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As filed with the Securities and Exchange Commission on November ____, 1996
--------------------------------------------------------
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE REYNOLDS AND REYNOLDS COMPANY
(Exact name of registrant as specified in its charter)
Ohio
(State or other jurisdiction of incorporation or organization)
31-0421120
(I.R.S. Employer Identification No.)
115 South Ludlow Street
Dayton, Ohio 45402
(937) 443-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
ADAM M. LUTYNSKI, ESQ.
The Reynolds and Reynolds Company
115 South Ludlow Street
Dayton, Ohio 45402
(937) 443-2000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Jeffry A. Melnick Patricia A. Ceruzzi
Coolidge, Wall, Womsley & Lombard Co., L.P.A. Sullivan & Cromwell
33 West First Street, Suite 600 125 Broad Street
Dayton, Ohio 45402 New York, New York 10004
(937) 223-8177 (212) 558-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of the Registration Statement as
the Registrant shall determine.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, 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 the Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Security Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Title of each class Amount to be Proposed Proposed maximum Amount of
of securities to be registered maximum offering aggregate offering registration fee
registered price per unit (1) price (1)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $300,000,000(2)(3) 100% $300,000,000 $90,909.09
- ----------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Or its equivalent in any other currency or composite currency.
(3) Plus such additional principal amount as may be necessary such that, if
Debt Securities are issued with an original issue discount, the aggregate
initial offering price of all Debt Securities will equal $300,000,000
</TABLE>
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
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SUBJECT TO COMPLETION, DATED NOVEMBER __, 1996
$300,000,000
The Reynolds and Reynolds Company
Debt Securities
---------------------------
The Company may from time to time offer Debt Securities consisting of
debentures, notes and/or other unsecured evidences of indebtedness in one or
more series at an aggregate initial offering price not to exceed $300,000,000 or
its equivalent in any other currency or composite currency. The Debt Securities
may be offered as separate series in amounts, at prices and on terms to be
determined at the time of sale. The accompanying Prospectus Supplement sets
forth with regard to the series of Debt Securities in respect of which this
Prospectus is being delivered the title, aggregate principal amount,
denominations (which may be in United States dollars, in any other currency or
in a composite currency), maturity, rate, if any (which may be fixed or
variable), and time of payment of any interest, any terms for redemption at the
option of the Company or the holder, any terms for sinking fund payments, any
listing on a securities exchange and the initial public offering price and any
other terms in connection with the offering and sale of such series of Debt
Securities.
The Company may sell Debt Securities to or through underwriters, and also
may sell Debt Securities directly to other purchasers or through agents. Such
underwriters may include Goldman, Sachs & Co., or may be a group of underwriters
represented by firms including Goldman, Sachs & Co. and Deutsche Morgan
Grenfell. Goldman, Sachs & Co. and Deutsche Morgan Grenfell may also act as
agents. See "Plan of Distribution". The accompanying Prospectus Supplement sets
forth the names of any underwriters or agents involved in the sale of the Debt
Securities in respect of which this Prospectus is being delivered, the principal
amounts, if any, to be purchased by underwriters and the compensation, if any,
of such underwriters or agents.
---------------------------
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.
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
Goldman, Sachs & Co. Deutsche Morgan Grenfell
---------------------------
The date of this Prospectus is _____________, 1996.
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[to be inserted sideways down cover page of prospectus and printed in red ink]
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.
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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 and information statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy and information statements and other information filed by the Company can
be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at
the Commission's regional offices at 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and at 7 World Trade Center, Suite 1300, New York, New
York 10048; and copies of such material can be obtained at prescribed rates from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. If available, such reports and other information may
also be accessed through the Commission's electronic data gathering, analysis
and retrieval system ("EDGAR") via electronic means, including the Commission's
web site on the Internet (http://www.sec.gov). The Company's Class A Common
Shares are listed on the New York Stock Exchange and reports, proxy and
information statements and other information concerning the Company can be
inspected at such exchange at 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
does not contain all of the information set forth in such Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. Reference is made to such Registration Statement
and to the exhibits relating thereto for further information with respect to the
Company and the Offered Debt Securities. Any statements contained herein
concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission or incorporated by
reference herein are not necessarily complete, and, in each instance, reference
is made to the copy of such document so filed for a more complete description of
the matter involved. Each such statement is qualified in its entirety by such
reference.
The Company's principal executive offices are located at 115 South Ludlow
Street, Dayton, Ohio 45402, and its telephone number at that address is (937)
443-2000.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following document, which have been filed with the Commission pursuant
to the Exchange Act, is incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K (including financial statements
together with the independent auditors report thereon) for the fiscal
year ended September 30, 1996 (File No. 0-132).
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All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, subsequent to the date of this Prospectus and prior
to the termination of the offering of the Offered Debt Securities shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of any such document. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein or in
any Prospectus Supplement shall be deemed to be modified by or superseded for
purposes of this Prospectus or any Prospectus Supplement to the extent that a
statement contained herein or therein or in any other subsequently filed
document 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 any Prospectus Supplement.
A copy of any document or part thereof incorporated by reference in the
registration statement of which this Prospectus constitutes a part (not
including exhibits to the information that is incorporated by reference unless
such exhibits are specifically incorporated by reference into the information
that the registration statement incorporates) shall be provided without charge
to each person, including any beneficial owner, to whom a copy of this
Prospectus is delivered, upon written or oral request made to the Company at 115
South Ludlow Street, Dayton, Ohio 45402, Attention: General Counsel and
Secretary, (937) 443-2000.
THE COMPANY
The Company, incorporated in 1889, operates principally in two business
segments - business forms and computer systems.
The business forms segment offers its products and services to customers in
the automotive, healthcare and general business markets. It operates nineteen
manufacturing facilities in the United States and Canada. In the automotive
market, the Company offers its products and services to all departments of
automobile, truck and recreational vehicle dealerships including sales, parts,
service, accounting, finance and insurance. The Company also markets its
products and services to automotive-related businesses such as repair garages,
auto parts stores, service stations and body shops. The products and services
include standard and custom business forms (including dealer image products),
forms management services, promotional items, custom designed filing systems,
dealership customer satisfaction measurement and management services, customer
prospecting services, and promotional mailing services. In the healthcare
market, the Company offers standard and custom forms and forms management
services to hospitals and large healthcare organizations. In the general
business market, the Company offers a wide variety of paper-based and electronic
business document solutions to value seeking businesses. Solutions offered
include standard and custom business forms, electronic business forms, on-demand
printing services, checks, labels, mailers, stationery, envelopes and tickets.
Many of these business documents incorporate a broad range of security features
to help deter fraudulent document reproduction and counterfeiting. The Company
also offers a wide variety of forms management solutions to help customers
improve their productivity: forms survey and analysis, inventory management and
reporting, cost center reporting, low stock reporting, distribution services and
process work flow reengineering services. Additionally, pegboard accounting
systems are sold to smaller businesses through a network of office supply
dealers and independent forms distributors.
The computer systems segment offers its products and services to the
automotive and healthcare markets. The Company markets turnkey information
management systems and professional services primarily to
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automobile dealers. The hardware portion of the systems is supplied from
manufacturers who specialize in platforms for industry-standard operating
systems. With a few minor exceptions, the application software products are
owned by the Company and licensed to users. Some of the software products
offered include standard programs for accounting, payroll, vehicle and parts
inventory control, service merchandising and scheduling, leasing, finance and
insurance, parts and vehicle locators, manufacturer communications, new and used
vehicle retailing, and electronic document imaging. Other applications link
dealerships to credit bureaus to verify the credit worthiness of prospective
customers, process and approve credit documentation and electronically process
vehicle registrations in five states. The Company also markets computer products
and services directly to automobile manufacturers. Hardware maintenance,
software support and training and other professional services are integral parts
of the Company's turnkey approach to marketing computer systems. These services
are provided by service and support personnel located in nearly 125 offices in
the United States and Canada. The Healthcare Systems Division markets a similar
array of turnkey computer systems and services to physician groups and
integrated healthcare delivery networks. Products include software and services
for the administrative and clinical processes that enhance the practice of
medicine.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the Offered
Debt Securities will be used as set forth in a Prospectus Supplement relating
to such Offered Debt Securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the periods indicated:
<TABLE>
<CAPTION>
Fiscal Year Ended
September 30, September 30, September 30, September 30, September 30, September 30,
1991 1992 1993 1994 1995 1996
- ------------ ------------ ------------ ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
3.08x 4.77x 7.14x 7.44x 8.85x 7.94x
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings by
fixed charges. For this purpose, earnings includes income before income taxes
and fixed charges excluding capitalized interest. Fixed charges includes
interest expense, capitalized interest and one-third of rent expense,
representative of the interest factor.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may not apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
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The Debt Securities are to be issued under an Indenture to be dated as of
________, 1996 (the "Indenture") between the Company and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). A copy of the
form of such Indenture has been filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Debt Securities
and the Indenture do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the
Indenture, including the definitions therein of certain terms. Wherever
particular Sections, Articles or defined terms of the Indenture are referred
to, it is intended that such Sections, Articles or defined terms shall be
incorporated herein by reference. Article and Section references used herein
are references to the Indenture. Capitalized terms not otherwise defined herein
shall have the respective meanings given to them in the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the Company and will
rank on a parity with all other unsecured and unsubordinated debt of the
Company.
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provides that Debt Securities may
be issued thereunder from time to time in one or more series. Reference is made
to the Prospectus Supplement relating to the particular Debt Securities offered
thereby (the "Offered Debt Securities") which shall set forth the following
terms, as applicable, of the Offered Debt Securities: (1) the title of the
Offered Debt Securities; (2) any limit on the aggregate principal amount of the
Offered Debt Securities; (3) the price (expressed as a percentage of the
aggregate principal amount thereof) at which the Offered Debt Securities will be
issued; (4) the Person to whom any interest on the Offered Debt Securities will
be payable, if other than the Person in whose name such Offered Debt Securities
(or one or more Predecessor Securities) are registered on any Regular Record
Date; (5) the date or dates on which the principal of the Offered Debt
Securities will be payable; (6) the rate or rates per annum (which may be fixed,
floating or adjustable) at which the Offered Debt Securities will bear interest,
if any, or the formula pursuant to which such rate or rates shall be determined,
the date or dates from which such interest will accrue and the dates on which
such interest, if any, will be payable and the Regular Record Dates for such
interest payment dates; (7) the place or places where principal of (and premium,
if any) and interest, if any, on Offered Debt Securities will be payable; (8) if
applicable, the price at which, the periods within which and the terms and
conditions upon which the Offered Debt Securities may be redeemed at the option
of the Company, pursuant to a sinking fund or otherwise; (9) if applicable, any
obligation of the Company to redeem or purchase Offered Debt Securities pursuant
to any sinking fund or analogous provisions or at the option of a Holder
thereof, and the period or periods within which, the price or prices at which
and the terms and conditions upon which the Offered Debt Securities will be
redeemed or purchased, in whole or in part; (10) if other than denominations of
$1,000 and any integral multiple thereof, the denominations in which the Offered
Debt Securities will be issuable; (11) the currency or currencies, including
composite currencies or currency units, in which payment of the principal of (or
premium, if any) or interest, if any, on any of the Offered Debt Securities will
be payable if other than the currency of the United States of America; (12) if
the amount of payments of principal of (or premium, if any) or interest, if any,
on the Offered Debt Securities may be determined with reference to one or more
indices, the manner in which such amounts will be determined; (13) if the
principal of (or premium, if any) or interest, if any, on any of the Offered
Debt Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies, including composite currencies,
or currency units other than that or those in which the Securities are stated to
be payable, the currency, currencies, including composite currencies, or
currency units in which payment of the principal of (or premium, if any) or
interest, if any, on Securities of such series as to which such election is made
will be payable, and the periods within which and the terms and conditions upon
which such election is to be made; (14) the portion of the principal amount of
the Offered Debt Securities, if other than the entire principal amount thereof,
payable upon acceleration of maturity thereof; (15) whether all or any part of
the Offered Debt Securities will be issued in the form of a permanent Global
Security or Securities, as
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described under "Permanent Global Securities", and, if so, the depositary for,
and other terms relating to, such permanent Global Security or Securities; (16)
any event or events of default applicable with respect to the Offered Debt
Securities in addition to those provided in the Indenture; (17) any other
covenant or warranty included for the benefit of the Offered Debt Securities in
addition to (and not inconsistent with) those included in the Indenture for the
benefit of Debt Securities of all series, or any other covenant or warranty
included for the benefit of the Offered Debt Securities in lieu of any covenant
or warranty included in the Indenture for the benefit of Offered Debt
Securities, or any combination of such covenants, warranties or provisions; (18)
any restriction or condition on the transferability of the Offered Debt
Securities; (19) if applicable, that such Offered Debt Securities, in whole or
any specified part, are defeasible pursuant to the provisions of the Indenture
described under "Defeasance and Covenant Defeasance"; (20) any authenticating or
paying agents, registrars, conversion agents or any other agents with respect to
the Offered Debt Securities; and (21) any other specific terms or provisions of
the Offered Debt Securities not inconsistent with the Indenture. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities are to be issued as registered securities without
coupons in denominations of $1,000 or any integral multiple of $1,000. (Section
302). No service charge will be made for any transfer or exchange of such
Offered Debt Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
(Section 305)
Debt Securities may be issued under the Indenture as Original Issue
Discount Debt Securities to be offered and sold at a substantial discount below
their stated principal amount. Special Federal income tax, accounting and other
considerations applicable thereto will be described in the Prospectus Supplement
relating thereto. "Original Issue Discount Debt Security" means any security
which provides for an amount less than the principal amount thereof to be due
and payable upon the declaration of acceleration of the maturity thereof upon
the occurrence and continuance of an Event of Default. (Section 101)
If the Debt Securities are denominated in whole or in part in any currency
other than United States dollars, if the principal of (and premium, if any) or
interest, if any, on the Debt Securities are to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies other than that in
which such Debt Securities are to be payable, or if any index is used to
determine the amount of payments of principal of, premium, if any, or interest
on any series of the Debt Securities, special Federal income tax, accounting and
other considerations applicable thereto will be described in the Prospectus
Supplement relating thereto.
The Indenture does not contain any provisions that would provide protection
to Holders of the Debt Securities against a sudden and dramatic decline in
credit quality of the Company resulting from any takeover, recapitalization or
similar restructuring or from other highly leveraged transactions.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest payment. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities 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, except that, at
the option of the Company, payment of any interest may be made by check mailed
to the address of the Person entitled thereto as such address appears in the
Security Register. Unless otherwise indicated in the applicable
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Prospectus Supplement, the corporate trust office of the Trustee in
Minneapolis, Minnesota will be designated as the Company's sole Paying Agent
for payments with respect to Debt Securities of each series.
Any other Paying Agents initially designated by the Company for the Debt
Securities 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 Debt Securities of a
particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof.
