
remaining maturity of one year or less (included in Memorandum item
1.b above)______________________________________________________________________A244. . 0 M.1.d2
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. . 0 M.1.e
2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.d
must equal item 8, column C, above):
a. Saving deposits:
(1) Money Market deposit accounts (MMDAs)___________________________________________6810. . 0 M.2.a1
(2) Other savings deposits (excludes MMDAs)_________________________________________0352. . 0 M.2.a2
b. Total time deposits of less than $ 100,000__________________________________________6648. . 0 M.2.b
c. Time certificates of deposit of $ 100,000 or more___________________________________6645. . 0 M.2.c
d. Open-account time deposits of $ 100,000 or more_____________________________________6646. . 0 M.2.d
3. All NOW accounts (included in column A above)__________________________________________2398. . 0 M.3
4. Not applicable
</TABLE>
<PAGE>
16
Schedule RC-E - Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Memoranda (Continued)
5. Maturity and repricing data for time deposits of less than $ 100,000 (sum of Memorandum
items 5.a(1) through 5.b(3) must equal Memorandum item 2.b above): (1) RCON
a. Fixed rate time deposits of less than $ 100,000 with a remaining maturity of: ----
(1) Three months or less_________________________________________________________________A225. . 0 M.5.a1
(2) Over three months through 12 months__________________________________________________A226. . 0 M.5.a2
(3) Over one year________________________________________________________________________A227. . 0 M.5.a3
b. Floating rate time deposits of less than $ 100,000 with a repricing frequency of:
(1) Quarterly or more frequently_________________________________________________________A228. . 0 M.5.b1
(2) Annually or more frequently, but less frequently than quarterly______________________A229. . 0 M.5.b2
(3) Less frequently than annually________________________________________________________A230. . 0 M.5.b3
c. Floating rate time deposits of less than $ 100,000 with a remaining maturity of
one year or less (included in Memorandum items 5.b.(1) through 5.b.(3) above)____________A231. . 0 M.5.c
6. Maturity and repricing data for time deposits of $ 100,000 or more (i.e., time
certificates of deposit of $ 100,000 or more and open-account time deposits of
$ 100,000 or more) (sum of Memorandum items 6.a.(1) through 6.b.(4) must equal
the sum of Memorandum items 2.c and 2.d above): (1)
a. Fixed rate time deposits of $ 100,000 or more with a remaining maturity of:
(1) Three months of less_________________________________________________________________A232. . 0 M.6.a1
(2) Over three months through 12 months__________________________________________________A233. . 0 M.6.a2
(3) Over one year through five years_____________________________________________________A234. . 0 M.6.a3
(4) Over five years______________________________________________________________________A235. . 0 M.6.a4
b. Floating rate time deposits of $ 100,000 or more with a repricing frequency of:
(1) Quarterly or more frequently_________________________________________________________A236. . 0 M.6.b1
(2) Annually or more frequently, but less frequently than quarterly______________________A237. . 0 M.6.b2
(3) Every five years or more frequently, but less frequently than annually_______________A238. . 0 M.6.b3
(4) Less frequently than every five years________________________________________________A239. . 0 M.6.b4
c. Floating rate time deposits of $ 100,000 or more with a remaining maturity of
one year or less (included in Memorandum items 6.b.(1) through 6.b.(4) above)____________A240. . 0 M.6.c
</TABLE>
- ----------
(1) Memorandum items 5 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
<PAGE>
17
Schedule RC-F - Other Assets
<TABLE>
<CAPTION>
c130 < -
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
RCON
----
<S> <C>
1. Income earned, not collected on loans (1)__________________________ 2164. . . . 0 1.
2. Net deferred tax assets (2)________________________________________ 2148. . . . 2,136 2.
3. Excess residential mortgage servicing fees receivable______________ 5371. . . . 0 3.
4. Other (itemize and describe amounts greater than $25,000 that
exceed 25% OF this item____________________________________________ 2168. . . . 20,186 4.
TEXT RCON
---- ----
a. 3549: Personal Trust Fees Receivable___________ 3549. . 7,982 . . . . . 4.a
b. 3550:__________________________________________ 3550. . N/A . . . . . 4.b
c. 3551:__________________________________________ 3551. . N/A . . . . . 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, Item 11) 2160. . . . 22,322 5.
<CAPTION>
Memorandum
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
<S> <C>
1. Deferred tax assets disallowed for regulatory capital purposes_____ 5610. . . . 0 M.1
</TABLE>
Schedule RC-G - Other Liabilities
<TABLE>
<CAPTION>
c135 < -
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
RCON
----
<S> <C>
1. a. Interest accrued and unpaid on deposits (3)_____________________ 3645. . . . 0 1.a
b. Other expenses accrued and unpaid (includes accrued income
taxes payable)__________________________________________________ 3646. . . . 11,202 1.b
2. Net deferred tax liabilities (2)___________________________________ 3049. . . . 0 2.
3. Minority interest in consolidated subsidiaries_____________________ 3000. . . . 0 3.
4. Other (itemize and describe amounts greater than $25,000 that
exceed 25% of this item)___________________________________________ 2938. . . . 25,971 4.
TEXT RCON
---- ----
a. 3552: Escheatable Funds_________________________ 3552. . 21,532 . . . . . 4.a
b. 3553: __________________________________________ 3553. . N/A . . . . . 4.b
c. 3554: __________________________________________ 3554. . N/A . . . . . 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20) 2930. . . . 37,173 5.
</TABLE>
- ----------
1) Report income earned, not collected on securities (and on other assets) in
item 4 of Schedule RC-F.
2) See discussion of deferred income taxes in Glossary entry on "income taxes."
3) For saving banks, includes "dividends" accrued and unpaid on deposits.
<PAGE>
18
Schedule RC-K - Quarterly Averages (1)
<TABLE>
<CAPTION>
c155 < -
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
<S> <C>
RCON
----
ASSETS
1. Interest-bearing balances due from depository institutions_________ 3381. . . . 8,372 1.
2. a. U.S. Treasury securities, U.S. Government agency and corporation
obligations, and other debt securities (4) (excluding securities
issued by states and political subdivisions in the U.S.)________ 3649. . . . 0 2.a
b. Equity securities (5)(includes investments in mutual funds and
Federal Reserve stock)__________________________________________ 3648. . . . 750 2.b
3. Securities issued by states and political subdivisions
in the U.S. (4)____________________________________________________ 3383. . . . 300 3.
4. Federal funds sold and securities purchased under agreements to
resell_____________________________________________________________ 3365. . . . 879 4.
5. Loans (2,3):
a. Total loans, net of unearned income (to be completed by those
banks with less than $25 million in assets)_____________________ 3360. . . . 0 5.a
The following four items are to be completed only by those banks
with $25 million or more in total assets.
b. Real estate loans_______________________________________________ 3286. . . . 0 5.b
c. Installment loans_______________________________________________ 3287. . . . 0 5.c
d. Credit cards and related plans__________________________________ 3288. . . . 0 5.d
e. Commercial (time and demand) and all other loans________________ 3289. . . . 0 5.e
6. Lease financing receivables (net of unearned income)_______________ 3484. . . . 0 6.
7. Total assets(6)____________________________________________________ 3368. . . . 80,488 7.
LIABILITIES
8. Interest-bearing transaction accounts (NOW accounts, ATS accounts,
and telephone and preauthorized transfer accounts) (exclude
demand deposits)___________________________________________________ 3485. . . . 0 8.
9. Nontransaction accounts:
a. Money market deposit accounts (MMDAs)___________________________ 3486. . . . 0 9.a
b. Other savings deposits__________________________________________ 3487. . . . 0 9.b
c. Time certificates of deposit of $100,000 or more________________ 3345. . . . 0 9.c
d. All other time deposits (include all time deposits of less than
$100,000 and open-account time deposits of $100,000 or more)____ 3469. . . . 0 9.d
10. Federal funds purchased and securities sold under agreements to
repurchase_________________________________________________________ 3353. . . . 0 10.
<CAPTION>
Memorandum
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. To be completed by banks with $25 million or more in total assets
and with loans to finance agricultural production and other loans
to farmers (Schedule RC-C, part I, item 3) exceeding five percent
of total loans. (3)
RCON
----
Agricultural loans included in items 5.b through 5.e above_________ 3379. . . . 0 M.1
</TABLE>
- ----------
(1) For all items, banks have the option of reporting either (1) an average
of daily figures for the quarter or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter). In addition, averages of four
month-end figures (the last day of the preceding quarter and of each month
of the currently-reported quarter) are allowed for items 2, 3, 5.a through
5.e, 6, 7, and Memorandum item 1.
(2) See instructions for loan classifications used in this schedule.
(3) The $25 million asset size test and the five percent of total loans test
are generally based on the total assets and total loans reported on the
June 30, 1995 Report of Condition.
(4) Quarterly averages for all debt securities should be based on amortized
cost.
(5) Quarterly averages for all equity securities should be based on historical
cost.