(Section 1003)
COVENANTS
Limitation on Liens
The Indenture provides that the Company may not, and may not permit any
Principal Subsidiary to, create or suffer to exist any Lien to secure any
Indebtedness of the Company or any Subsidiary upon any Principal Property, or
upon any shares of capital stock or evidences of Indebtedness issued by any
Principal Subsidiary and owned by the Company or any Principal Subsidiary
(whether such Principal Property, shares or evidences of indebtedness were owned
as of the date of the Indenture or thereafter acquired), without making, or
causing such Principal Subsidiary to make, effective provision to secure all of
the Debt Securities issued under the Indenture and then Outstanding by such
Lien, equally and ratably with any and all other Indebtedness thereby secured,
so long as such Indebtedness is so secured, unless, after giving effect thereto,
the sum of (A) the principal amount of Indebtedness secured by all Liens
incurred after the date of the Indenture and otherwise prohibited by the
Indenture and (B) the Attributable Value of all Sale and Leaseback Transactions
entered into after the date of the Indenture and otherwise prohibited by the
Indenture does not exceed 10% of Consolidated Net Tangible Assets of the
Company. The foregoing restrictions shall not apply to Indebtedness secured by
Liens existing on the date of the Indenture or to: (i) Liens on any property
existing at the time of the acquisition thereof; (ii) Liens on property of a
corporation existing at the time such corporation is merged into or consolidated
with the Company or a Principal Subsidiary or at the time of a sale, lease or
other disposition of the properties of such corporation (or a division thereof)
as an entirety or substantially as an entirety to the Company or a Principal
Subsidiary, provided that such Lien as a result of such merger, consolidation,
sale, lease or other disposition is not extended to property owned by the
Company or such Principal Subsidiary immediately prior thereto; (iii) Liens on
property of a corporation existing at the time such corporation becomes a
Principal Subsidiary; (iv) Liens securing Indebtedness of a Principal Subsidiary
to the Company or to another Principal Subsidiary; (v) Liens to secure all or
part of the cost of acquisition, construction, development or improvement of the
underlying property, or to secure Indebtedness incurred to provide funds for any
such purpose, provided that the commitment of the creditor to extend the credit
secured by any such Lien shall have been obtained not later than 24 months after
the later of (a) the completion of the acquisition, construction, development or
improvement of such property or (b) the placing in operation of such property or
of such property as so constructed, developed or improved; (vi) Liens on any
property created, assumed or otherwise brought into existence in contemplation
of the sale or other disposition of the underlying property, whether directly or
indirectly, by way of share disposition or otherwise, provided that the Company
must have disposed of such property within 180 days after the creation of such
Liens and that any Indebtedness secured by such Liens shall be without recourse
to the Company or any Subsidiary; (vii) Liens in favor of the United States of
America or any State thereof, or any department, agency or instrumentality or
political subdivision thereof, to secure partial, progress, advance or other
payments;
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(viii) Liens to secure Indebtedness of joint ventures in which the Company or a
Principal Subsidiary has an interest, to the extent such Liens are on property
or assets of, or equity interests in, such joint ventures; and (ix) extension,
renewal, replacement or refunding of any Lien existing on the date of the
Indenture or referred to in clauses (i) to (iii) or (v), provided that the
principal amount of Indebtedness secured thereby and not otherwise authorized by
clauses (i) to (iii) or (v) shall not exceed the principal amount of
Indebtedness, plus any premium or fee payable in connection with any such
extension, renewal, replacement or refunding, so secured at the time of such
extension, renewal, replacement or refunding. (Section 1008)
Limitation on Sale and Leaseback Transactions
The Indenture provides that the Company may not, and may not permit any
Principal Subsidiary to, enter into any Sale and Leaseback Transaction with
respect to any Principal Property, unless, either (i) the Company or such
Principal Subsidiary would otherwise be entitled to issue, assume or guarantee
Indebtedness secured by a Lien on such Principal Property without equally and
ratably securing the outstanding Debt Securities under the Indenture; (ii) the
Company or such Principal Subsidiary applies, within 180 days after the
effective date of such Sale and Leaseback Transaction, an amount equal to the
Net Available Proceeds therefrom to (A) the acquisition of one or more Principal
Properties or (B) to the retirement of the Debt Securities or the repayment of
other Indebtedness of the Company or a Principal Subsidiary (other than such
Indebtedness owned by the Company or a Principal Subsidiary) which, in the case
of such Indebtedness of the Company, is not subordinate and junior in right of
payment to the prior payment of the Debt Securities; or (iii) after giving
effect thereto, the sum of (A) the principal amount of Indebtedness secured by
all Liens incurred after the date of the Indenture and otherwise prohibited by
the Indenture and (B) the Attributable Value of all Sale and Leaseback
Transactions entered into after the date of the Indenture and otherwise
prohibited by the Indenture does not exceed 10% of Consolidated Net Tangible
Assets of the Company. The foregoing restrictions will not apply to (x) a Sale
and Leaseback Transaction providing for a lease for a term, including any
renewal thereof, of not more than three years, by the end of which term it is
intended that the use of such Principal Property by the lessee will be
discontinued; (y) a Sale and Leaseback Transaction between the Company and a
Principal Subsidiary or between Principal Subsidiaries; (z) a Sale and Leaseback
Transaction between the Company or a Principal Subsidiary and a joint venture in
which the Company or a Principal Subsidiary has an interest. (Section 1009)
RESTRICTIONS ON MERGER AND SALE OF ASSETS
The Indenture provides that the Company may not consolidate with or merge
into any other Person or sell, lease or otherwise transfer its property and
assets as, or substantially as, an entirety to any Person, and the Company may
not permit any Person to merge into or consolidate with the Company unless (i)
either (A) the Company will be the resulting or surviving entity or (B) any
successor or purchaser is a corporation, partnership, limited liability company
or trust organized under the laws of the United States of America, any State or
the District of Columbia, and any such successor or purchaser expressly assumes
the Company's obligations on the Debt Securities under a supplemental Indenture;
(ii) immediately after giving effect to the transaction no Event of Default, and
no event which after notice or lapse of time or both would become an Event of
Default, shall have occurred and be continuing; (iii) if, as a result of any
such transaction, property or assets of the Company or any Principal Subsidiary
would become subject to a Lien which would not be permitted by the limitation on
Liens contained in the Indenture, the Company or, if applicable, the successor
to the Company, as the case may be, shall take such steps as shall be necessary
effectively to secure the Debt Securities issued under the Indenture equally and
ratably with Indebtedness secured by such Lien; and (iv) certain other
conditions are met. (Section 801). Upon any consolidation or merger into any
other Person or any conveyance, transfer or lease of the Company's assets
substantially as an entirety to any Person, the successor Person shall succeed
to, and be substituted for, the Company under the Indenture, and the Company,
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except in the case of a lease, shall be relieved of all obligations and
covenants under the Indenture and the Debt Securities to the extent it was the
predecessor Person. (Section 802)
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Debt Securities, the following events are defined in the
Indenture as "Events of Default" with respect to Debt Securities of any series:
(a) failure to pay principal (including any sinking fund payment) of (or
premium, if any, on) any Debt Security of that series when due; (b) failure to
pay any interest on any Debt Security of that series when due, continued for 30
days; (c) failure to perform any other covenant or agreement of the Company
under the Indenture (other than a covenant the performance of which is dealt
with specifically elsewhere in the Indenture or which has been included in the
Indenture solely for the benefit of a series of Debt Securities other than that
series), continued for 90 days after written notice as provided in the
Indenture; (d) failure to pay when due (after applicable grace periods as
provided in the Indenture) the principal of, or acceleration of, any
indebtedness for money borrowed by the Company having an aggregate principal
amount outstanding equal to at least $10 million, if such indebtedness is not
discharged, or such acceleration is not annulled, within 10 days after written
notice as provided in the Indenture; (e) certain events of bankruptcy,
insolvency or reorganization; and (f) any other Event of Default provided with
respect to Debt Securities of that series. (Section 501)
Except as defined in the Prospectus Supplement relating thereto and except
as specified in clauses (d) and (e) of the preceding paragraph, no Event of
Default with respect to Debt Securities of a particular series shall necessarily
constitute an Event of Default with respect to Debt Securities of any other
series. (Section 501) The Holders of a majority in aggregate principal amount of
the Outstanding Debt Securities of any series shall have the right, subject to
such provisions for indemnification of the Trustee, to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
under the Indenture or exercising any trust or power conferred on the Trustee
with respect to Debt Securities of that series. (Section 512)
If an Event of Default (other than an Event of Default specified in clause
(e) of the second preceding paragraph) with respect to Debt Securities of any
series at the time Outstanding shall occur and be continuing, either the Trustee
or the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series may, by a notice in writing to the Company (and to the
Trustee if given by the Holders), declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series to be due and payable immediately; provided,
however, that under certain circumstances the Holders of a majority in aggregate
principal amount of Outstanding Debt Securities of that series may rescind or
annul such declaration and its consequences. (Section 502). If an Event of
Default specified in clause (e) of the next preceding paragraph occurs, the
outstanding Debt Securities automatically will become immediately payable
without any declaration or other act on the part of the Trustee or any Holder.
(Section 502). For information as to waiver of defaults, see "Modification and
Waiver" herein.
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to the principal amount of such Original Issue
Discount Securities due on acceleration upon the occurrence of an Event of
Default and the continuation thereof.
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
a continuing Event of Default with respect to Debt Securities of that series and
unless also
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the Holders of at least 25% in aggregate principal amount of the Outstanding
Debt Securities of the same series shall have made written request, and offered
reasonable indemnity to the Trustee, to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of the same series
a direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days. (Section 507). However, such limitations do not
apply to a suit instituted by a Holder of any Debt Security for enforcement of
payment of the principal of (or premium, if any) or interest, if any, on such
Debt Security on or after the respective due dates expressed in such Debt
Security. (Section 508)
Subject to the provisions of the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), the Trustee will be under no obligation to exercise
any of its rights or powers under the Indenture at the request of any of the
Holders of Debt Securities unless they shall have offered to the Trustee
security or indemnity in form and substance reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request. (Section 603)
The Company will be required to furnish to the Trustee annually a statement
by certain officers of the Company as to whether the Company is in default in
the performance and observance of any of the terms, provisions and conditions of
the Indenture. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee, with the consent of the Holders of not less than a majority of
principal amount of each series of the Outstanding Debt Securities of each
series affected by the modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the Holder of each
such Outstanding Debt Security affected thereby: (a) change the Stated Maturity
of the principal of (or premium, if any) or any installment of principal or
interest, if any, on any such Debt Security; (b) reduce the principal amount of
(or premium, if any) or the interest rate, if any, on any such Debt Security or
the principal amount due upon acceleration of an Original Issue Discount
Security; (c) adversely affect any right of repayment at the option of the
Holder of any such Debt Security; (d) reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous obligation; (e) change
the place or currency of payment of principal of (or premium, if any) or the
interest, if any, on any such Debt Security; (f) impair the right to institute
suit for the enforcement of any such payment on or with respect to any such Debt
Security on or after the Stated Maturity (or, in the case of redemption, on or
after the Redemption Date); (g) reduce the percentage of the principal amount of
Outstanding Debt Securities of any series, the consent of the Holders of which
is necessary to modify or amend the Indenture; or (h) modify the foregoing
requirements or reduce the percentage of Outstanding Debt Securities necessary
to waive compliance with certain provisions of the Indenture or for waiver of
certain defaults. (Section 902)
The holders of at least a majority of the aggregate principal amount of the
Outstanding Debt Securities of any series may, on behalf of all Holders of that
series, waive compliance by the Company with certain restrictive provisions of
the Indenture and waive any past default under the Indenture, except a default
in the payment of principal, premium or interest or in the performance of
certain covenants. (Sections 101 and 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities of any series have
given or taken any direction, notice, consent, waiver or other action under the
Indenture as of any date, (i) the principal amount of an Original Issue Discount
Debt Security that will be deemed to be Outstanding will be the amount of the
principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date; (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because
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<PAGE> 14
it is based on an index), the principal amount of such Debt Security deemed to
be Outstanding as of such date will be an amount determined in the manner
prescribed for such Debt Security; and (iii) the principal amount of a Security
denominated in one or more foreign currencies or currency units that will be
deemed to be Outstanding will be the United States dollar equivalent, determined
as of such date in the manner prescribed for such Debt Security, of the
principal amount of such Debt Security (or, in the case of a Debt Security
described in clause (i) or (ii) above, of the amount described in such clause).
Certain Debt Securities, including those for which payment or redemption money
has been deposited or set aside in trust for the Holders and those that have
been fully defeased pursuant to Section 1302, will not be deemed to be
Outstanding. (Section 101). For purposes of the Indenture, the Debt Securities
of any series "Outstanding" thereunder are deemed to exclude persons that
control, are controlled by or are under common control with the Company.
(Section 101).
Except in certain limited circumstances, the Company will be entitled to
set any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver or other action under the Indenture, in the
manner and subject to the limitations provided in the Indenture. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such
shorter period as may be specified by the Company (or the Trustee, if it set the
record date), and may be shortened or lengthened (but not beyond 180 days) from
time to time. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, if such provision is made applicable to the Debt
Securities of any series pursuant to Section 301 of the Indenture (which will be
indicated in the Prospectus Supplement applicable thereto), that the Company may
elect either (A) to defease and be discharged from any and all obligations with
respect to such Debt Securities then outstanding (except for the obligations to
exchange or register the transfer of such Debt Securities, to replace temporary
or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office
or agency in respect of the Debt Securities, and to hold monies for payments in
trust) ("defeasance"), or (B) to be released from its obligations with respect
to such Debt Securities concerning the restrictions described under "Restriction
on Merger and Sale of Assets" (Section 801 ) and any other covenants applicable
to such Debt Securities which are subject to covenant defeasance ("covenant
defeasance"), and the occurrence of an event described and notice thereof in
clauses (c) and (d) under "Events of Default and Notice Thereof" (with respect
to covenants determined, pursuant to Section 301 of the Indenture, to be subject
to covenant defeasance) shall no longer be an Event of Default, in each case,
upon the irrevocable deposit with the Trustee (or other qualifying trustee), in
trust for such purpose, of money, and/or U.S. Government Obligations (as defined
in the Indenture) which through the payment of principal and interest in
accordance with their terms will provide money in an amount sufficient without
reinvestment to pay the principal of (and premium, if any) and interest, if any,
on such Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor. Such a trust may only be
established if, among other things, (i) the Company has delivered to the Trustee
an opinion of counsel (as specified in the Indenture) to the effect that the
Holders of such Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
or covenant defeasance had not occurred, (ii) no Event of Default or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under the Indenture shall have occurred
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and be continuing on the date of such deposit and (iii) certain other customary
conditions precedent are satisfied. In the case of defeasance under clause (A)
above, the opinion of counsel referred to in clause (i) above must refer to and
be based on a ruling of the Internal Revenue Service issued to the Company or
published as a revenue ruling or on a change in applicable Federal income tax
law, in each case after the date of the Indenture. (Article Thirteen)
The Company may exercise the defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of the covenant defeasance option.
If the Company exercises the defeasance option, payment of such Debt Securities
may not be accelerated because of an Event of Default. If the Company exercises
the covenant defeasance option, payment of such Debt Securities may not be
accelerated by reference to the covenants noted under clause (B) above. In the
event the Company omits to comply with the remaining obligations with respect to
such Debt Securities under the Indenture after exercising its covenant
defeasance option and such Debt Securities are declared due and payable because
of the occurrence of any Event of Default, the amount of money and U.S.
Government Obligations on deposit with the Trustee may be insufficient to pay
amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default, because the required deposit
in the defeasance trust is based upon scheduled cash flows, rather than market
values, which will vary depending on prevailing interest rates and other
factors. However, the Company will remain liable in respect of such payments.
(Article Thirteen)
The Prospectus Supplement may further describe the provisions, if any,
applicable to defeasance or covenant defeasance with respect to the Debt
Securities of a particular series.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture with respect to any particular
series of Debt Securities for the full definition of all such terms, as well as
any other terms used herein for which no definition is provided. (Section 101 )
"Attributable Value" in respect of any Sale and Leaseback Transaction
means, as of the time of determination, the lesser of (i) the sale price of the
Principal Property so leased multiplied by a fraction the numerator of which is
the remaining portion of the base term of the lease included in such Sale and
Leaseback Transaction and the denominator of which is the base term of such
lease, and (ii) the total obligation (discounted to present value at the highest
rate of interest specified by the terms of any series of Debt Securities then
Outstanding compounded semi-annually) of the lessee for rental payments (other
than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
base term of the lease included in such Sale and Leaseback Transaction.
"Consolidated Net Tangible Assets" of the Company means the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom (a) all current liabilities (excluding any
indebtedness for money borrowed having a maturity of less than 12 months from
the date of the most recent consolidated balance sheet of the Company but which
by its terms is renewable or extendable beyond 12 months from such date at the
option of the borrower) and (b) all goodwill, trade names, patents, unamortized
debt discount and expense and any other like intangibles, all as set forth on
the most recent consolidated balance sheet of the Company and computed in
accordance with generally accepted accounting principles.
"Indebtedness" of any Person means (without duplication), with respect to
any Person, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) every reimbursement obligation of such Person with
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respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person and (iv) every obligation of the type referred to
in clauses (i) through (iii) of another Person the payment of which such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor, guarantor or otherwise (but only, in the case of clause (iv), to the
extent such Person has guaranteed or is responsible or liable for such
obligations).
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Net Available Proceeds" from any Sale Transaction by any Person means cash
or readily marketable cash equivalents received (including by way of sale or
discounting of a note, installment receivable or other receivable, but excluding
any other consideration received in the form of assumption by the acquiree of
Indebtedness or obligations relating to the properties or assets that are the
subject of such Sale Transaction or received in any other noncash form)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
as a consequence of such Sale Transaction; (ii) all payments made by such Person
or its Subsidiaries on any Indebtedness which is secured in whole or in part by
any such properties and assets in accordance with the terms of any Lien upon or
with respect to any such properties and assets or which must, by the terms of
such Lien, or in order to obtain a necessary consent to such Sale Transaction or
by applicable law, be repaid out of the proceeds from such Sale Transaction; and
(iii) all distributions and other payments made to minority interest holders in
Subsidiaries of such Person or joint ventures as a result of such Sale
Transaction; provided, however, that for purposes of clause (ii) of "Limitations
on Sale and Leaseback Transactions", the amount of Net Available Proceeds to be
applied to any acquisition of Principal Properties or retirement of Debt
Securities or other Indebtedness shall be reduced by an amount equal to the sum
of (A) an amount equal to the redemption price with respect to such Debt
Securities delivered within 180 days after the effective date of such Sale and
Leaseback Transaction to the Trustee for retirement and cancellation and (B) the
principal amount, plus any premium or fee paid in connection with a redemption
in accordance with the terms, of such other Indebtedness voluntarily retired by
the Company within such 180-day period, excluding in each case retirements
pursuant to mandatory sinking fund or prepayment provisions and payments at
maturity.
"Principal Property" means any real property or any permanent improvement
thereon owned by the Company or any of its Subsidiaries including, without
limitation, any office, store, warehouse, manufacturing facility or plant or any
portion thereof, and any equipment located at or comprising a past of any such
property, having a net book value, as of the date of determination, in excess of
1% of Consolidated Net Tangible Assets of the Company.
"Principal Subsidiary" means any Subsidiary which owns a Principal
Property.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any Principal Property that, more than 12
months after (i) the completion of the acquisition, construction, development or
improvement of such Principal Property or (ii) the placing in operation of such
Principal Property or of such Principal Property as so constructed, developed or
improved, has been or is being sold, conveyed, transferred or otherwise disposed
of by such Person to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender on the security of such Principal
Property. The term of such arrangement, as of any date (the "measurement date"),
shall end on the date of the last payment of rent or any other amount due under
such arrangement on or prior to the first date after the measurement date on
which
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such arrangement may be terminated by the lessee, at its sole option without
payment of a penalty. "Sale Transaction" means any such sale, conveyance,
transfer or other disposition.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
PERMANENT GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or more
permanent Global Securities that will be deposited with a Depositary or its
nominee. In such a case, one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of Outstanding Debt Securities of the series to be represented
by such Global Security or Securities. The Prospectus Supplement relating to
such series of Debt Securities will describe the circumstances, if any, under
which beneficial owners of interests in any such permanent Global Security may
exchange such interests for Debt Securities of such series and of like tenor and
principal amount in any authorized form and denomination. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered form,
a permanent Global Security may not be registered for transfer or exchange
except in the circumstances described in the applicable Prospectus Supplement.
(Sections 204 and 305)
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a permanent Global
Security and a description of the Depositary will be contained in the applicable
Prospectus Supplement.
THE TRUSTEE
The Trustee may be deemed to have a conflicting interest and may be
required to resign as Trustee if at the time of a default under the Indenture it
is a creditor of the Company.
GOVERNING LAW
The Indenture and the Debt Securities are governed by and shall be
construed in accordance with the laws of the State of New York. (Section 112)
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters and also
may sell Debt Securities directly to other purchasers or through agents. Such
underwriters may include Goldman, Sachs & Co. and Deutsche Morgan Grenfell, or a
group of underwriters represented by firms including Goldman, Sachs & Co. and
Deutsche Morgan Grenfell. Goldman, Sachs & Co. and Deutsche Morgan Grenfell may
also act as agents.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
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In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act of 1933 (the "Act"). Any such underwriter
or agent will be identified, and any such compensation received from the Company
will be described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Debt Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Debt Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Company. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the Offered Debt Securities shall
not at the time of delivery be prohibited under the laws of the jurisdiction to
which such purchaser is subject. The underwriters and such other agents will not
have any responsibility in respect of the validity or performance of such
contracts.
VALIDITY OF THE DEBT SECURITIES
Unless otherwise specified in the applicable Prospectus Supplement, the
validity of the Offered Debt Securities will be passed upon for the Company by
Coolidge, Wall, Womsley & Lombard, Dayton, Ohio, and for any underwriters or
agents by Sullivan & Cromwell, New York, New York. Sullivan & Cromwell will rely
on the opinion of Coolidge, Wall, Womsley & Lombard as to matters of Ohio law.
EXPERTS
The financial statements and the related financial statement schedules
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 the report of such firm given upon their
authority as experts in accounting and auditing.
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<PAGE> 19
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<PAGE> 20
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated (except for the Securities and
Exchange Commission registration fee) fees and expenses (other than underwriting
discounts and commissions) in connection with the Offering described in this
Registration Statement:
<TABLE>
<S> <C>
Registration fee - Securities and Exchange Commission $ 90,909.09
Rating agency fees $142,500.00
Transfer agent and Trustee fees and expenses $ 40,000.00
Blue sky filing and counsel fees and expenses $ 5,000.00
Accountants' fees and expenses $ 20,000.00
Legal fees and expenses $ 75,000.00
Financial printer fees $ 30,000.00
Total $403,409.09
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 1701.13(E) of the Ohio Revised Code, the Company is
permitted to indemnify any director, officer, employee or agent of the Company
against costs and expenses incurred in connection with any action, suit or
proceeding brought against any such person by reason of his having served the
Company in such capacity, provided that he meets certain "good faith" tests
provided by law, and provided further that, with respect to suits brought on
behalf of the Company, he is not adjudged to be liable for negligence or
misconduct unless the relevant court finds indemnification to be nevertheless
appropriate in view of all the circumstances. The statute also provides that in
the event an officer or director has been successful on the merits in defense of
any such action, suit or proceeding, such officer or director shall be
indemnified by the Company against actual and reasonable expenses in connection
therewith.
Article Ninth of the Company's Amended Articles of Incorporation provides
that, as more specifically set forth in the Company's Consolidated Code of
Regulations, the Company may provide to any director, officer, other employee or
agent of the Company or any person who serves at the request of the Company as a
director, trustee, other employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, the maximum indemnification permitted
under Section 1701.13(E) of the Ohio Revised Code, including amendments thereto,
or any comparable provisions of any future Ohio statute.
Paragraph B of Section 1 of Article IX of the Company's Consolidated Code
of Regulations provides for indemnification of directors, officers and employees
of the Company, and persons who, at the request of the Company, act as a
director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses actually
and reasonably incurred in connection with any action as to which he was or is
or may be made a party by reason of his acting in such capacity, involving a
matter as to which it shall be determined, as provided therein, that he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal matter or
proceeding, in addition, that he had no reasonable cause to believe that his
conduct was unlawful; provided, however, that in the case of an action by or in
the right of the Company to procure a judgment in its favor, no such
indemnification shall be made in respect of any claim, issue or matter as to
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which such person shall have been adjudged liable for negligence or misconduct
in the performance of his duty to the Company unless, and only to the extent
that, the Court of Common Pleas or other court where such action was brought
shall determine such indemnification to be proper.
ITEM 16. EXHIBITS
See Exhibit Index on page 20.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
18
<PAGE> 22
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person 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.
19
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe that
it meets all 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 Dayton, State of Ohio, on November 19, 1996.
THE REYNOLDS AND REYNOLDS COMPANY
By /s/ David R. Holmes
---------------------------------------
David R. Holmes, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David R. Holmes and Adam M. Lutynski, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all future amendments to this
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, 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 and
purposes as he 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
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C>
/s/ David R. Holmes November 19, 1996
- -----------------------------------------------------------------------
David R. Holmes, Chairman of the Board, President
and Chief Executive Officer (Principal Executive Officer)
and Director
/s/ Dale L. Medford November 19, 1996
- -----------------------------------------------------------------------
Dale L. Medford, Vice President, Corporate Finance
and Chief Financial Officer (Principal Financial and Accounting Officer)
and Director
/s/ Joseph N. Bausman November 19, 1996
- -----------------------------------------------------------------------
Joseph N. Bausman, President, Automotive Systems Division and Director
/s/ David E. Fry November 19, 1996
- -----------------------------------------------------------------------
Dr. David E. Fry, Director
/s/ Richard H. Grant, Jr. November 19, 1996
- -----------------------------------------------------------------------
Richard H. Grant, Jr., Chairman of The Steering Committee
/s/ Richard H. Grant, III November 19, 1996
- -----------------------------------------------------------------------
Richard H. Grant, III, Director
/s/ Allan Z. Loren November 19, 1996
- -----------------------------------------------------------------------
Allan Z. Loren, Director
/s/ Robert C. Nevin November 19, 1996
- -----------------------------------------------------------------------
Robert C. Nevin, President, Business Systems Division and Director
/s/ Gayle B. Price, Jr. November 19, 1996
- -----------------------------------------------------------------------
Gayle B. Price, Jr., Director
/s/ Kenneth W. Thiele November 19, 1996
- -----------------------------------------------------------------------
Kenneth W. Thiele, Director
/s/ Martin D. Walker November 19, 1996
- -----------------------------------------------------------------------
Martin D. Walker, Director
</TABLE>
20
<PAGE> 24
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(1) Form of Underwriting Agreement
(4.1) Form of Indenture between the Company and Norwest Bank
Minnesota, National Association as Trustee
(4.2) Form of Debt Securities (included in Exhibit 4.1)
(5) Opinion of Coolidge, Wall, Womsley & Lombard Co., L.P.A.,
regarding legality of securities
(12) Computation of Ratio of Earnings to Fixed Charges
(23)(a) Consent of Coolidge, Wall, Womsley & Lombard (incorporated by
reference to Exhibit 5 hereto)
(23)(b) Consent of Deloitte & Touche LLP, independent auditors
(25) Statement of Eligibility of Trustee under the Trust Indenture
Act of 1939 on Form T-1
21
<PAGE> 1
Exhibit 1
Draft of November 20, 1996
THE REYNOLDS AND REYNOLDS COMPANY
DEBT SECURITIES
-----------------------------------------
UNDERWRITING AGREEMENT
----------------------
November ___, 1996
Goldman, Sachs & Co.,
Deutsche Morgan Grenfell Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
From time to time The Reynolds and Reynolds Company, an Ohio
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such
<PAGE> 2
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-_______) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement,
but including all documents incorporated by reference in the prospectus
contained, to the Representatives for each of the other Underwriters,
have been declared effective by the Commission in such form; no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
each in the form heretofore delivered to the Representatives); and no
stop order suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective but
excluding Form T-1, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any
2
<PAGE> 3
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however,
3
<PAGE> 4
that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development that
reasonably could be expected to involve a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as defined
in Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms,
and the Designated Securities will conform substantially, to the
4
<PAGE> 5
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any material amount of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or Code of Regulations
of the Company or any violation in any material respect of any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture, except such as
have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and, if applicable,
"Description of Notes" or "Description of Debentures", insofar as they
purport to constitute a summary of the terms of the Securities, and
under the captions "Plan of Distribution" and, if applicable,
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair in all material respects;
(j) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or Code of Regulations or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any material amount of its
properties is bound;
(k) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material
5
<PAGE> 6
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(l) The Company and its subsidiaries maintain, or will have in
full force and effect at each Time of Delivery (as defined in Section 4
herein), insurance on their respective assets and operations (issued by
issuers of recognized financial responsibility) of the types and in the
amounts generally deemed adequate for their respective businesses and,
to the best knowledge of the Company, consistent with insurance
coverage maintained by similar companies in similar businesses, all of
which insurance is in full force and effect;
(m) Other than as set forth in the Prospectus, the Company and
its subsidiaries own or have valid, binding and enforceable licenses or
other rights to use any patents, patent licenses, trademarks, trade
names, service marks, service names, copyrights, and other proprietary
intellectual property rights necessary to conduct the business of the
Company and its subsidiaries in the manner in which it has been and is
contemplated to be conducted, without any conflict with the rights of
others, except for such conflicts as would not have, individually or in
the aggregate, a material adverse effect on the financial position or
results of operations of the Company and its subsidiaries;
(n) Other than as set forth in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, or
any rule, regulation, decision or order of any governmental agency or
body or any court relating to the use, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would have, individually or in the
aggregate, a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries taken as a whole; and neither the Company nor any
of its subsidiaries is aware of any pending investigation which could
reasonably be expected to lead to such a claim;
(o) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
6
<PAGE> 7
(p) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes; and
(q) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company or, if set
forth in the Pricing Agreement, wire transfer to the account specified by the
Company, in the funds specified in such Pricing Agreement, all in the manner and
at the place and time and date specified in such Pricing Agreement or at such
other place and time and date as the Representatives and the Company may agree
upon in writing, such time and date being herein called the "Time of Delivery"
for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements
7
<PAGE> 8
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to
advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of any Pricing Agreement and from
time to time, to furnish the Underwriters with copies of the Prospectus
as amended or supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such
8
<PAGE> 9
compliance (as used herein, "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or
obligated by law or executive order to close);
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and
9
<PAGE> 10
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery
for such Designated Securities, with respect to the organization of the
Company, the validity of the Designated Securities being delivered at
such Time of Delivery, the Registration Statement and the Prospectus as
amended or supplemented, as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital
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<PAGE> 11
stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated Securities and the
Indenture conform substantially to the descriptions thereof in the
Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company is a party or by which the Company is bound or to
which any material amount of the property or assets of the Company is
subject, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or Code of Regulations
of the Company or any violation in any material respect of any statute
or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties;
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<PAGE> 12
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Designated
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or such Pricing Agreement or the
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(ix) Neither the Company nor any of its subsidiaries is in
violation of its Code of Regulations or Certificate of Incorporation or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or any of its properties may be bound;
(x) The statements set forth in the Prospectus under the
captions "Description of Debt Securities", and, if applicable,
"Description of Notes" or "Description of Debentures", insofar as they
purport to constitute a summary of the terms of the Stock, and under
the captions "Plan of Distribution" and, if applicable, "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair in all
material respects;
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents, when
they became effective or were so filed, as the case may be, contained,
in the case of a registration statement which became effective under
the Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents
which were filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were
so filed, not misleading; and
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<PAGE> 13
(xiii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Securities (other than the financial statements and the
notes thereto and related schedules and other financial data therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; although they
do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (x) of this Section 7(c), they have no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and the notes thereto and
related schedules and other financial data therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and the notes
thereto and related schedules and other financial data therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of
the Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements and the notes thereto and related
schedules and other financial data therein, as to which such counsel
need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described
in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
In giving such opinion, such counsel may state that, to the extent that
New York law is relevant to such opinion, such counsel has relied upon
the opinion of counsel for the Underwriters;
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated
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<PAGE> 14
Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter, dated the
effective date of the Registration Statement or the date of the most
recent report filed with the Commission containing financial statements
and incorporated by reference in the Registration Statement, if the
date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to the effect set forth in
Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, and (ii) since the respective
dates as of which information is given in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, the effect of which, in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as first amended
or supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred stock;
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<PAGE> 15
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may
reasonably request; and
(i) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of Prospectuses on
the New York Business Day next succeeding the date of any Pricing
Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any
15
<PAGE> 16
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
16
<PAGE> 17
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
17
<PAGE> 18
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Securities
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not
joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and,
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<PAGE> 19
in addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the Designated
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly
19
<PAGE> 20
or by such of the Representatives, if any, as may be designated for such purpose
in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
20
<PAGE> 21
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
The Reynolds and Reynolds Company
By:........................................
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Deutsche Morgan Grenfell Inc.
By:...............................................
(Goldman, Sachs & Co.)
21
<PAGE> 22
ANNEX I
PRICING AGREEMENT
-----------------
Goldman, Sachs & Co.,
Deutsche Morgan Grenfell Inc.,
Names of Co-Representative(s),
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
, 19..
Ladies and Gentlemen:
The Reynolds and Reynolds Company, an Ohio corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated November ___, 1996 (the "Underwriting Agreement"),
between the Company on the one hand and Goldman, Sachs & Co. on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to
<PAGE> 23
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the time and place and at the purchase
price to the Underwriters set forth in Schedule II hereto, the principal amount
of Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ____________ (one for the Company and each of the
Representatives plus one for each counsel) counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
The Reynolds and Reynolds Company
By:........................................
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Deutsche Morgan Grenfell Inc.
By:...............................................
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
2
<PAGE> 24
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
<S> <C> <C>
Goldman, Sachs & Co. $
Deutsche Morgan Grenfell Inc.