(6) The quarterly average for total assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
<PAGE>
19
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>
c160 < -
Dollar Amount in Thousands
- --------------------------------------------------------------------------------------------------------
<S> <C>
RCON
----
1. Unused commitments:
a. Revolving, open-end lines secured by 1-4 family residential
properties, e.g., home equity lines_____________________________ 3814. . . . 0 1.a
b. Credit card lines_______________________________________________ 3815. . . . 0 1.b
c. Commercial real estate, construction, and land development:
(1) Commitments to fund loans secured by real estate____________ 3816. . . . 0 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. . . . 0 1.e
2. Financial standby letters of credit (1)____________________________ 3819. . . . 0 2.
RCON
a. Amount of financial standby letters of credit ----
conveyed to others_______________________________ 3820. . 0 . . . . . 2.a
3. Performance standby letters of credit (1)__________________________ 3821. . . . 0 3.
RCON
a. Amount of performance standby letters of credit ----
conveyed to others_______________________________ 3821. . 0 . . . . . 3.a
4. Commercial and similar letters of credit (1)_______________________ 3411. . . . 0 4.
5. Not applicable_____________________________________________________
6. Participations in acceptances (as described in the instructions)
acquired by the reporting (nonaccepting) bank______________________ 3429. . . . 0 6.
7. Securities borrowed________________________________________________ 3432. . . . 0 7.
8. Securities lent (including customers' securities lent where the
customer is indemnified against loss by the reporting bank)________ 3433. . . . 0 8.
9. Loans transferred (i.e., sold or swapped) with recourse that have
been treated as sold for Call Report purposes:
a. FNMA and FHLMC residential mortgage loan pools:
(1) Outstanding principal balance of mortgages as of the
report date_________________________________________________ 3650. . . . 0 9.a.1
(2) Amount of recourse exposure on these mortgages as of the
report date_________________________________________________ 3651. . . . 0 9.a.2
b. Private (nongovernment-issued or -guaranteed) residential mortgage
loan pools:
(1) Outstanding principal balance of mortgages transferred as of
the report date_____________________________________________ 3652. . . . 0 9.b.1
(2) Amount of recourse exposure on these mortgages as of the
report date_________________________________________________ 3653. . . . 0 9.b.2
c. Farmer Mac agricultural mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of
the report date_____________________________________________ 3654. . . . 0 9.c.1
(2) Amount of recourse exposure on these mortgages as of the
report date_________________________________________________ 3655. . . . 0 9.c.2
d. Small business obligations transferred with recourse under
section 208 of the Riegle Community Development and Regulatory
Improvement Act of 1994:
(1) Outstanding principal balance of small business obligations
transferred as of the report date___________________________ A249. . . . 0 9.d.1
(2) Amount of retained recourse on these obligations as of the
report date_________________________________________________ A250. . . . 0 9.d.2
10. When-issued securities:
a. Gross commitments to purchase___________________________________ 3434. . . . 0 10.a
b. Gross commitments to sell_______________________________________ 3435. . . . 0 10.b
11. Spot foreign exchange contracts____________________________________ 8765. . . . 0 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet
derivatives) (itemize and describe each component of this item over
25% of Schedule RC, item 28.a "total equity capital")______________ 3430. . . . 0 12.
TEXT RCON
---- ----
a. 3555:__________________________________________ 3555. . N/A . . . . . 12.a
b. 3556:__________________________________________ 3556. . 0 . . . . . 12.b
c. 3557:__________________________________________ 3557. . N/A . . . . . 12.c
d. 3558:__________________________________________ 3558. . N/A . . . . . 12.d
</TABLE>
- ----------
1) Do not report letters of credit as "contra" items in "Other assets" (Schedule
RC-F) and "other liabilities" (Schedule RC-G).
<PAGE>
20
Schedule RC-L - Continued
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------
13. All other off-balance sheet assets (exclude off-balance sheet derivatives)
(itemize and describe each component of this item over 25% of Schedule RC,
Item 28.a "Total equity capital")_____________________5591. . 0 13.
TEXT RCOW
---- ----
a. 5592:_____________________5592 . . N/A . . . . . . 13.a
b. 5593:_____________________5593 . . N/A . . . . . . 13.b
c. 5594:_____________________5594 . . N/A . . . . . . 13.c
d. 5595:_____________________5595 . . N/A . . . . . . 13.d
<TABLE>
<CAPTION>
C161 < -
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Equity Commodity
Off-Balance Sheet Derivatives Position Interest Rate Foreign Exchange Derivative And Other
Indicators Contracts Contracts Contracts Contracts
- -------------------------------------------- ------------------ ------------------ ------------------ -------------------
<S> <C> <C> <C> <C>
14. Gross amounts (e.g., notional
amounts)(for each column, sum of
items 14.a through 14.e must equal
sum of items 15, 16a., and 16.b): RCON RCON RCON RCON
---- ---- ---- ----
a. Futures contracts___________________8693. . 0 8694. . 0 8695. . 0 8696. . 0 14.a
b. Forward contracts___________________8697. . 0 8698. . 0 8699. . 0 8700. . 0 14.b
c. Exchange-traded option contracts:
(1) Written options_________________8701. . 0 8702. . 0 8703. . 0 8704. . 0 14.c1
(2) Purchased options_______________8705. . 0 8706. . 0 8707. . 0 8708. . 0 14.c2
d. Over-the-counter option contracts:
(1) Written options_________________8709. . 0 8710. . 0 8711. . 0 8712. . 0 14.d1
(2) Purchased options_______________8713. . 0 8714. . 0 8715. . 0 8716. . 0 14.d2
e. Swaps_______________________________3450. . 0 3826. . 0 8719. . 0 8720. . 0 14.e
15. Total gross notional amount of
derivative contracts held for
trading_________________________________A126. . 0 A127. . 0 8723. . 0 8724. . 0 15.