Name(s) of Co-Representative(s)
Names of other Underwriters _____________
Total $
</TABLE>
3
<PAGE> 25
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization[, if
any,] from to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery at the office of
[The Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House (next day) funds
[Federal (same day) funds [by wire transfer]]
TIME OF DELIVERY:
a.m. (New York City time), , 19
INDENTURE:
Indenture dated , 19 , between the Company
and , as Trustee
4
<PAGE> 26
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof, [on or
after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %, and
if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- -----
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$ ] principal amount of Designated Securities
on in each of the years through
5
<PAGE> 27
at 100% of their principal amount plus accrued interest[,
together with [cumulative] [noncumulative] redemptions at the option of
the Company to retire an additional [$ ] principal amount of
Designated Securities in the years through at 100%
of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on ,
and to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year maturities
as of the [insert date 15 days prior to maturity date] prior to such
[insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average
rate for -year [month][securities][certificates of deposit]
issued by and [insert names of banks].] [and the annual
interest rate [thereafter] [from through ] will be the
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of Interest
Differential (the excess, if any, of (i) the then current weekly
average per annum secondary market yield for -month certificates of
deposit over (ii) the then current interest yield equivalent of the
weekly average per annum market discount rate for -month Treasury
bills); [from and thereafter the rate will be the then
current interest yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
6
<PAGE> 28
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
Other Terms:
7
<PAGE> 29
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if
applicable, financial forecasts and/or pro forma financial information)
audited by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules
and regulations thereunder; and, if applicable, they have made a review
in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, copies of which
have been furnished to the representative or representatives of the
Underwriters (the "Representatives"), such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives, and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which are attached hereto;
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or
<PAGE> 30
incorporated by reference in Item 6 of the Company's Annual Report on
Form 10-K for the most recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports
on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference
2
<PAGE> 31
in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
3
<PAGE> 32
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
4
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THE REYNOLDS AND REYNOLDS COMPANY
TO
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
--------------
INDENTURE
Dated as of ________ ____, 1996
--------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
The Reynolds and Reynolds Company
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C> <C> <C>
section 310(a)(1) ....................................................... 609
(a) (2) ....................................................... 609
(a) (3) ....................................................... Not Applicable
(a) (4) ....................................................... Not Applicable
(b) ....................................................... 608
610
section 311(a) ........................................................ 613
(b) ........................................................ 613
section 312(a) ........................................................ 701
702
(b) ........................................................ 702
(c) ........................................................ 702
section 313(a) ........................................................ 703
(b) ........................................................ 703
(c) ........................................................ 703
(d) ........................................................ 703
section 314(a) ........................................................ 704
(a) (4) ........................................................ 101
1004
(b) ........................................................ Not Applicable
(c) (1) ........................................................ 102
(c) (2) ........................................................ 102
(c) (3) ........................................................ Not Applicable
(d) ........................................................ Not Applicable
(e) ........................................................ 102
section 315(a) ........................................................ 601
(b) ........................................................ 602
(c) ........................................................ 601
(d) ........................................................ 601
(e) ........................................................ 514
section 316(a) ........................................................ 101
(a) (1)(A) ........................................................ 502
512
(a) (1)(B) ........................................................ 513
(a) (2) ........................................................ Not Applicable
(b) ........................................................ 508
(c) ........................................................ 104
section 317(a) (1) ........................................................ 503
(a) (2) ........................................................ 504
(b) ........................................................ 1003
section 318(a) ........................................................ 107
<FN>
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
----------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
RECITALS OF THE COMPANY................................................................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION....................................... 1
SECTION 101. Definitions.............................................................................. 1
Act................................................................................. 2
Affiliate; control.................................................................. 2
Attributable Value.................................................................. 2
Authenticating Agent................................................................ 2
Board of Directors.................................................................. 2
Board Resolution.................................................................... 2
Business Day........................................................................ 2
Commission.......................................................................... 3
Company............................................................................. 3
Company Request; Company Order...................................................... 3
Consolidated Net Tangible Assets.................................................... 3
Corporate Trust Office.............................................................. 3
corporation......................................................................... 3
Covenant Defeasance................................................................. 3
Defaulted Interest.................................................................. 3
Defeasance.......................................................................... 3
Depositary.......................................................................... 3
Event of Default.................................................................... 3
Exchange Act........................................................................ 3
Expiration Date..................................................................... 4
Global Security..................................................................... 4
Holder.............................................................................. 4
Indebtedness........................................................................ 4
Indenture........................................................................... 4
interest............................................................................ 4
Interest Payment Date............................................................... 4
Investment Company Act.............................................................. 4
Lien................................................................................ 4
Maturity............................................................................ 4
Net Available Proceeds.............................................................. 5
Notice of Default................................................................... 5
<FN>
- ----------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Officers' Certificate............................................................... 5
Opinion of Counsel.................................................................. 5
Original Issue Discount Security.................................................... 5
Outstanding......................................................................... 6
Paying Agent........................................................................ 7
Person.............................................................................. 7
Place of Payment.................................................................... 7
Predecessor Security................................................................ 7
Principal Property.................................................................. 7
Principal Subsidiary................................................................. 7
Redemption Date..................................................................... 7
Redemption Price.................................................................... 7
Regular Record Date................................................................. 7
Responsible Officer................................................................. 7
Sale and Lease-Back Transaction..................................................... 8
Securities.......................................................................... 8
Securities Act...................................................................... 8
Security Register and Security Registrar............................................ 8
Special Record Date................................................................. 8
Stated Maturity..................................................................... 8
Subsidiary.......................................................................... 8
Trust Indenture Act................................................................. 8
Trustee............................................................................. 9
U.S. Government Obligation.......................................................... 9
Vice President...................................................................... 9
SECTION 102. Compliance Certificates and Opinions..................................................... 9
SECTION 103. Form of Documents Delivered to Trustee................................................... 9
SECTION 104. Acts of Holders; Record Dates............................................................ 10
SECTION 105. Notices, Etc., to Trustee and Company.................................................... 12
SECTION 106. Notice to Holders; Waiver................................................................ 12
SECTION 107. Conflict with Trust Indenture Act........................................................ 13
SECTION 108. Effect of Headings and Table of Contents................................................. 13
SECTION 109. Successors and Assigns................................................................... 13
SECTION 110. Separability Clause...................................................................... 14
SECTION 111. Benefits of Indenture.................................................................... 14
SECTION 112. Governing Law............................................................................ 14
SECTION 113. Legal Holidays........................................................................... 14
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
ARTICLE TWO
SECURITY FORMS
<S> <C> <C>
SECTION 201. Forms Generally.......................................................................... 14
SECTION 202. Form of Face of Security................................................................. 15
SECTION 203. Form of Reverse of Security.............................................................. 17
SECTION 204. Form of Legend for Global Securities..................................................... 21
SECTION 205. Form of Trustee's Certificate of Authentication.......................................... 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..................................................... 21
SECTION 302. Denominations............................................................................ 24
SECTION 303. Execution, Authentication, Delivery and Dating........................................... 24
SECTION 304. Temporary Securities..................................................................... 26
SECTION 305. Registration, Registration of Transfer and Exchange...................................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................................... 28
SECTION 307. Payment of Interest; Interest Rights Preserved........................................... 29
SECTION 308. Persons Deemed Owners.................................................................... 30
SECTION 309. Cancellation............................................................................. 30
SECTION 310. Computation of Interest.................................................................. 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.................................................. 31
SECTION 402. Application of Trust Money............................................................... 32
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default........................................................................ 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................................... 34
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.............................................................................. 35
SECTION 504. Trustee May File Proofs of Claim......................................................... 36
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities......................................................................... 36
SECTION 506. Application of Money Collected........................................................... 36
SECTION 507. Limitation on Suits...................................................................... 37
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................................ 38
SECTION 509. Restoration of Rights and Remedies....................................................... 38
SECTION 510. Rights and Remedies Cumulative........................................................... 38
SECTION 511. Delay or Omission Not Waiver............................................................. 38
SECTION 512. Control by Holders....................................................................... 39
SECTION 513. Waiver of Past Defaults.................................................................. 39
SECTION 514. Undertaking for Costs.................................................................... 39
SECTION 515. Waiver of Usury, Stay or Extension Laws.................................................. 40
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities...................................................... 40
SECTION 602. Notice of Defaults....................................................................... 40
SECTION 603. Certain Rights of Trustee................................................................ 41
SECTION 604. Not Responsible for Recitals or Issuance of Securities................................... 42
SECTION 605. May Hold Securities...................................................................... 42
SECTION 606. Money Held in Trust...................................................................... 42
SECTION 607. Compensation and Reimbursement........................................................... 42
SECTION 608. Conflicting Interests.................................................................... 43
SECTION 609. Corporate Trustee Required; Eligibility.................................................. 43
SECTION 610. Resignation and Removal; Appointment of Successor........................................ 43
SECTION 611. Acceptance of Appointment by Successor................................................... 45
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business........................................................................... 46
SECTION 613. Preferential Collection of Claims Against Company........................................ 46
SECTION 614. Appointment of Authenticating Agent...................................................... 46
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders............................................................................ 48
SECTION 702. Preservation of Information; Communications to Holders................................... 48
SECTION 703. Reports by Trustee....................................................................... 49
</TABLE>
-iv-
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 704. Reports by Company....................................................................... 49
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..................................... 49
SECTION 802. Successor Substituted.................................................................... 50
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders....................................... 51
SECTION 902. Supplemental Indentures With Consent of Holders.......................................... 52
SECTION 903. Execution of Supplemental Indentures..................................................... 53
SECTION 904. Effect of Supplemental Indentures........................................................ 53
SECTION 905. Conformity with Trust Indenture Act...................................................... 53
SECTION 906. Reference in Securities to Supplemental Indentures....................................... 54
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.............................................. 54
SECTION 1002. Maintenance of Office or Agency......................................................... 54
SECTION 1003. Money for Securities Payments to be Held in Trust....................................... 54
SECTION 1004. Statement by Officers as to Default..................................................... 56
SECTION 1005. Existence............................................................................... 56
SECTION 1006. Maintenance of Properties............................................................... 56
SECTION 1007. Payment of Taxes and Other Claims....................................................... 56
SECTION 1008. Limitation on Liens..................................................................... 57
SECTION 1009. Limitation on Sale and Lease-Back Transactions.......................................... 58
SECTION 1010. Waiver of Certain Covenants............................................................. 59
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................................................ 59
SECTION 1102. Election to Redeem; Notice to Trustee................................................... 60
</TABLE>
-v-
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 1103. Selection by Trustee of Securities to be Redeemed....................................... 60
SECTION 1104. Notice of Redemption.................................................................... 61
SECTION 1105. Deposit of Redemption Price............................................................. 61
SECTION 1106. Securities Payable on Redemption Date................................................... 62
SECTION 1107. Securities Redeemed in Part............................................................. 62
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................................................ 62
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities................................... 63
SECTION 1203. Redemption of Securities for Sinking Fund............................................... 63
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance......................................................................... 64
SECTION 1302. Defeasance and Discharge................................................................ 64
SECTION 1303. Covenant Defeasance..................................................................... 64
SECTION 1304. Conditions to Defeasance or Covenant Defeasance......................................... 65
SECTION 1305. Deposited Money and U.S. Government Obligations to
be Held in Trust; Miscellaneous Provisions........................................ 67
SECTION 1306. Reinstatement........................................................................... 67
</TABLE>
-vi-
<PAGE> 9
INDENTURE, dated as of ________ ___, 1996, between The Reynolds and
Reynolds Company, a corporation duly organized and existing under the laws of
the State of Ohio (herein called the "Company"), having its principal office at
115 South Ludlow Street, Dayton, Ohio 45402, and Norwest Bank Minnesota,
National Association, a national banking association duly organized and existing
under the laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually 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:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
<PAGE> 10
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) 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.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Value" in respect of any Sale and Lease-Back Transaction
means, as of the time of determination, the lesser of (i) the sale price of the
Principal Property so leased multiplied by a fraction the numerator of which is
the remaining portion of the base term of the lease included in such Sale and
Lease-Back Transaction and the denominator of which is the base term of such
lease, and (ii) the total obligation (discounted to present value at the highest
rate of interest specified by the terms of any series of Securities then
Outstanding compounded semi-annually) of the lessee for rental payments (other
than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
base term of the lease included in such Sale and Lease-Back Transaction.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or the Federal Reserve Banks are
authorized or obligated by law or executive order to close.
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"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument 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 its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" of the Company means the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom (a) all current liabilities (excluding any
indebtedness for money borrowed having a maturity of less than 12 months from
the date of the most recent consolidated balance sheet of the Company but which
by its terms is renewable or extendable beyond 12 months from such date at the
option of the borrower) and(b) all goodwill, tradenames, patents, unamortized
debt discount and expense and any other like intangibles, all as set forth on
the most recent consolidated balance sheet of the Company and computed in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee in
Minneapolis, Minnesota at which at any particular time its corporate trust
business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
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"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person means (without duplication), with respect to
any Person, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person and (iv) every obligation of the type referred to in
clauses (i) through (iii) of another Person the payment of which such Person has
guaranteed or is responsible or liable for, directly or indirectly, as obligor,
guarantor or otherwise (but only, in the case of clause (iv), to the extent such
Person has guaranteed or is responsible or liable for such obligations).
"Indenture" means this instrument as originally executed 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
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"Net Available Proceeds" from any Sale Transaction by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of Indebtedness or obligations relating to the properties or assets
that are the subject of such Sale Transaction or received in any other noncash
form) therefrom by such Person, net of (1) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
as a consequence of such Sale Transaction; (ii) all payments made by such Person
or its Subsidiaries on any Indebtedness which is secured in whole or in part by
any such properties and assets in accordance with the terms of any Lien upon or
with respect to any such properties and assets or which must, by the terms of
such Lien, or in order to obtain a necessary consent to such Sale Transaction or
by applicable law, be repaid out of the proceeds from such Sale Transaction; and
(iii) all distributions and other payments made to minority interest holders in
Subsidiaries of such Person or joint ventures as a result of such Sale
Transaction; PROVIDED, HOWEVER, that for purposes of clause (y) of Section 1009
hereof the amount of Net Available Proceeds to be applied to any acquisition of
Principal Properties or retirement of Securities or other Indebtedness shall be
reduced by an amount equal to the sum of (A) an amount equal to the redemption
price with respect to such Securities delivered within 180 days after the
effective date of such Sales and Lease-Back Transaction to the Trustee for
retirement and cancellation and (B) the principal amount, plus any premium or
fee paid in connection with a redemption in accordance with the terms, of such
other Indebtedness voluntarily retired by the Company within such 180-day
period, excluding in each case retirements pursuant to mandatory sinking fund or
prepayment provisions and payments at maturity.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
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"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the
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<PAGE> 15
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, company, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any real property or any permanent improvement
thereon owned by the Company or any of its Subsidiaries including, without
limitation, any office, store, warehouse, manufacturing facility or plant or any
portion thereof, and any equipment located at or comprising a part of any such
property, having a net book value, as of the date of determination, in excess of
1% of Consolidated Net Tangible Assets of the Company.
"Principal Subsidiary" means any Subsidiary which owns any Principal
Property.
"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.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
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<PAGE> 16
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Sale and Lease-Back Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any Principal Property that, more than 12
months after (i) the completion of the acquisition, construction, development or
improvement of such Principal Property or (ii) the placing in operation of such
Principal Property or of such Principal Property as so constructed, developed or
improved, has been or is being sold, conveyed, transferred or otherwise disposed
of by such Person to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender on the security of such Principal
Property. The term of such arrangement, as of any date (the "measurement date"),
shall end on the date of the last payment of rent or any other amount due under
such arrangement on or prior to the first date after the measurement date on
which such arrangement may be terminated by the lessee, at its sole option,
without payment of a penalty. "Sale Transaction" means any such sale,
conveyance, transfer or other disposition.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
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"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided for
in Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by,
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or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made 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 agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
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The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any
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<PAGE> 20
Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department.
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
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 law of the State of New York.
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 of any Security 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
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced
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<PAGE> 23
by their execution thereof. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
The Reynolds and Reynolds Company
..........................................................................
No. ......... $ ........
The Reynolds and Reynolds Company, a corporation duly organized and
existing under the laws of Ohio (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to .....................................
.........., or registered assigns, the principal sum of .......................
............... Dollars on ........................................... [if the
Security is to bear interest prior to Maturity, insert -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on ...........
and ............ in each year, commencing ........., at the rate of ....% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert -- , provided that any principal and premium, and any such
instalment of interest, which is overdue shall bear interest at the rate of
...% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid
or made available for payment, and such interest shall be payable on demand].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ....... or ....... (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful
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<PAGE> 24
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ............, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE REYNOLDS AND REYNOLDS COMPANY
By................................
Attest:
...................................
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<PAGE> 25
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ............... , 1996 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and Norwest Bank Minnesota, National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert -- , limited in aggregate principal
amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., ....], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the
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<PAGE> 26
year .... and ending with the year .... through operation of the sinking fund
for this series at the Redemption Prices for redemption through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below, and (2) at any time [if applicable, insert -- on or after
............], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning ............ of the
years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ------------ -------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
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<PAGE> 27
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority of principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
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<PAGE> 28
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 90
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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<PAGE> 29
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Norwest Bank Minnesota, National Association,
As 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. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
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<PAGE> 30
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on
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<PAGE> 31
any Securities of the series shall be payable and the manner of determining
the equivalent thereof in the currency of the United States of America for
any purpose, including for purposes of the definition of "Outstanding" in
Section 101; provided, however, that prior to the issuance of any such
Securities, the Company shall have obtained the written consent of the
Trustee, which consent may be withheld in the sole discretion of the
Trustee, to the currency, currencies or currency units so established;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies
or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such amount
shall be determined provided, however, that prior to the issuance of any such
Securities, the Company shall have obtained the written consent of the
Trustee, which consent may be withheld in the sole discretion of the
Trustee, to the currency, currencies or currency units so established;
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 204 and any circumstances
in addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 305 in which any such Global Security may be exchanged
in whole or in part for Securities registered, and any transfer of such
Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(17) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
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<PAGE> 32
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(19) any restriction or condition on the transferability of the
Securities; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President, one of its Vice
Presidents, its Treasurer or an Assistant Treasurer, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and
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<PAGE> 33
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
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<PAGE> 34
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
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 and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such
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office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such
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circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
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 of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the
manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the
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requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any
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Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 90 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 10% in principal amount of
the Outstanding Securities of that series a written notice
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specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series), or under any
mortgage, indenture or instrument (including this Indenture) under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company, having an aggregate principal
amount outstanding of at least $10 million, whether such indebtedness now
exists or shall hereafter be created, which default (A) shall constitute a
failure to pay any portion of the principal of such indebtedness when due and
payable after the expiration of any applicable grace period with respect
thereto or (B) shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without, in the case of Clause (A), such indebtedness
having been discharged or without, in the case of Clause (B), such
indebtedness having been discharged or such acceleration having been
rescinded or annulled, in each such case within a period of 10 days after
there shall have been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Company to cause
such indebtedness to be discharged or cause such acceleration to be rescinded
or annulled, as the case may be, and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions of
Sections 601 and 602, the Trustee shall not be deemed to have knowledge of
such default unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the holder of
any such indebtedness or from the trustee under any such mortgage, indenture
or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
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 of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company 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 an involuntary case or proceeding
under any applicable Federal or State bankruptcy,
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insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of any
such action; or
(8) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable PROVIDED, HOWEVER, that the Holders of a majority in
aggregate principal amount of Securities of such series then Outstanding may
rescind or annul such declaration and its consequences by objecting in writing
within 30 days of such declaration. If an Event of Default specified in Section
501(6) or 501 (7) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if any Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or other
action on the part of the Trustee or any Holder, become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities of that series,
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(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this
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Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of
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the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated 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 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
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SECTION 515. Waiver of Usury, 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 usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, 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. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default if known to the Trustee as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) 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;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(4) 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;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(7) 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 or correspondent banks appointed by the Trustee (at the expense of
the Company) 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.