16. Total gross notional amount of
derivative contracts held for
purposes other than trading:
a. Contracts marked to market__________8725. . 0 8726. . 0 8727. . 0 8728. . 0 16.a
b. Contracts not marked to market______8729. . 0 8730. . 0 8731. . 0 8732. . 0 16.b
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------
<S> <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 RCON
unused portions of commitments that are fee paid or otherwise legally ----
binding)_____________________________________________________________________3833. . 0 M.3
</TABLE>
- -------------
<PAGE>
21
Schedule RC-M - Memoranda
<TABLE>
<CAPTION>
C165 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <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, RCON
----
principal shareholders and their related interests_________________________________________6164. . 0 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 RCON Number
lesser of $ 500,000 or 5 percent of total capital as ---- ------
defined for this purpose in agency regulations_________6165. . 0 . . . . . 1.b
2. Not applicable
3. a. Noninterest-bearing balances due from commercial banks in the U.S. (included in RCON
Schedule RC, item 1.a) (exclude balances due from Federal Reserve Banks and cash ----
items in process of collection)____________________________________________________________0050. . 49,374 3.a
b. Currency and coin (included in Schedule RC, item 1.a)______________________________________0080. . 0 3.b
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for RCON
others (include both retained servicing and purchased servicing): ----
a. Mortgages serviced under a GNMA contract___________________________________________________5500. . 0 4.a
b. Mortgages serviced under a FHLMC contract:
(1) Serviced with recourse to servicer_____________________________________________________5501. . 0 4.b.1
(2) Serviced without recourse to servicer:_________________________________________________5502. . 0 4.b.2
c. Mortgages serviced under a FNMA contract:
(1) Serviced under a regular option contract_______________________________________________5503. . 0 4.c.1
(2) Serviced under a special option contract_______________________________________________5504. . 0 4.c.2
d. Mortgages serviced under other servicing contracts_________________________________________5505. . 0 4.d
5. Not applicable.
RCON
6. Intangible assets: ----
a. Mortgage servicing rights__________________________________________________________________3164. . 0 6.a
b. Other identifiable intangible assets:
(1) Purchased credit card relationships____________________________________________________5506. . 0 6.b.1
(2) All other identifiable intangible assets_______________________________________________5507. . 1,020 6.b.2
c. Goodwill___________________________________________________________________________________3163. . 0 6.c
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10)_____________________2143. . 1,020 6.d
e. Amount of intangible assets (inluded in item 6.b.(2) above)that have been
grandfathered or are otherwise qualifying for regulatory capital purposes__________________6442. . 0 6.e
RCON
7. Mandatory convertible debt, net of common or perpetual preferred stock dedicated to ----
redeem the debt________________________________________________________________________________3295. . 0 7.
RCON
8. a. Other real estate owned: ----
(1) Direct and indirect investments in real estate ventures________________________________5372. . 0 8.a.1
(2) All other real estate owned:
(a) Construction and land development__________________________________________________5508. . 0 8.a.2a
(b) Farmland___________________________________________________________________________5509. . 0 8.a.2b
(c) 1-4 family residential properties__________________________________________________5510. . 0 8.a.2c
(d) Multifamily (5 or more) residential properties_____________________________________5511. . 0 8.a.2d
(e) Nonfarm nonresidential properties__________________________________________________5512. . 0 8.a.2e
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7)______________2150. . 0 8.a.3
b. Investments in unconsolidated subsidiaries and associated companies:
(1) Direct and Indirect investments in real estate ventures________________________________5374. . 0 8.b.1
(2) All other investments in unconsolidated subsidiaries and associated companies__________5375. . 0 8.b.2
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8)______________2130. . 0 8.b.3
c. Total assets of unconsolidated subsidiaries and associated companies_______________________5376. . 0 8.c
</TABLE>
<PAGE>
22
Schedule RC-M - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RCON
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC, ----
item 23, "Perpetual preferred stock and related surplus"_______________________________________3778. . 0 9.
10. Mutual fund and annuity sales during the quarter (include proprietary, private label, RCON
and third party products): ----
a. Money market funds_________________________________________________________________________6441. . 0 10.a
b. Equity securities funds____________________________________________________________________8427. . 0 10.b
c. Debt securities funds______________________________________________________________________8428. . 0 10.c
d. Other mutual funds_________________________________________________________________________8429. . 0 10.d
e. Annuities__________________________________________________________________________________8430. . 0 10.e
f. Sales of propietary mutual funds and annuities (included in items 10.a through
10.e above)________________________________________________________________________________8784. . 0 10.f
<CAPTION>
Memorandum
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Interbank holdings of capital instruments (to be completed for the December report RCON
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>
<PAGE>
23
Schedule RC-N - Past Due and Nonaccrual Loans (1), Leases, and Other Assets
The FFIEC regards the information reported in all of Memorandum item 1, in
items 1 through 7, column A, and in Memorandum items 2 through 4, column A,
as confidential.
<TABLE>
<CAPTION>
C170 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
-------(Column A)------- -------(Column B)------- -------(Column C)-------
Past due 30 through 89 Past due 90 days or more Nonaccrual
days and still accruing and still accruing
------------------------ ------------------------ ------------------------
<S> <C> <C> <C>
RCON RCON RCON
---- ---- ----
1. Real estate loans_________________________1210. . 0 1211. . 0 1212. . 0 1.
2. Installment loans_________________________1214. . 0 1215. . 0 1216. . 0 2.
3. Credit cards and related plans____________1218. . 0 1219. . 0 1220. . 0 3.
4. Commercial (time and demand) and all
other loans_______________________________1222. . 0 1223. . 0 1224. . 0 4.
5. Lease financing receivables_______________1226. . 0 1227. . 0 1228. . 0 5.
6. Debt securities and other assets (exclude
other real estate owned and other
repossessed assets)_______________________3505. . 0 3506. . 0 3507. . 0 6.
- -----------------------------------------------------------------------------------------------------------------------------------
Amounts reported in items 1 through 5 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and
leases. Report in item 7 below certain guaranteed loans and leases that have already been included in the amounts reported in
items 1 through 5.
7. Loans and leases reported in items 1
through 5 above which are wholly or RCON RCON RCON
partially guaranteed by the U.S. ---- ---- ----
Government_______________________________5612. . 0 5613. . 0 5614. . 0 7.
a. Guaranteed portion of loans and leases
included in item 7 above______________5615. . 0 5616. . 0 5617. . 0 7.a
<CAPTION>
Memoranda C173 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Restructured loans and leases included in
Schedule RC-N, items 1 through 5, above RCON RCON RCON
(and not reported in Schedule RC-C, ---- ---- ----
Memorandum item 1)_______________________1658. . 0 1659. . 0 1661. . 0 M.1
2. To be completed by banks with loans to
finance agricultural production and other
loans to farmers (Schedule RC-C, part I,
item 3) exceeding five percent of total
loans: RCON RCON RCON
Agricultural loans included in Schedule ---- ---- ----
RC-N, items 1 through 4, above___________1230. . 0 1231. . 0 1232. . 0 M.2
3. Loans to finance commercial real estate,
construction, and land development
activities (not secured by real estate) RCON RCON RCON
included in Schedule RC-N, items 2 ---- ---- ----
through 4, above_________________________5421. . 0 5422. . 0 5423. . 0 M.3
4. Real estate loans (sum of Memorandum
items 4.a through 4.e must equal RCON RCON RCON
Schedule RC-N, item 1, above): ---- ---- ----
a. Construction and land development_____5424. . 0 5425. . 0 5426. . 0 M.4a
b. Secured by farmland___________________5427. . 0 5428. . 0 5429. . 0 M.4b
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___________________5430. . 0 5431. . 0 5432. . 0 M.4c1
(2) All other loans secured by 1-4
family residential properties_____5433. . 0 5434. . 0 5435. . 0 M.4c2
d. Secured by multifamily (5 or more)
residential properties________________5436. . 0 5437. . 0 5438. . 0 M.4d
e. Secured by nonfarm nonresidential
properties____________________________5439. . 0 5440. . 0 5441. . 0 M.4e
</TABLE>
- ----------
(1) See instructions for loan classification used in this schedule.
<PAGE>
24
Schedule RC-O - Other Data for Deposit Insurance Assessments
<TABLE>
<CAPTION>
C175 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
RCON
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)__________________________________________________________________________3520. . 0 3.
4. Deposits of consolidated subsidiaries (not included in total deposits):
a. Demand deposits of consolidated subsidiaries__________________________________________2211. . 0 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. Not applicable.