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SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. 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 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder,
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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.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in Minneapolis, Minnesota. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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.
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If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of 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 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor
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Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
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Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon 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 of America, any State thereof
or the District of Columbia,
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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.
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 and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Norwest Bank Minnesota, National Association,
As Trustee
By..........................................,
As Authenticating Agent
By...........................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than January 31 and July 31 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of the preceding
January 15 or July 15, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the
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Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company
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or convey, transfer or lease its properties and assets substantially as an
entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or
prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter,
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except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default
are to be for the benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
1008 or otherwise; or
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(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (9) shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or adversely affect any right of repayment at the option of a
Holder of any Security, or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation, or change any
Place of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
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(3) modify any of the provisions of this Section, Section 513 or Section
1010, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1010, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
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SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough
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of Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property
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of the Company or any Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1008. Limitation on Liens.
The Company will not, and will not permit any Principal Subsidiary to,
create or suffer to exist any Lien to secure any Indebtedness of the Company or
any Subsidiary upon any Principal Property, or upon shares of capital stock or
evidences of Indebtedness issued by any Principal Subsidiary and owned by the
Company or any Principal Subsidiary, whether owned at the date of this Indenture
or thereafter acquired, without making, or causing such Principal Subsidiary to
make, effective provision to secure all of the Securities from time to time
Outstanding by such Lien, equally and ratably with any and all other
Indebtedness thereby secured, so long as such Indebtedness shall be so secured.
The foregoing restrictions shall not apply to indebtedness secured by
Liens existing on the date of this Indenture or to any of the following:
(1) Liens on any property existing at the time of the acquisition
thereof;
(2) Liens on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Principal
Subsidiary or at the time of a sale, lease or other disposition of the
properties of such corporation (or a division thereof) as an entirety or
substantially as an entirety to the Company or a Principal Subsidiary,
provided that such Lien as a result of such merger, consolidation, sale,
lease or other disposition is not extended to property owned by the Company
or such Principal Subsidiary immediately prior thereto;
(3) Liens on property of a corporation existing at the time such
corporation becomes a Principal Subsidiary;
(4) Liens securing indebtedness of a Principal Subsidiary to the
Company or to another Principal Subsidiary;
(5) Liens to secure all or part of the cost of acquisition, construction,
development or improvement of the underlying property, or to secure
Indebtedness incurred to provide funds for any such purpose, provided that
the commitment of the creditor to extend the credit secured by any such Lien
shall have been obtained not later than twenty-four months after the later of
(a) the completion of the acquisition, construction, development or
improvement of such property or (b) the placing in operation of such property
or of such property as so constructed, developed or improved;
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(6) Liens on any property created, assumed or otherwise brought into
existence in contemplation of the sale or other disposition of the underlying
property, whether directly or indirectly, by way of share disposition or
otherwise; provided that the Company must have disposed of such property
within 180 days from the creation of such Liens and any Indebtedness secured
by such Liens shall be without recourse to the Company or any Subsidiary;
(7) Liens in favor of the United States of America or any State thereof,
or any department, agency or instrumentality or political subdivision
thereof, to secure partial, progress, advance or other payments;
(8) Liens to secure Indebtedness of joint ventures in which the Company or
a Principal Subsidiary has an interest, to the extent such Liens are on
property or assets of, or equity interests in, such joint ventures; and
(9) any extension, renewal or replacement or refunding of any Lien
existing on the date of the Indenture or referred to in clauses (1) to (3) or
(5); provided, however, that the principal amount of indebtedness secured
thereby and not otherwise authorized by clauses (1) to (3) or (5), shall not
exceed the principal amount of indebtedness, plus any premium or fee payable
in connection with any such extension, renewal, replacement, or refunding, so
secured at the time of such extension, renewal, replacement or refunding.
Notwithstanding the foregoing, the Company and its Principal Subsidiaries
may create or suffer to exist Liens which would otherwise be prohibited by this
Section 1008 securing Indebtedness in an aggregate amount which, together with
all outstanding Attributable Value of all Sale and Lease-Back Transactions
permitted by the last paragraph of Section 1009 and all Indebtedness secured by
Liens permitted pursuant to this paragraph, does not exceed 10% of Consolidated
Net Tangible Assets of the Company.
SECTION 1009. Limitation on Sale and Lease-Back Transactions.
(a) The Company will not, nor will it permit any Principal Subsidiary to,
enter into any Sale and Lease-Back Transaction with respect to any Principal
Property (except for (x) a transaction providing for a lease for a term,
including any renewal thereof, of not more than three years, by the end of which
term it is intended that the use of such Principal Property by the lessee will
be discontinued, (y) a transaction between the Company and a Principal
Subsidiary or between Principal Subsidiaries, (z) a transaction between the
Company or a Principal Subsidiary and a joint venture in which the Company or a
Principal Subsidiary has an interest, unless either (i) the Company or such
Principal Subsidiary would be entitled pursuant to Section 1008 to issue, assume
or guarantee Indebtedness secured by a Lien on such Principal Property without
equally and ratably securing the Securities or (ii) the Company or such
Principal Subsidiary shall apply or cause to be applied within 180 days after
the effective date of such Sale and Lease-Back Transaction, an amount equal to
the Net Available Proceeds therefrom to (A)
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the acquisition of one or more Principal Properties or (B) to the retirement of
Securities or the repayment of other Indebtedness of the Company or a Principal
Subsidiary (other than such Indebtedness owned by the Company or a Principal
Subsidiary) which, in the case of such Indebtedness of the Company, is not
subordinate and junior in right of payment to the prior payment of the
Securities; provided, however, that any such retirement of Securities shall be
in accordance with Article Eleven and any other terms and provisions of this
Indenture and the Securities applicable to optional redemption of Securities.
Notwithstanding the foregoing, the Company or any Principal Subsidiary may
enter into a Sale and Lease-Back Transaction which would otherwise be prohibited
by this Section 1009 to the extent that the Attributable Value thereof, together
with all indebtedness secured by Liens permitted pursuant to the last paragraph
of Section 1008 and the Attributable Value of all other Sale and Lease-Back
Transactions permitted by this paragraph, does not exceed 10% of Consolidated
Net Tangible Assets of the Company.
SECTION 1010. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(18),
901(2) or 901(7) for the benefit of the Holders of such series or in any of
Sections 1006 to 1009, inclusive, if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
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 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the identification (and,
in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all
the Outstanding Securities of any series consisting of a single Security are
to be redeemed, the principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein
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referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of such
Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 through 1009, inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Sections 501(4)
(with respect to any of Section 801(3), Sections 1006 through 1009,
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<PAGE> 73
inclusive, and any such covenants provided pursuant to Section 301(18), 901(2)
or 901(7)), 501(5) and 501(8) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 501(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of
and any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America for
the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and held by such bank for
the account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required
by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S.
-65-
<PAGE> 74
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to
be effected with respect to such Securities and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(6) and (7), at
any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
-66-
<PAGE> 75
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such
-67-
<PAGE> 76
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.
-68-
<PAGE> 77
-----------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE REYNOLDS AND REYNOLDS COMPANY
By.....................................
Attest:
......................................
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By.....................................
Attest:
......................................
-69-
<PAGE> 78
STATE OF OHIO )
) 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/she is .................... of The Reynolds and Reynolds
Company, one of the corporations described in and which executed the foregoing
instrument; that he/she 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/she signed
his/her name thereto by like authority.
.............................
STATE OF MINNESOTA )
) 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/she is a Trust Officer of Norwest Bank Minnesota, National
Association, one of the corporations described in and which executed the
foregoing instrument; that he/she 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/she
signed his/her name thereto by like authority.
.............................
-70-
<PAGE> 1
Exhibit 5
November 21, 1996
The Reynolds and Reynolds Company
115 South Ludlow Street
Dayton, OH 45402
Gentlemen:
As counsel for The Reynolds and Reynolds Company (the "Company"), we are
familiar with the Amended Articles of Incorporation of the Company under the
laws of the State of Ohio, its Consolidated Code of Regulations, and the
respective actions taken by the Shareholders and by the Board of Directors in
connection therewith, and all subsequent corporate proceedings with respect
thereto.
In addition, we are familiar with the preparation of the Form S-3 Registration
Statement covering up to $300 million of the Company's debt securities (the
"Debt Securities") currently being filed with the Securities and Exchange
Commission.
We are also acquainted with the business activities of the Company and have
examined corporate minute books, records and such other documents as we have
deemed necessary in order to render to you the following opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly organized and is a validly existing
corporation in good standing under the laws of the State of Ohio.
2. As of November 21, 1996, the Debt Securities have been duly authorized
and when issued and delivered will have been duly executed,
authenticated, issued and delivered and will constitute the valid and
legally binding obligation of the Company entitled to the benefits
provided by the Indenture as described in the aforementioned
Registration Statement.
<PAGE> 2
The Reynolds and Reynolds Company
November 21, 1996
Page 2
We hereby consent to the references to our firm in the Registration Statement
on Form S-3 and in the Prospectus constituting a part thereof, and to the use
of this opinion as an exhibit to such Registration Statement.
Very truly yours,
COOLIDGE, WALL, WOMSLEY & LOMBARD
<PAGE> 1
EXHIBIT 12
THE REYNOLDS AND REYNOLDS COMPANY
COMPUTATION OF RATIO OF
EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
09-30 09-30 09-30 09-30 09-30 09-30
EARNINGS 1991 1992 1993 1994 1995 1996
- -------- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
INCOME BEFORE INCOME TAXES 41,684 64,436 89,284 97,322 136,755 162,243
GROSS FIXED CHARGES 20,035 17,107 14,530 15,096 17,410 23,353
LESS: CAPITALIZED INTEREST (14) (14) (29) (66) (105) (231)
------ ------ ------- ------- ------- -------
NET FIXED CHARGES 20,021 17,093 14,501 15,030 17,305 23,122
EARNINGS 61,705 81,529 103,785 112,352 154,060 185,365
====== ====== ======= ======= ======= =======
FIXED CHARGES
- -------------
INTEREST EXPENSE - INFO. SYSTEMS 9,O28 5,106 3,690 3,820 3,779 5,778
INTEREST EXPENSE - FIN'L. SERVICES 6,199 6,952 5,550 5,036 7,191 9,072
RENT EXPENSE - SPACE & EQUIPMENT 10,212 11,356 11,894 13,287 12,961 18,065
RENT EXPENSE - AUTOMOBILES 4,170 3,748 3,889 5,234 6,045 6,751
------ ------ ------- ------- ------- -------
TOTAL RENT 14,382 15,104 15,783 18,521 19,006 24,816
1/3 OF RENT EXPENSE 4,794 5,035 5,261 6,174 6,335 8,272
CAPITALIZED INTEREST 14 14 29 66 105 231
------ ------ ------- ------- ------- -------
TOTAL FIXED CHARGES 20,035 17,107 14,530 15,096 17,410 23,353
====== ====== ======= ======= ======= =======
RATIO 3.08 4.77 7.14 7.44 8.85 7.94
====== ====== ======= ======= ======= =======
</TABLE>
<PAGE> 1
EXHIBIT 23(b)
INDEPENDENT AUDITORS'CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Reynolds and Reynolds Company on Form S-3 of our report dated November 11,
1996 (November 19, 1996 as to Note 13) appearing in the Annual Report on Form
10-K of The Reynolds and Reynolds Company for the year ended September 30, 1996,
and to the reference to us under the heading "Experts" in the Prospoctus, which
is part of such Registration Statement.
DELOITTE & TOUCHE LLP
Dayton, Ohio
November 19, 1996
<PAGE> 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)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
-----------------------------
THE REYNOLDS AND REYNOLDS COMPANY
(Exact name of obligor as specified in its charter)
OHIO 31-0421120
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
115 SOUTH LUDLOW STREET
DAYTON, OHIO 45402
(Address of principal executive offices) (Zip code)
-----------------------------
DEBT SECURITIES
(Title of the indenture securities)
================================================================================
<PAGE> 2
Item 1. GENERAL INFORMATION. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-15 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of
this Statement of Eligibility. Norwest Bank
incorporates by reference into this Form T-1
the exhibits attached hereto.
Exhibit 1. a. A copy of Articles of Association of the
trustee now in effect. *
b. A copy of the certificate dated May 10,
1983 of name change from Northwestern
National Bank Minneapolis to Norwest Bank
Minneapolis, National Association.*
c. A copy of the certificate dated January 11,
1988, of name change from Norwest Bank
Minneapolis, National Association to
Norwest Bank Minnesota, National
Association.*
Exhibit 2. a. A copy of the certificate of authority of
the trustee to commence business issued June
28, 1872, by the Comptroller of the Currency
to The Northwestern National Bank of
Minneapolis.*
b. A copy of the certificate of the Comptroller
of the Currency dated January 2, 1934,
approving the consolidation of the
Northwestern National Bank of Minneapolis
and the Minnesota Loan and Trust Company of
Minneapolis.*
c. A copy of the certificate of the Acting
Comptroller of the Currency dated January
12, 1943, as to change of corporate title of
Northwestern National Bank and Trust Company
of Minneapolis to Northwestern National Bank
of Minneapolis.*
d. A copy of the certificate of the Comptroller
of the Currency dated May 1, 1983,
authorizing Norwest Bank Minneapolis,
National Association, to act as fiduciary.*
<PAGE> 3
Exhibit 3. A copy of the authorization of the trustee to
exercise corporate trust powers issued January 2,
1934, by the Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b)
of the Act.
Exhibit 7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to the exhibit of the same number
filed with the registration statement number 33-66086.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 8th day of November, 1996.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Raymond S. Haverstock
---------------------------
Raymond S. Haverstock
Vice President
<PAGE> 5
EXHIBIT 6
November 8, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321 (b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal or State authorities authorized to make such
examination may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
Raymond S. Haverstock
Vice President
<PAGE> 6
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
- --------------------------------------------------------------------------------
-----
Please refer to page i 1
[LOGO] Table of Contents, for -----
the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES -- FFIEC 031
(960930)
-----------
Report at the close of business September 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 branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
international Banking Facilities.
- --------------------------------------------------------------------------------
NOTE: The Reports of Condition and income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National banks.