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 balance 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: RCON
a. Amount reflected in demand deposits (included in Schedule RC-E, item 4 or 5, ----
column B)_____________________________________________________________________________2314. . 0 6.a
b. Amount reflected in time and savings deposits (1) (included in Schedule RC-E,
item 4 or 5, column A or C, but not column B)_________________________________________2315. . 0 6.b
7. Unamortized premiums and discounts on time and savings deposits:(1)
a. Unamortized premiums__________________________________________________________________5516. . 0 7.a
b. Unamortized discounts_________________________________________________________________5517. . 0 7.b
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. . N/A 8.
9. Deposits in lifeline accounts____________________________________________________________ . . . . . . . . . . 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total
deposits)________________________________________________________________________________8432. . 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.
<PAGE>
25
Schedule RC-O - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
11. Adjustments to demand deposits reported in Schedule RC-E for certain reciprocal
demand balances:
a. Amount by which demand deposits would be reduced if reciprocal demand balances RCON
between the reporting bank and savings associations were reported on a net basis ----
rather than a gross basis in Schedule RC-E____________________________________________8785 0 11.a
b. Amount by which demand deposits would be increased if reciprocal demand balances
between the reporting bank and U.S. branches and agencies of foreign banks were
reported on a gross basis rather than a net basis in Schedule RC-E____________________A181 0 11.b
c. Amount by which demand deposits would be reduced if cash items in process of
collection were included in the calculation of net reciprocal demand balances
between the reporting bank and the domestic offices of U.S. banks and savings
associations in Schedule RC-E_________________________________________________________A182 0 11.c
<CAPTION>
Memoranda
(To be completed each quarter except as noted) Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Total deposits of the bank
(sum of Memorandum items 1.a.(1) and 1.b.(1) must equal Schedule RC, item 13.a): RCON
a. Deposit accounts of $100,000 or less: ----
(1) Amount of deposit accounts of $100,000 or less_____________________________________2702. . 0 M.1.a1
RCON Number
(2) Number of deposit accounts of $100,000 or less ---- ------
(to be completed for the June report only)____________3779. . 0 . . . . . . . . M.1.a2
b. Deposit accounts of more than $100,000:
(1) Amount of deposit accounts of more than $100,000___________________________________2710. . 0 M.1.b1
RCON Number
(2) Number of deposit accounts of more than ---- ------
$100,000______________________________________________2722. . 0 . . . . . . . . M.1.b2
2. Estimated amount of uninsured deposits 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 right whether your bank has a method or procedure RCON YES NO
for determining a better estimate of uninsured deposits than the estimate ---- --- --
described above_______________________________________________________________________6861. . X M.2.a
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
- -----------------------------------------------------------------------------------------------------------------------------------
C177 < -
</TABLE>
Person to whom questions about the Reports of Condition and Income should be
directed:
(612) 973-3306
Diane F. Hamernik, Accountant
- -------------------------------------------------------------------------------
Name and Title (TEXT 8901) Area code/phone number/extension (TEXT 8902)
<PAGE>
26
Schedule RC-R - Regulatory 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,
1995, must complete items 2 through 9 and Memoranda items 1 and 2. Banks with
assets of less than $1 billion must complete items 1 through 3 below or Schedule
RC-R in its entirety, depending on their response to item 1 below.
1. Test for determining the extent to which Schedule
RC-R must be completed. To be completed only by
banks with total assets of less than $1
billion. Indicate in the appropriate box at the C180 < -
right whether the bank has total capital RCON YES NO
greater than or equal to eight percent of ---- --- --
adjusted total assets___________________________ 6056 X 1.
For purposes of this test, adjusted total assets equals total assets
less cash, U.S. Treasuries, U.S. Government agency obligations, and 80
percent of U.S. Government-sponsored agency obligations plus the
allowance for loan and lease losses and selected off-balance sheet items
as reported on Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to
complete items 2 and 3 below. If the box marked NO has been checked, the
bank must complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's
actual risk-based capital ratio is less than eight percent or that the
bank is not in compliance with the risk-based capital guidelines.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C>
--------------------------------------------------
NOTE: All banks are required to complete (Column A) (Column B)
items 2 and 3 below. See optional worksheet Subordinated Debt (1) and
for items 3.a through 3.f. Intermediate Term Other Limited-Life
Preferred Stock Capital Instruments
2. Subordinated debt (1) and other limited-life capital ------------------------- ----------------------
instruments (original weighted average maturity of at
least five years) with a remaining maturity of: RCON RCON
---- ----
a. One year or less______________________________________3780. . 0 3786. . 0 2.a
b. Over one year through two years_______________________3781. . 0 3787. . 0 2.b
c. Over two years through three years____________________3782. . 0 3788. . 0 2.c
d. Over three years through four years___________________3783. . 0 3789. . 0 2.d
e. Over four years through five years____________________3784. . 0 3790. . 0 2.e
f. Over five years_______________________________________3785. . 0 3791. . 0 2.f
3. Amounts used in calculating regulatory capital ratios (report amounts
determined by the bank for its own internal regulatory capital analyses):
a. Tier 1 capital_______________________________________________________________________8274. . 53,302 3.a
b. Tier 2 capital_______________________________________________________________________8275. . 0 3.b
c. Total risk-based capital_____________________________________________________________3792. . 53,302 3.c
d. Excess allowance for loan and lease losses___________________________________________A222. . 0 3.d
e. Risk-weighted assets_________________________________________________________________A223. . 48,961 3.e
f. Average total assets_________________________________________________________________A224. . 79,461 3.f
</TABLE>
Items 4-9 and Memoranda items 1 and 2 are to be completed
by banks that answered NO to item 1 above and by banks
with total assets of $1 billion or more.
<TABLE>
<CAPTION>
-------------------------------------------------------
(Column A) (Column B)
Assets Recorded on the Credit Equivalent Amount
Balance Sheet off-Balance Sheet items (2)
---------------------- ---------------------------
<S> <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. RCON RCON
Government and its agencies and other OECD ---- ----
central governments_______________________________3794. . N/A . . . . . . . . 4.a.1
(2) All other_________________________________________3795. . 750 . . . . . . . . 4.a.2
b. Credit equivalent amount of off-balance sheet items___ . . . . . . . . . . 3796. . N/A 4.b
</TABLE>
- ---------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not report in column B the risk-weighted amount of assets reported in
column A.
<PAGE>
27
Schedule RC-R - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C>
-------------------------------------------------------
5. Assets and credit equivalent amounts of off-balance (Column A) (Column B)
sheet items assigned to the 20 percent risk Assets Recorded on the Credit Equivalent Amount
category: Balance Sheet off-Balance Sheet Items (1)
---------------------- ---------------------------
a. Assets recorded on the balance sheet:
(1) Claims conditionally guaranteed by the U.S. RCON RCON
Government and its agencies and other OECD ---- ----
central governments_______________________________3798. . N/A . . . . . . . . 5.a.1
(2) Claims collateralized by securities issued by
the U.S. Government and its agencies and other
OECD central governments; by securities issued
by U.S. Government-sponsored agencies; and by
cash on deposit___________________________________3799. . N/A . . . . . . . . 5.a.2
(3) All other_________________________________________3800. . 50,953 . . . . . . . . 5.a.3
b. Credit equivalent amount of off-balance sheet items___ . . . . . . . . . 3801. . N/A 5.b
6. Assets and credit amount of off-balance
sheet items assigned to the 50 percent risk category:
a. Assets recorded on the balance sheet__________________3802. . 3 . . . . . . . . 6.a
b. Credit equivalent amount of off-balance sheet items___ . . . . . . . . . 3803. . N/A 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. . 39,789 . . . . . . . . 7.a
b. Credit equivalent amount of off-balance sheet items___ . . . . . . . . . 3805. . N/A 7.b
8. On-balance sheet asset values excluded from the
calculation of the risk-based capital ratio(2)___________3806. . 7 . . . . . . . . 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.c plus items 4.b and 4.c)___________3807. . 91,502 . . . . . . . . 9.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C>
RCON
1. Current credit exposure across all off-balance sheet derivative contracts ----
covered by the risk-based capital standards_________________________________________8764. . N/A M.1
</TABLE>
<TABLE>
<CAPTION>
------------------------ With a remaining maturity of -------------------------
(Column A) (Column B) (Column C)
Over one year
One year or less through five years Over five years
-------------------- ---------------------- -----------------------
<S> <C> <C> <C>
2. Notional principal amounts of off-balance
sheet derivative contracts: (3) RCON RCON RCON
---- ---- ----
a. Interest rate contracts 3809. . N/A 8766. . N/A 8767 N/A M.2a
b. Foreign exchange contracts 3812. . N/A 8769. . N/A 8770 N/A M.2b
c. Gold contracts 8771. . N/A 8772. . N/A 8773 N/A M.2c
d. Other precious metals contracts 8774. . N/A 8775. . N/A 8776 N/A M.2d
e. other commodity contracts 8777. . N/A 8778. . N/A 8779 N/A M.2e
f. Equity derivative contracts A000. . N/A A001. . N/A A002 N/A M.2f
</TABLE>
- ---------
(1) Do not report in column B the risk-weighted amount of assets reported in
column A.