I, /s/ Mark P. Wagener, Director of Bank and Service Accounting
-----------------------------------------------------------------------------
Mark P. Wagener
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/ Mark P. Wagener
- --------------------------------------------------------------------------------
Mark P. Wagener
Signature of Officer Authorized to Sign Report
10/29/96
- --------------------------------------------------------------------------------
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/ James Campbell
- --------------------------------------
James Campbell
Director (Trustee)
/s/ William Queenan
- --------------------------------------
William Queenan
Director (Trustee)
/s/Scott Kisting
- --------------------------------------
Scott Kisting
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 Date 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 __ __ __ __ __ | |
(RCRI 9050)
|___ ___|
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE> 7
FFIEC
PAGE i
------
2
------
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
SIGNATURE PAGE COVER
REPORT OF INCOME
Schedule RI -- Income Statement ......................................RI-1, 2, 3
Schedule RI-A -- Changes in Equity Capital .................................RI-4
Schedule RI-B -- Charge-offs and Recoveries and Changes in Allowance for
Loan and Lease Losses .................................................RI-4, 5
Schedule RI-C -- Applicable Income Taxes by Taxing Authority ...............RI-5
Schedule RI-D -- Income from International Operations ......................RI-6
Schedule RI-E -- Explanations ...........................................RI-7, 8
REPORT OF CONDITION
Schedule RC -- Balance Sheet ............................................RC-1, 2
Schedule RC-A -- Cash and Balances Due From Depository Institutions ........RC-3
Schedule RC-B -- Securities ..........................................RC-3, 4, 5
Schedule RC-C -- Loans and Lease Financing
Receivables:
Part I. Loans and Leases ..............................................RC-6, 7
Part II. Loans to Small Businesses and Small Farms
(included in the forms for June 30 only) ..........................RC-7a, 7b
Schedule RC-D -- Trading Assets and Liabilities
(to be completed only by selected banks) .................................RC-8
Schedule RC-E -- Deposit Liabilities ...............................RC-9, 10, 11
Schedule RC-F -- Other Assets .............................................RC-11
Schedule RC-G -- Other Liabilities ........................................RC-11
Schedule RC-H -- Selected Balance Sheet Items for Domestic Offices ........RC-12
Schedule RC-I -- Selected Assets and Liabilities of IBFs ..................RC-13
Schedule RC-K -- Quarterly Averages .......................................RC-13
Schedule RC-L -- Off Balance Sheet Items ..........................RC-14, 15, 16
Schedule RC-M -- Memoranda ............................................RC-17, 18
Schedule RC-N -- Past Due and Nonaccrual Loans, Leases,
and Other Assets ....................................................RC-19, 20
Schedule RC-O -- Other Data for Deposit Insurance Assessments .........RC-21, 22
Schedule RC-R -- Regulatory Capital ...................................RC-23, 24
Optional Narrative Statement Concerning the Amounts Reported
in the Reports of Conditions and Income .................................RC-25
Special Report (TO BE COMPLETED BY ALL BANKS)
Schedule RC-J -- Repricing Opportunities (sent only to and to be
completed only by savings banks)
DISCLOSURE OF ESTIMATED BURDEN
The estimated average burden associated with this information collection is 32.2
hours per respondent and is estimated to vary from 15 to 230 hours per response,
depending on individual circumstances. Burden estimates include the time for
reviewing instructions, gathering and maintaining data in the required form, and
completing the information collection, but exclude the time for compiling and
maintaining business records in the normal course of a respondent's activities.
Comments concerning the accuracy of this burden estimate and suggestions for
reducing this burden should be directed to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, D.C. 20503, and
to one of the following:
Secretary
Board of Governors of the Federal Reserve System
Washington, D.C. 20551
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
For information or assistance, National and State nonmember banks should contact
the FDIC's Call Reports Analysis Unit, 550 17th Street, NW, Washington, D.C.
20429, toll free on (800) 688-FDIC(3342), Monday through Friday between 8:00
a.m. and 5:00 p.m., Eastern time. State member banks should contact their
Federal Reserve District Bank.
<PAGE> 8
<TABLE>
<S> <C> <C> <C>
Norwest Bank Minnesota, N.A. CALL Date: 09/30/96 ST-SK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RI- I
MinneapoLis, MN 55479 Vendor ID: D CERT: 05208
3
Transit Number: 91000019
</TABLE>
Consolidated Report of Income
for the period January 1, 1996 - September 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>
I480 <-
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income:
a. Interest and fee income on loans:
(1) In domestic offices: RIAD
----
(a) Loans secured by real estate______________________________________________________4011.. 265,884 1.a.1a
(b) Loans to depository institutions__________________________________________________4019.. 4,390 1.a.1b
(c) Loans to finance agricultural production and other loans to farmers_______________4024.. 703 1.a.1c
(d) Commercial and industrial loans___________________________________________________4012.. 224,945 1.a.1d
(e) Acceptances of other banks________________________________________________________4026.. 254 1.a.1e
(f) Loans to individuals for household, family, and other personal expenditures:
(1) Credit cards and related plans________________________________________________4054.. 17,772 1.a.1f1
(2) Othe__________________________________________________________________________4055.. 44,536 1.a.1f2
(g) Loans to foreign governments and official institutions____________________________4056.. 0 1.a.1g
(h) Obligations (other than securities and leases) of states and political
subdivisions in the U.S.:
(1) Taxable obligations___________________________________________________________4503.. 8 1.a.1h1
(2) Tax-exempt obligations________________________________________________________4504.. 1, 242 1.a.1h2
(i) All other loans in domestic offices________________________________________________4058.. 172 1.a.1i
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs__________________________4059.. 7,498 1.a.2
b. Income from lease financing receivables:
(1) Taxable leases_________________________________________________________________________4505.. 29,305 1.b.1
(2) Tax-exempt leases______________________________________________________________________4307.. 283 1.b.2
c. Interest income on balances due from depository institutions:(l)
(1) In domestic offices____________________________________________________________________4105.. 139 1.c.1
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs__________________________4106.. 45 1.c.2
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency and corporation
obligations____________________________________________________________________________4027.. 50,316 1.d.1
(2) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities_________________________________________________________________4506.. 64 1.d.2a
(b) Tax-exempt securities______________________________________________________________4507.. 4,802 1.d.2b
(3) Other domestic debt securities_________________________________________________________3657.. 710 1.d.3
(4) Foreign debt securities________________________________________________________________3658.. 0 1.d.4
(5) Equity securities (including investments in mutual funds)______________________________3659.. 13,448 1.d.5
e. Interest income from trading assets________________________________________________________4069.. 7,980 1.e
</TABLE>
(1) Includes interest income on time certificates of deposit not held for
trading.
<PAGE> 9
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Norwest Bank Minnesota, N.A. CALL Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue
Minneapolis, MN 55479 Vendor ID: D CERT: 05208 Page RI- 2
Transit Number: 91000019 4
</TABLE>
SCHEDULE RI - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Interest income (continued)
f. Interest income on federal funds sold and securities purchased RIAD Year-to-date
under agreements to resell in domestic offices of the bank ----
and of its Edge and Agreement subsidiaries, and in IBFs_______________4020. . 173,659 . . . . . 1.f
9. Total interest income (sum of items 1.a through 1.f)__________________4107. . 848,155 . . . . . 1.g
2. Interest expense:
a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and
telephone and preauthorized transfer accounts)_______________4508. . 6,799 . . . . . 2.a.1a
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs)_____________________4509. . 30,945 . . . . . 2.a.lbl
(2) Other savings deposits____________________________________4511. . 6,767 . . . . . 2.a.lb2
(3) Time certificates of deposit of S 100,000 or more_________4174. . 8,629 . . . . . 2.a.lb3
(4) ALL other time deposits___________________________________4512. . 74,939 . . . . . 2.a.lb4
(2) interest on deposits in foreign offices, Edge and
Agreement subsidiaries, and IBFs__________________________________4172. . 54,785 . . . . . 2.a.2
b. Expense of federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs__________________4180. . 146,513 . . . . . 2.b
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and other borrowed money_________________________________4185. . 97,513 . . . . . 2.c
d. Interest on mortgage indebtedness and obligations under
capitalized leases____________________________________________________4072. . 78 . . . . . 2.d
e. Interest on subordinated notes and debentures________________________4200. . 7,288 . . . . . 2.e
f. Total interest expense (sum of items 2.a through 2.e)_________________4073. . 434,256 . . . . . 2.f
3. Net interest income (item 1.g minus 2.f)_________________________________4074. . . . . . . 413,899 3.
4. Provisions:
a. Provision for loan and lease losses___________________________________4230. . . . . . . 17,745 4.a
b. Provision for allocated transfer risk_________________________________4243. . . . . . . 0 4.b
5. Noninterest income:
a. income from fiduciary activities______________________________________4070. . 139,523 . . . . . . 5.a
b. Service charges on deposit accounts in domestic offices_______________4080. . 56,746 . . . . . . 5.b
c. TRADING REVENUE (MUST EQUAL SCHEDULE RI, SUM OF MEMORANDUM
ITEMS 8.a THROUGH 8.d)________________________________________________A220. . ( 9,554) . . . . . . 5.c
D. Other foreign transaction gains (Losses)______________________________4076. . 1,616 . . . . . . 5.d
e. Not applicable
f. other noninterest income:
(1) Other fee income__________________________________________________5407. . 94,159 . . . . . . 5.f.1
(2) All other noninterest income*_____________________________________5408. . 51,147 . . . . . . 5.f.2
g. Total noninterest income (sum of items 5.a through 5.f)_______________4079. . . . . . . 333,637 5.g
6. a. Realized gains (losses) on held-to-maturity securities________________3521. . . . . . . 0 6.a
b. Realized gains (losses) on available-for-sale securities______________3196. . . . . . . 6,628 6.b
7. Noninterest expense:
a. Salaries and employee benefits________________________________________4135. . 229,291 . . . . . . 7.a
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage interest)______4217. . 61,926 . . . . . . 7.b
c. Other noninterest expense*____________________________________________4092. . 242,858 . . . . . . 7.c
d. Total noninterest expense (sum of items 7.a through 7.c)______________4093. . . . . . . 534,075 7.d
8. Income (loss) before income taxes and extraordinary items and
other adjustments (item 3 plus or minus items 4.a, 4.b, 5.g,
6.a, 6.b, and 7.d)_______________________________________________________4301. . . . . . . 202,344 8.
9. Applicable income taxes (on item 8)______________________________________4302. . . . . . . 66,441 9.
10. Income (loss) before extraordinary items and other adjustments
(item 8 minus 9)_________________________________________________________4300. . . . . . . 135,903 10.
<FN>
__________
* Describe on Schedule RI-E - Explanations.
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Norwest Bank Minnesota, N.A. CAll Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RI- 3
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
</TABLE>
Transit Number: 91000019 5
Schedule RI: - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
11. Extraordinary items and other adjustments:
a. Extraordinary items and other adjustments, gross of income RIAD Year-to-date
taxes * ____________________________________________________________4310. . 0 . . . . . . ll.a
b. Applicable income taxes (on item ll.a)*______________________________4315. . 0 . . . . . . 11.b
c. Extraordinary items and other adjustments, net of
income taxes (item ll.a minus ll.b)_________________________________4320 . . . . . . . 0 ll.c
12. Net income (loss) (sum of items 10 and ll.c)____________________________4340 . . . . . . . 135,903 12.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
I481
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD Year-to-date
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired ----
after August 7, 1986, that is not deductible for federal income tax purposes_____________________4513. . 5 M.1
2. income from the sale and servicing of mutual funds and annuities in domestic
offices (included in Schedule RI, item 8)________________________________________________________8431. . 1,516 M.2
3. Not applicable
4. Not applicable
Number
5. Number of full-time equivalent employees on payroll at end of current period (round to ------
nearest whole number)____________________________________________________________________________4150. . 6,088 M.5
6. Not applicable.
7. If the reporting bank has restated its balance sheet as a result of applying push down MM DD YY
accounting this calendar year, report the date of the bank's acquisition_________________________9106. . N/A M.7
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments)
(Sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c): RIAD Year-to-date
----
a. Interest rate exposures_______________________________________________________________________8757. . ( 16,223) M.8.a
b. Foreign exchange exposures____________________________________________________________________8758. . 6,669 M.8.b
c. Equity security and index exposures___________________________________________________________8759. . 0 M.8.c
d. Commodity and other exposures_________________________________________________________________8760. . 0 M.8.d
9. Impact on income of off-balance sheet derivatives held for purposes other than trading:
a. Net increase (decrease) to interest income____________________________________________________8761. . ( 2,648) M.9.a
b. Net (increase) decrease to interest expense___________________________________________________8762. . 11,157 M.9.b
c. Other (noninterest) allocations_______________________________________________________________8763. . ( 5,624) M.9.c
10.Credit losses on off-balance sheet derivatives (see instructions)________________________________A251. . 0 M.10
<FN>
* Describe on Schedule RI-E Explanations.
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. CALL Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RI- 4
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
6
Transit Number: 91000019
Schedule RI-A - Changes in Equity Capital
Indicate decreases and losses in parentheses. I483 <-
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C>
RIAD
1. Total equity capital originally reported in the December 31, 1995, Reports of ----
Condition and Income___________________________________________________________________3215. . 1,125,067 1.
2. Equity capital adjustments from amended Reports of Income, net*________________________3216. . 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2)___________________3217. . 1,125,067 3.
4. Net income (Loss) (must equal Schedule RI, item 12)____________________________________4340. . 135,903 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net_____________________4346. . 0 5.
6. Changes incident to business combinations, net_________________________________________4356. . 15,525 6.
7. LESS: Cash dividends declared on preferred stock_______________________________________4470. . 0 7.
8. LESS: Cash dividends declared on common stock__________________________________________4460. . 65,000 8.
9. Cumulative effect of changes in accounting principles from prior years * (see
instructions for this schedule)________________________________________________________4411. . 0 9.
10. Corrections of material accounting errors from prior years * (see instructions for
this schedule)_________________________________________________________________________4412. . 0 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities_______8433. . (10,010) 11.
12. Foreign currency translation adjustments_______________________________________________4414. . 1 12.
13. Other transactions with parent holding company * (not included in items 5, 7, or
8 above)_______________________________________________________________________________4415. . 0 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal
Schedule RC, item 28)__________________________________________________________________3210. . 1,201,486 14.
<FN>
__________
* Describe on Schedule RI-E - Explanations.
</TABLE>
Schedule RI-B - Charge-offs and Recoveries and Changes in Allowance
for Loan and Lease Losses
Part 1. Charge-offs and Recoveries on Loans and Leases
Part I excludes charge-offs and recoveries through the allocated transfer
risk reserve.
<TABLE>
<CAPTION>
I486 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
------------calendar year-to-date---------
Charge-offs Recoveries
------------------ -----------------
<S> <C> <C> <C> <C> <C>
RIAD RIAD
1. Loans secured by real estate: ---- ----
a. To U.S. addressees (domicile)______________________________4651. . 2,129 4661. . 2,880 1.a
b. To non-U.S. addressees (domicile)__________________________4652. . 0 4662. . 0 1.b
2. Loans to depository institutions and acceptances of
other banks:
a. To U.S. banks and other U.S. depository
institutions_______________________________________________4653. . 0 4663. . 0 2.a
b. To foreign banks___________________________________________4654. . 0 4664. . 0 2.b
3. Loans to finance agricultural production and other
loans to farmers______________________________________________4655. . 0 4665. . 28 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)______________________________4645. . 8,023 4617. . 6,570 4.a
b. To non-U.S. addressees (domicile)__________________________4646. . 0 4618. . 214 4.b
5. Loans to individuals for household, family, and other
personal expenditures:
a. Credit cards and related plans_____________________________4656. . 1,187 4666. . 137 5.a
b. Other (includes single payment, installment, and
all student loans)_________________________________________4657. . 5,059 4667. . 1,742 5.b
6. Loans to foreign governments and official institutions______4643. . 506 4627. . 527 6.
7. All other loans_____________________________________________4644. . 0 4628. . 0 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile)______________________________4658. . 3,431 4668. . 586 8.a
b. Of non-U.S. addressees (domicile)__________________________4659. . 0 4669. . 0 8.b
9. Total (sum of items 1 through 8)____________________________4635. . 20,335 4605. . 12,684 9.
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RI- 5
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
7
Transit Number: 91000019
Schedule RI-B - Continued
Part I. Continued
Memoranda
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------------
-----------------calendar year-to-date----------------
(Column A) (Column 8)
Charge-offs Recoveries
------------------- ------------------
<S> <C> <C> <C> <C> <C>
l.-3. Not applicable. RIAD RIAD
4. Loans to finance commercial real estate, construction, ---- ----
and land development activities (riot secured by real
estate) included in Schedule RI-B, part I,
items 4 and 7, above_________________________________________5409. . 0 5410. . 0 M.4
5. Loans secured by real estate in domestic offices
(included in Schedule RI-B, part I, item 1, above):
a. Construction and land development_________________________3582. . 0 3583. . 658 M.5.a
b. Secured by farmland_______________________________________3584. . 0 3585. . 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________________________________5411. . 0 5412. . 0 M.5.cl
(2) All other Loans secured by 1-4 family
residential properties_______________________________5413. . 1,443 5414. . 157 M.5.c2
d. Secured by multifamily (5 or more) residential
properties________________________________________________3588. . 0 3589. . 0 M.3.d
a. Secured by nonfarm nonresidential properties_____________3590. . 686 3591. . 2,065 M.5.e
</TABLE>
Part II. Changes in Allowance for Loan and Lease Losses
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD
----
1. Balance originally reported in the December 31, 1995, Reports of Condition and Income__________3124. . 187,020 1.
2. Recoveries (must equal part I, item 9, column B above)_________________________________________4605. . 12,684 2.
3. LESS: Charge-offs (must equal part I, item 9, column A above)__________________________________4635. . 20,335 3.
4. Provision for loan and lease losses (must equal Schedule RI, item 4.a)_________________________4230. . 17,745 4.
5. Adjustments * (see instructions for this schedule)_____________________________________________4815. . 1,724 5.
6. Balance end of current period (sum of items 1 through 5) (must equal Schedule RC,
item 4.b)________________________________________________________________________________________3123. . 198,838 6.
<FN>
__________
* Describe on Schedule RI-E - Explanations.
</TABLE>
<TABLE>
<CAPTION>
Schedule RI-C - Applicable Income Taxes by Taxing Authority
I489 <-
Schedule RI-C is to be reported with the December Report of Income. Dollar Amounts in Thousand
- ------------------------------------------------------------------------------------------------------------------------------
RIAD
----
<S> <C> <C> <C>
1. Federal________________________________________________________________________________________4780. . N/A 1.
2. State and local________________________________________________________________________________4790. . N/A 2.
3. Foreign________________________________________________________________________________________4795. . N/A 3.
4. Total (sum of item 1 through 3) (must equal sum of Schedule RI, items 9 and ll.b)_____________4770. . N/A 4.
</TABLE>
<TABLE>
<S> <C> <C> <C>
RIAD
----
5. Deferred portion of item 4_________________________________4772. . N/A . . . . . . 5.
</TABLE>
<PAGE> 13
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RI- 6
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
Transit Number: 91000019 8
Schedule RI-D - Income from International Operations
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs
where international operations account for more than 10 percent of total
revenues, total assets, or net income.
Part I. Estimated Income from International Operations
I492 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. interest income and expense booked at foreign offices, Edge and Agreement RIAD Year-to-date
subsidiaries, and IBFs: ----
a. interest income booked____________________________________________________________________4837. . N/A l.a
b. Interest expense booked___________________________________________________________________4838. . N/A l.b
c. Net interest income booked at foreign offices, Edge and Agreement subsidiaries,
and IBFs (item l.a minus l.b)_____________________________________________________________4839. . N/A 1.c
2. Adjustments for booking location of international operations:
a. Net interest income attributable to international operations booked at domestic
offices___________________________________________________________________________________4840. . N/A 2.a
b. Net interest income attributable to domestic business booked at foreign
offices___________________________________________________________________________________4841. . N/A 2.b
c. Net booking location adjustment (item 2.a minus 2.b)______________________________________4842. . N/A 2.c
3. Noninterest income and expense attributable to international operations:
a. Noninterest income attributable to international operations_______________________________4097. . N/A 3.a
b. Provision for loan and lease losses attributable to international operations______________4235. . N/A 3.b
c. Other noninterest expense attributable to internatiorial operations_______________________4239. . N/A 3.c
d. Net noninterest income (expense) attributable to international operations (item 3.a
minus 3.b and 3.c)________________________________________________________________________4843. . N/A 3.d
4. Estimated pretax income attributable to international operations before capital
allocation adjustment (sum of items l.c, 2.c, and 3.d)_______________________________________4844. . N/A 4.
5. Adjustment to pretax income for internal allocations to international operations
to reflect the effects of equity capital on overall bank funding costs_______________________4845. . N/A 5.
6. Estimated pretax income attributable to international operations after capital
allocation adjustment (sum of items 4 and 5)_________________________________________________4846. . N/A 6.
7. Income taxes attributable to income from international operations as estimated in
item 6_______________________________________________________________________________________4797. . N/A 7.
8. Estimated net income attributable to international operations (item 6 minus 7)_______________4341. . N/A 8.
</TABLE>
<TABLE>
<CAPTION>
Memoranda
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Intracompany interest income included in item l.a above______________________________________4847. . N/A M.1
2. Intracompany interest expense included in item l.b above_____________________________________4848. . N/A M.2
Part II. Supplementary Details on Income from International Operations
Required by the Departments of Commerce and Treasury for Purposes of the U.S.
International Accounts and the U.S. National Income and Product Accounts
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RIAD Year-to-date
----
1. Interest income booked at IBFs_______________________________________________________________4849. . N/A 1.
2. interest expense booked at IBFs______________________________________________________________4850. . N/A 2.
3. Noninterest income attributable to international operations booked at domestic
offices (excluding IBFs):
a. Gains (losses) and extraordinary items____________________________________________________5491. . N/A 3.a
b. Fees and other noninterest income_________________________________________________________5492. . N/A 3.b
4. Provision for loan and lease losses attributable to international operations booked at
domestic offices (excluding IBFs)____________________________________________________________4852. . N/A 4.
5. other noninterest expense attributable to international operations booked at domestic
offices (excluding IBFsS)_____________________________________________________________________4853. . N/A 5.
</TABLE>
<PAGE> 14
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue
Minneapolis, MN 55479 Vendor ID: D CERT: 05208 Page RI- 7
Transit Number: 91000019 9
Schedule RI-E - Explanations
ScheduLe RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedules RI-A and RI-B, all extraordinary items and
other adjustments in Schedule RI, and all significant items of other
noninterest income and other noninterest expense in ScheduLe RI. (See
instructions for details.)
I495 <-
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. All other noninterest income (from ScheduLe RI, item 5.f.(2))
Report amounts that exceed 10% of ScheduLe RI, item 5.f.(2): 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.f.(2):
TEXT RIAD
---- ----
d. 4461: GAIN ON SALE OF LOAN SERVICING RIGHTS____________________________________ 4461. . 24,637 1.d
e. 4462: PROCESSING FEES__________________________________________________________ 4462. . 14,107 1.e
f. 4463: RENTAL INCOME ___________________________________________________________ 4463. . 5,964 1.f
2. Other noninterest expense (from Schedute RI, item 7.c):
a. Amortization expense of intangible assets_______________________________________4531. . 6,605 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: PROCESSING FEES__________________________________________________________ 4464. . 63,609 2.e
f. 4467: _________________________________________________________________________ 4467. . N/A 2.f
g. 4468: _________________________________________________________________________ 4468. . N/A 2.g
3. Extraordinary items and other adjustments (from Schedule RI, item ll.a) and
applicable income tax effect (from Schedule RI, item ll.b) (itemize and
describe all extraordinary items and other adjustments):
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
TEXT RIAD
---- ----
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) Appticable income tax effect_____________________4491. . 0 . . . . . . 3.c.2
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
4. Equity capital adjustments from amended Reports of Income (from ScheduLe RI-A,
item 2) (itemize and describe all adjustments):
TEXT RIAD
---- ----
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 RIAD
---- ----
a. 4494: ____________________________________________________________________________ 4494. . N/A 5.a
b. 4495: ____________________________________________________________________________ 4495. . N/A 5.b
Corrections of material accounting errors from prior years (from Schedule RI-A, item
10) (itemize and describe all corrections):
TEXT RIAD
---- ----
a. 4496: ____________________________________________________________________________ 4496. . N/A 6.a
b. 4497: ____________________________________________________________________________ 4497. . N/A 6.b
</TABLE>
<PAGE> 15
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Vendor ID: D
Minneapolis, MN 55479 CERT: 05208 Page RI- 8
Transit Number: 91000019 10
Schedule RI-E - Continued
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
7. Other transactions with parent holding company (from Schedule RI-A, item
13) (itemize and describe all such transactions):
TEXT RIAD Year-to-date
---- ----
a. 4498: __________________________________________________________________________ 4498. . 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: ACQUISTIONS________________________________________________________________ 4521. . 1,732 8.a
b. 4522: SALE OF LOANS______________________________________________________________ 4522. . ( 8) 8.b
I498 I499 <-
9. other explanations (the space below is provided for the bank to briefly describe, at its
option, any other significant items affecting the Report of Income):
No comment: x (RIAD 4769)
Other explanations (please type or print clearly):
(TEXT 4769)
</TABLE>
<PAGE> 16
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 1
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
11
Transit Number: 91000019
Consolidated Report of Condition for Insured Commercial and
State-Chartered Savings Banks for September 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
C400 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS RCFD
1. Cash and balances due from depository institutions (from ScheduLe RC-A): ----
a. Noninterest-bearing balances and currency and coin (1)________________________________0081. . 1,393,267 l.a
b. Interest-bearing balances (2)_________________________________________________________0071. . 1,161 l.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. . 1,455,489 2.b
3. Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federat funds sold____________________________________________________________________0276. . 4,238,292 3.a
b. Securities purchased under agreements to resell_______________________________________0277. . 476,920 3.b
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income ----
(from Schedule RC-C)________________________________2122 . . 8,953,765 . . . . . . 4.a
b. LESS: Allowance for loan and lease losses___________3123 . . 198,838 . . . . . . 4.b
c. LESS: Allocated transfer risk reserve_______________3128 . . 0 . . . . . . 4.c
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c)___________________________________2125. . 8,754,927 4.d
5. Trading assets (from Schedule RC-D)______________________________________________________3545. . 15,027 5.
6. Premises and fixed assets (including capitalized leases)_________________________________2145. . 115,389 6.
7. Other real estate owned (from Schedule RC-M)_____________________________________________2150. . 5,543 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. . 41,230 9.
10. Intangible assets (from Schedule RC-M)___________________________________________________2143. . 13,816 l0.
11. Other assets (from Schedule RC-F)________________________________________________________2160. . 547,878 11.
12. TotaL assets (sum of items 1 through 11)_________________________________________________2170. . 17,058,939 12.
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 17
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 2
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
12
Transit Number: 91000019
Schedule RC - Continued
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of ----
columns A and C from Schedule RC-E, part I)_____________________________________________2200. . 8,212,547 13.a
RCON
----
(1) Noninterest-bearing (1)______________________6631. . 3,189,790 . . . . . . 13.a.1
(2) Interest-bearing_____________________________6636. . 5,022,757 . . . . . . 13.a.2
RCFN
----
b. In foreign offices, Edge and Agreement subsidiaries, and IFBs (from
Schedule RC-E, part II__________________________________________________________________2200 2,031,917 13.b
RCFN
----
(1) Noninterest-bearing__________________________6631. . 17,530 . . . . . . 13.b.1
(2) Interest-bearing_____________________________6636. . 2,014,387 . . . . . . 13.b.2
14. Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs: RCFD
----
a. Federal funds purchased_________________________________________________________________0278. . 2,729,810 14.a
b. Securities sold under agreements to repurchase__________________________________________0279. . 400,682 14.b
RCON
----
15. a. Demand notes issued to the U.S. Treasury________________________________________________2840. . 314,0ll 15.a
RCFD
----
b. Trading liabilities (from ScheduLe RC-D)________________________________________________3548. . 13,619 15.b
16. Other borrowed money:
a. with a remaining maturity of one year or less___________________________________________2332. . 8,678 16.a
b. With a remaining maturity of more than one year_________________________________________2333. . 1,608,625 16.b
17. Mortgage indebtedness and obligations under capitalized leases_____________________________2910. . 1,130 17.
18. Bank's liability on acceptances executed and outstanding___________________________________2920. . 41,230 18.
19. Subordinated notes and debentures__________________________________________________________3200. . 195 19.
20. other liabilities (from Schedule RC-G)_____________________________________________________2930. . 495,009 20.
21. TotaL liabilities (sum of items 13 through 20)_____________________________________________2948. . 15,857,453 21.
22. Limited-life preferred stock and related surplus___________________________________________3282. . 0 22.
EQUITY CAPITAL
RCFD
----
23. Perpetual preferred stock and related surplus______________________________________________3838. . 0 23.
24. Common stock_______________________________________________________________________________3230. . 100,000 24.
25. Surplus (exclude all surplus related to preferred stock)___________________________________3839. . 606,409 25.
26. a. Undivided profits and capital reserves__________________________________________________3632. . 488,915 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities__________________8434. . 6,508 26.b
27. Cumulative foreign currency translation adjustments________________________________________3284. . ( 346) 27.
28. Total equity capital (sum of items 23 through 27)__________________________________________3210. . 1,201,486 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of
items 21, 22, and 28)______________________________________________________________________3300. . 17,058,939 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 RCFD Number
the most comprehensive level of auditing work performed for the bank by independent ---- ------
external auditors as of any date during 1995________________________________________________6724. . N/A M.1
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors, examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company (but external auditors
not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in accordance 8 = No external audit work
with generally accepted auditing standards by a certified
public accounting firm (may be required by state charter-
ing authority)
<FN>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
</TABLE>
<PAGE> 18
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-SK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 3
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
13
Transit Number: 91000019
Schedule RC-A - Cash and Balances Due From Depository Institutions
Exclude assets held for trading.
C405 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Consolidated Bank Domestic Offices
---------------- ----------------
<S> <C> <C> <C> <C> <C>
RCFD RCON
1. Cash items in process of collection, unposted ---- ---- . . . . . . 1.
debits, and currency and coin __________________________0022.. 999, 661
a. Cash items in process of collection and unposted
debits _____________________________________________ . . . . . . 0020.. 899,481 1.a
b. Currency and coin ___________________________________ . . . . . . 0080.. 100,159 1.b
2. Balances due from depository institutions in the U.S.___ . . . . . . 0082.. 39,099 2.
a. U.S. branches and agencies of foreign banks
(including their IBFS) _____________________________0083.. 0 . . . . . . 2.a
b. Other commercial banks in the U.S. and other
depository institutions in the U.S. (including
their IBFS) ________________________________________0085.. 39,429 . . . . . . 2.b
3. Balances due from banks in foreign countries and
foreign central banks __________________________________ . . . . . . 0070.. 10,662 3.
a. Foreign branches of other U.S. banks ________________0073.. 10,662 . . . . . . 3.a
b. Other banks in foreign countries and foreign
central banks ______________________________________0074.. 302 . . . . . . 3.b
4. Balances due from Federal Reserve Banks ________________0090.. 344,374 0090.. 343,988 4.
5. Total (sum of items 1 through 4) (total of column A
must equal Schedule RC, sum of items l.a and l.b) ______0010.. 1,394,428 0010.. 3,393,389 5.
Memorandum
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
RCON
1. Noninterest-bearing balances due from commercial banks in the U.S. ----
(included in item 2, column B above) ____________________________________________________________0050.. 38,228 M.1
Schedule RC-B - Securities
Exclude assets held for trading.
C410 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value (1)
----------------------- ------------------------ ---------------------- -------------------------
RCFD RCFD RCFD RCFD
1. U.S. Treasury ---- ---- ---- ----
securities ________0211.. 0 0213.. 0 1286.. 462,175 1287.. 461,205 1.
2. U.S. Government
agency and
corporation
obligations (exclude
mortgage-backed
securities):
a. Issued by U.S. RCFD RCFD RCFD RCFD
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.. 7,620 1298.. 7,610 2.b
________________
(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 Mational Mortgage Association, the Financing Corporation,
Resolution Funding Corporation, the Student Loan Marketing Association, and the Tennessee Valley Authority.
</TABLE>
<PAGE> 19
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-SK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 4
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
14
Transit Number: 91000019
Schedule RC-B - Continued
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value (1)
---------------- ---------------- ----------------------- ----------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3. Securities issued by
states and political
subdivisions in the U.S.: RCFD RCFD RCFD RCFD
a. General ---- ---- ---- ----
obligations____________1676.. 0 1677.. 0 1678.. 24,077 1679.. 24,926 3.a
b. Revenue
obligations____________1681.. 0 1686.. 0 1690.. 74,801 1691.. 79,315 3.b
c. Industrial
development
and similar
obligations____________1694.. 0 1695.. 0 1696.. 4,508 1697.. 5,281 3.c
4. Mortgage-backed
securities (MBS):
a. Pass-through
securities:
(1) Guaranteed
by GNMA____________1698.. 0 1699.. 0 1701.. 111,037 1702.. 111,448 4a1
(2) Issued by
FNMA and
FHLMC______________1703.. 0 1705.. 0 1706.. 512,645 1707.. 518,347 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 FNMA, RCFD RCFD RCFD RCFD
FHLMC, or ---- ---- ---- ----
GNMA_______________1714.. 0 1715.. 0 1716.. 27,944 1717.. 27,169 4b1
(2) Collateralized
by MBS issued
or guaranteed
by FNMA, RCFD RCFD RCFD RCFD
FHLMC, ---- ---- ---- ----
or GNMA____________1718.. 0 1719.. 0 1731.. 70 1732.. 70 4b2
(3) All other
mortgage-
backed
securities_________1733.. 0 1734.. 0 1735.. 3,061 1736.. 3,067 4b3
5. Other debt securities:
a. Other domestic RCFD RCFD RCFD RCFD
debt ---- ---- ---- ----
securities_____________1737.. 0 1738.. 0 1739.. 2,170 1741.. 2,192 5.a
b. Foreign debt
securities_____________1742.. 0 1743.. 0 1744.. 0 1746.. 0 5.b
6. Equity securities:
a. Investments RCFD RCFD RCFD RCFD
in mutual ---- ---- ---- ----
funds__________________ ... . . . . . ... . . . . . 1747.. 2,909 1748.. 2,909 6.a
b. Other equity
securities
with readily
determinable
fair values____________ ... . . . . . ... . . . . . 1749.. 0 1751.. 0 6.b
c. All other
equity
securities(l)__________ ... . . . . . ... . . . . . 1752.. 211,950 1753.. 211,950 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.. 1,444,967 1773.. 1,455,489 7.
(1) Includes equity securities without readily determinable fair values at historical cost in item 6.c, column D.