(2) Include the difference between the fair value and the amortized cost of
available-for-sale securities in item 8 and report the amortized cost of
these securities in items 4 through 7 above. Item 8 also includes
on-balance sheet asset values (or portions thereof) of off-balance sheet
interest rate, foreign exchange rate, and commodity contracts and those
contracts (e.g. future contracts) not subject to risk-based capital.
Exclude from item 8 margin accounts 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) Exclude foreign exchange contracts with an original maturity of 14 days or
less and all futures contracts.
<PAGE>
28
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on June 30, 1996
<TABLE>
<CAPTION>
FIRST TRUST NATIONAL ASSOCIATION ST. PAUL MN
- -------------------------------------------------------------- ------------------------ -------------------------------
<S> <C> <C>
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit the truncated statement will appear as the bank's statement
a brief narrative statement on the amounts reported in the both on agency computerized records and in computer-file re-
Reports of Condition and Income. This optional statement will leases to the public.
be made available to the public, along with the publicly
available data in the Reports of Condition and Income, in re- All information furnished by the bank in the narrative state-
sponse to any request for individual bank report data, How- ment must be accurate and not misleading. Appropriate efforts
ever, the information reported in column A and in all of Memo- shall be taken by the submitting bank to ensure the statement's
randum item 1 of Schedule RC-N is regarded as confidential and accuracy. The statement must be signed, in the space provided
will not be released to the public. BANKS CHOOSING TO SUBMIT below, by a senior officer of the bank who thereby attests to
THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT DOES its accuracy.
NOT CONTAIN THE NAMES OR OTHER IDENTIFICATION OF INDIVIDUAL
BANK CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CON- If, subsequent to the original submission, material changes are
FIDENTIAL ITEMS IN SCHEDULE RC-N, OR ANY OTHER INFORMATION submitted for the data reported in the Reports of Condition and
THAT THEY ARE NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD Income, the existing narrative statement will be deleted from
COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing not the files, and from disclosure; the bank, at its option, may
to make a statement may check the "No comment" box below and replace it with a statement, under signature, appropriate to
should make no entries of any kind in the space provided for the amended data.
the narrative statement; i.e., DO NOT enter in this space such
phrases as "No statement," "Not applicable," "N/A," "No The optional narrative statement will appear in agency records
comment," and "None." 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 optional statement must be entered on this sheet. The the 750-character limit described above). THE STATEMENT WILL
statement should not exceed 100 words. Further, regardless NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY
of the number of words, the statement must not exceed 750 AGENCIES FOR ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT
characters, including punctuation, indentation, and standard SHALL NOT SIGNIFY THAT ANY FEDERAL SUPERVISORY AGENCY HAS VERI-
spacing between words and sentences. If any submission should FIED OR CONFIRMED THE ACCURACY OF THE INFORMATION CONTAINED
exceed 750 characters, as defined, it will be truncated at 750 THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY PUBLIC
characters with no notice to the submitting bank and RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT
OF THE REPORTING BANK.
- -----------------------------------------------------------------------------------------------------------------------------------
C171 C172 < -
</TABLE>
No comment: X (RCON 6979)
BANK MANAGEMENT STATEMENT (please type or print clearly) (TEXT 6980):
-------------------------------------- -----------------
Signature of Executive Officer of Bank Date of Signature
<PAGE>
29
THIS PAGE TO BE COMPLETED BY ALL BANKS
- -------------------------------------------------------------------------------
OMB No. for OCC: 1557-0081
OMB No. for FDIC: 3064-0052
OMB No. for Federal Reserve: 7100-0036
Expiration Date: 03/31/99
SPECIAL REPORT
(Dollar Amounts in Thousands)
CLOSE OF BUSINESS DATE: FDIC Certificate Number:
June 30, 1996 90319 C700 < -
- -------------------------------------------------------------------------------
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>
<CAPTION>
RCON
----
<S> <C>
a. Number of loans made to executive officers
since the previous Call Report date__________3561. . NONE a
b. Total dollar amount of above loans (in
thousands of dollars)________________________3562. . 0 b
c. Range of interest charged on above loans
(example: 9-3/4% = 9.75)________________7701/7702. . 0.00% to 0.00% c
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
<S> <C>
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT: DATE (Month, Day, Year):
/s/ [ , Asst. Secretary] 7-12-96
- -----------------------------------------------------------------------------------------------------------
NAME AND TITLE OF PERSON TO WHOM INQUIRES MAY BE DIRECTED: (TEXT 8903) AREA CODE/PHONE NUMBER/EXTENSION
(TEXT 8904)
(612) 973-3306
Diane F. Hamernik, Accountant
- -----------------------------------------------------------------------------------------------------------
</TABLE>