</TABLE>
<PAGE> 20
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 5
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
15
Transit Number: 91000019
Schedule RC-B - Continued
Memoranda
C412 --
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
RCFD
----
<S> <C> <C> <C>
1. Pledged securities (2)___________________________________________________________________________0416.. 152,885 M.1
2. Maturity and repricing data for debt securities (2,3,4)(excluding those in nonaccrual
status):
a. Fixed rate debt securities with a remaining maturity of:
(1) Three months or less_____________________________________________________________________0343.. 112,673 M.2.a1
(2) Over three months through 12 months______________________________________________________0344.. 8,228 M.2.a2
(3) Over one year through five years_________________________________________________________0345.. 168,235 M.2.a3
(4) Over five years__________________________________________________________________________0346.. 768,024 M.2.a4
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1)
through 2.a.(4)__________________________________________________________________________0347.. 1,057,160 M.2.a5
b. Floating rate debt securities with a repricing frequency of:
(1) Quarterly or more frequently_____________________________________________________________4544.. 101,596 M.2.b1
(2) Annually or more frequently, but less frequently than quarterly__________________________4545.. 81,874 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.(l)
through 2.b.(4))_________________________________________________________________________4553.. 183,470 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-N, item 9, column C)_________________0393.. 1,240,630 M.2.c
3. Not applicable___________________________________________________________________________________ ............
4. Held-to-maturity debt securities restructured and in compliance with modified terms
(included in Schedule RC-B, items 3 through 5, column A, above)__________________________________5365.. 0 M.4
5. Not applicable___________________________________________________________________________________ ............
6. Floating rate debt securities with a remaining maturity of one year or less (2,4)
(included in Memorandum items 2.b.(1) through 2.b.(4) above)_____________________________________5519.. 947 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.. 92 M.8.a
b. Fair value____________________________________________________________________________________8781.. 95 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.. 2,601 M.9.a
b. Fair value____________________________________________________________________________________8783.. 2,600 M.9.b
<FN>
- ----------
(2) Includes held-to-maturity securities at amortized cost and available-for-sale securities at fair value.
(3) Exclude equity securities, e.g., investments in mutual funds, Federal Reserve stock, common stock, and preferred stock.
(4) Memorandum items 2 and 6 are not applicable to savings banks that must complete supplemental Schedule RC-J.
</TABLE>
<PAGE> 21
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 EFIC 031
Sixth Street and Marquette Avenue Page RC- 6
MinneapoLis, MN 55479 Vendor ID: D CERT: 05208
16
Transit Number: 91000019
Schedule RC-C - Loans and Lease Financing Receivables
Part 1. 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.
C415 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Consolidated Bank Domestic Offices
----------------- ----------------
RCFD RCON
---- ----
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate______________________________1410.. 3,323,203 ...... 1.
a. Construction and land development_____________________ ......... 1415.. 58,017 1.a
b. Secured by farmland (including farm residential and
other improvements)___________________________________ ......... 1420.. 1,122 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.. 114,236 1.c1
(2) All other Loans secured by 1-4 family
residential properties:
(a) Secured by first liens________________________ ......... 5367.. 2,244,850 1.c2a
(b) Secured by junior liens_______________________ ......... 5368.. 445,882 1.c2b
d. Secured by multifamily (5 or more) residential
properties____________________________________________ ......... 1460.. 56,384 1.d
e. Secured by nonfarm nonresidential properties__________ ......... 1480.. 402,712 1.e
2. Loans to depository institutions:
a. To commercial banks in the U.S._______________________ ......... 1505.. 48,971 2.a
(1) To U.S. branches and agencies of foreign banks____1506.. 0 ......... 2.a1
(2) To other commercial banks in the U.S._____________1507.. 58,712 ......... 2.a2
b. To other depository institutions in the U.S.__________1517.. 0 1517.. 0 2.b
c. To banks in foreign countries_________________________ ......... 1510.. 298 2.c
(1) To foreign branches of other U.S. banks___________1513.. 0 ......... 2.c1
(2) To other banks in foreign countries_______________1516.. 59,495 ......... 2.c2
3. Loans to finance agricultural production and other
loans to farmers_________________________________________1590.. 4,146 1590.. 4,146 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)_________________________1763.. 3,166,427 1763.. 3,161,189 4.a
b. To non-U.S. addressees (domicile)_____________________1764.. 53,355 1764.. 150 4.b
5. Acceptances of other banks:
a. Of U.S. banks_________________________________________1756.. 0 1756.. 0 5.a
b. Of foreign banks______________________________________1757.. 3,027 1757.. 3,027 5.b
6. Loans to individuals for household, family, and other
personal expenditures (i.e., consumer loans) (includes
purchased paper)_________________________________________ ......... 1975.. 1,051,711 6.
a. Credit cards and related plans (includes check
credit and other revolving credit plans)______________2008.. 218,523 ......... 6.a
b. Other (includes single payment, installment, and all
student loans)________________________________________2011.. 833,968 ......... 6.b
7. Loans to foreign governments and official institutions
(including foreign central banks)________________________2081.. 5,000 2081.. 5,000 7.
8. Obligations (other than securities and leases) of
states and political subdivisions in the U.S. (includes
nonrated industrial development obligations)_____________2107.. 22,132 2107.. 22,132 8.
9. Other loans______________________________________________1563.. 578,548 ......... 9.
a. Loans for purchasing or carrying securities (secured
and unsecured)________________________________________ ......... 1545.. 44,173 9.a
b. All other loans (exclude consumer loans)______________ ......... 1564.. 534,375 9.b
10. Lease financing receivables (net of unearned income)_____ ......... 2165.. 629,992 10.
a. Of U.S. addressees (domicile)_________________________2182.. 629,992 ......... 10.a
b. Of non-U.S. addressees (domicile)_____________________2183.. 0 ......... 10.b
11. LESS: Any unearned income on loans reflected in items
1-9 above________________________________________________2123.. 2,763 2123.. 1,875 11.
12. Total loans and leases, net of unearned income (sum of
items 1 through 10 minus item 11) (total of column A
must equal Schedule RC, item 4.a) _______________________2122.. 8,953,765 2122.. 8,826,492 12.
</TABLE>
<PAGE> 22
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-8K: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 7
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
17
Transit Number: 91000019
Schedule RC-C - Continued
Part 1. Continued
Memoranda
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Consolidated Bank Domestic offices
------------------------------- -------------------------
RCFD RCON
---- ----
<S> <C> <C> <C> <C> <C>
1. Commercial paper included in Schedule RC-C, part I,
above__________________________________________________________1496.. 0 1496.. 0 M.1
2. Loans and leases restructured and in compliance with
modified terms (included in Schedule RC-C, part I,
above, and not reported as past due or nonaccrual
in Schedule RC-N, Memorandum item 1):
a. Loans secured by real estate:
(1) To U.S. addressees (domicile)__________________________1687.. 0 M.2.a1
(2) To non-U.S. addressees (domicile)______________________1689.. 0 M.2.a2
b. All other loans and all lease financing receivables
(exclude loans to individuals for household, family,
and other personal expenditures)___________________________8691.. 0 M.2.b
c. Commercial and industrial loans to and lease
financing receivables of non-U.S. addressees
(domicile) included in Memorandum item 2.b above___________8692.. 0 M.2.c
3. Maturity and repricing data for loans and leases (1)
(excluding those in nonaccrual status):
a. Fixed rate loans and leases with a remaining maturity
of:
(1) Three months or less___________________________________0348.. 3,452,096 M.3.a1
(2) Over three months through 12 months____________________0349.. 653,785 M.3.a2
(3) Over one year through five years_______________________0356.. 1,757,203 M.3.a3
(4) Over five years________________________________________0357.. 825,373 M.3.a4
(5) Total fixed rate loans and leases (sum of
Memorandum items 3.a.(l) through 3.a.(4))______________0358.. 6,688,457 M.3.a5
b. Floating rate loans with a repricing frequency of:
(1) Quarterly or more frequently___________________________4554.. 1,912,494 M.3.b1
(2) Annually or more frequently, but less frequently
than quarterly_________________________________________4555.. 277,079 M.3.b2
(3) Every five years or more frequently, but less
frequently than annually_______________________________4561.. 35,110 M.3.b3
(4) Less frequently than every five years__________________4564.. 0 M.3.b4
(5) Total floating rate loans (sum of Memorandum
items 3.b.(l) through 3.b.(4))_________________________4567.. 2,224,683 M.3.b5
c. Total loans and leases (sum of Memorandum items
3.a.(5) and 3.b.(5)) (must equal the sum of total
loans and leases, net, from Schedule RC-C, part I,
item 12, plus unearned income from Schedule RC-C,
part 1, item 11, minus total nonaccrual loans and
leases from Schedule RC-N, sun of items 1 through 8,
column C)__________________________________________________1479.. 8,913,140 M.3.c
d. Floating rate loans with a remaining maturity of
one year or less (included in Memorandum items 3.b.(l)
through 3.b.(4) above)_____________________________________A246.. 765,643 M.3.d
4. Loans to finance commercial real estate, construction,
and land development activities (not secured by real
estate) included in Schedule RC-C, part I, items 4 and
9, column A, page RC-6 (2)_____________________________________2746.. 0 M.4
5. Loans and leases held for sale (included in
Schedule RC-C, part I, above)__________________________________5369.. 1,655,120 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), column B,
page RC-6)_____________________________________________________. . . . . . 5370. 285,781 M.6
- ----------
<FN>
(1) Memorandum item 3 is not applicable to savings banks that must complete supplemental Schedule RC-J.
(2) Exclude loans secured by real estate that are included in Schedule RC-C, part I, item 1, column A.
</TABLE>
<PAGE> 23
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. CALL Date: 09/30/96 ST-SK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 8
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
18
Transit Number: 91000019
Schedule RC-D - Trading Assets and Liabilities
Schedule RC-D is to be completed only by banks with $1 billion or more in total assets or with $2 billion or more in par/notional
amount of off-balance sheet derivative contracts (as reported in ScheduLe RC-L, items 14.a through 14.e, columns A through D).
C420 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
ASSETS
RCON
----
<S> <C> <C> <C>
1. U.S. Treasury securities in domestic offices_______________________________________________3531.. N/A 1.
2. U.S. Government agency and corporation obligations in domestic offices (exclude
mortgage-backed securities)________________________________________________________________3532.. N/A 2.
3. Securities issued by states and political subdivisions in the U.S. in domestic
offices____________________________________________________________________________________3533.. N/A 3.
4. Mortgage-backed securities (MBS) in domestic offices:
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA____________________3534.. 0 4.a
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or
GNMA (include CMOs, REMICS, and stripped MBS)___________________________________________3535.. N/A 4.b
c. All other mortgage-backed securities____________________________________________________3536.. N/A 4.c
5. Other debt securities in domestic offices__________________________________________________3537.. N/A 5.
6. Certificates of deposit in domestic offices________________________________________________3538.. N/A 6.
7. Commercial paper in domestic offices_______________________________________________________3539.. N/A 7.
8. Bankers acceptances in domestic offices____________________________________________________3540.. N/A 8.
9. Other trading assets in domestic offices___________________________________________________3541.. N/A 9.
10. Trading assets RCFN
in foreign offices_________________________________________________________________________3542.. N/A 10.
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and
equity contracts: RCON
a. In domestic offices_____________________________________________________________________3543.. 15,027 11.a
RCFN
b. In foreign offices______________________________________________________________________3544.. N/A 11.b
12. Total trading assets (sum of items 1 through 11) RCFD
(must equal Schedule RC, item 5)___________________________________________________________3545.. 15,027 12.
LIABILITIES
13. Liability for short positions______________________________________________________________3546.. N/A 13.
14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and
equity contracts___________________________________________________________________________3547.. 13,619 14.
15. Total trading liabilities (sum of items 13 and 14)(must equal Schedule RC,
item 15.b)_________________________________________________________________________________3548.. 13,619 15.
</TABLE>
<PAGE> 24
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 9
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
19
Transit Number: 91000019
Schedule RC-E - Deposit Liabilities
Part I. Deposits in Domestic Offices
C425 --
Dollar Amounts 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)
- ----------------------------------------------- --------------------------- ------------------------ ----------------------------
Deposits of: RCON RCON RCON
------------ ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
1. Individuals, partnerships and corporations_____2201.. 3,130,258 2240.. 2,671,364 2346.. 4,551,799 1.
2. U.S. Government________________________________2202.. 26,868 2280.. 26,868 2520.. 0 2.
3. States and political subdivisions in
the U.S._______________________________________2203.. 44,065 2290.. 41,392 2530.. 9,391 3.
4. Commercial banks in the U.S.___________________2206.. 397,081 2310.. 397,081 2550.. 0 4.
5. Other depository institutions in the U.S.______2207.. 5,330 2312.. 5,330 2349.. 0 5.
6. Banks in foreign countries_____________________2213.. 10,204 2320.. 10,204 2236.. 0 6.
7. Foreign governments and official institu-
tions (including foreign central banks)________2216.. 0 2300.. 0 2377.. 0 7.
8. Certified and official checks__________________2330.. 37,551 2330.. 37,551 . . . . . . 8.
9. Total (sum of items 1 through 8) (sum of
columns A and C must equal Schedule RC,
item 13.a)_____________________________________2215.. 3,651,357 2210.. 3,189,790 2385.. 4,561,190 9.
<CAPTION>
Memoranda
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Selected components of total deposits (i.e., sum of item 9, columns A and C): RCON
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts__________________________6835.. 552,931 M.l.a
b. Total brokered deposits______________________________________________________________________2365.. 0 M.l.b
c. Fully insured brokered deposits (included in Memorandum item l.b above):
(1) issued in denominations of less than $100,000____________________________________________2343.. 0 M.l.cl
(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.l.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
l.c.(l) above)__________________________________________________________________________A243.. 0 M.l.dl
(2) Brokered deposits issued in denominations of $100,000 or more
with a remaining maturity of one year or less (included in Memorandum item
l.b above)______________________________________________________________________________A244.. 0 M.l.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.. 45,953 M.l.e
2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.d
must equal item 9, column C above):
a. Savings deposits:
(1) Money market deposit accounts (MMDAs)____________________________________________________6810.. 1,630,108 M.2.al
(2) Other savings deposits (excludes MMDAs)__________________________________________________0352.. 969,406 M.2.a2
b. TotaL time deposits of less than $100,000____________________________________________________6648.. 1,770,590 M.2.b
c. Time certificates of deposit of $100,000 or more_____________________________________________6645.. 175,060 M.2.c
d. Open-account time deposits of $100,000 or more_______________________________________________6646.. 16,026 M.2.d
3. All NOW accounts (included in column A above)___________________________________________________2398.. 461,567 M.3
4. Not applicable
</TABLE>
<PAGE> 25
<TABLE>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue
Minneapolis, MN 55479 Vendor ID: D CERT: 05208 Page RC- 10
Transit Number: 91000019 20
Schedule RC-E - Continued
Part 1. Continued
Memoranda (Continued)
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
5. Maturity and repricing data for time deposits of less than $100,000 (sum of Memorandum items 5.a.(l) through 5.b.(3) must
equal Memorandum item 2.b above): (1)
a. Fixed rate time deposits of less than $100,000 with a remaining maturity of: RCON
(1) Three months or less________________________________________________________A225 .. 364,202 M.5.a1
(2) Over three months through 12 months_________________________________________A226 .. 703,665 M.5.a2
(3) Over one year_______________________________________________________________A227 .. 702,723 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.(l) through 6.b.(4) must equal the sum
of Memorandum items 2.c and 2.d above): (1)
a. Fixed rate time deposits of $100,000 or more with a remaining maturity of:
(1) Three months or less________________________________________________________A232 .. 58,200 M.6.a1
(2) Over three months through 12 months_________________________________________A233 .. 60,996 M.6.a2
(3) Over one year through five years____________________________________________A234 .. 61,459 M.6.a3
(4) Over five years_____________________________________________________________A235 .. 10,431 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
- -----------------
(1) Memorandum items 5 and 6 are not applicable to saving banks that must complete supplemental Schedule RC-J.
</TABLE>
<PAGE> 26
<TABLE>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue
MinneapoLis, MN 55479 Vendor ID: D CERT: 05208 Page RC- 11
Transit Number: 91000019 21
Schedule RC-E - Continued
Part 11. Deposits in Foreign Offices (including Edge and
Agreement subsidiaries and IBFS)
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
Deposits of: RCFN
----
<S> <C> <C> <C>
1. Individuals, partnerships, and corporations____________________________________________2621 .. 444,832 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks)_________________________2623 .. 1,558,691 2.
3. Foreign banks (including U.S. branches and agencies of foreign banks,
including their IBFS)__________________________________________________________________2625 .. 28,156 3.
4. Foreign governments and official institutions (including foreign central banks)________2650 .. 0 4.
5. Certified and official checks__________________________________________________________2330 .. 128 5.
6. ALL other deposits_____________________________________________________________________2668 .. 110 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b)___________________2200 .. 2,031,917 7.
Memorandum Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
RCFN
----
<S> <C> <C> <C>
1. Time deposits with a remaining maturity of one year or less (included in Part II,
item 7 above)_________________________________________________________________________A245 .. 2,014,387 M.1
Schedule RC-F - Other Assets
C430 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
RCFD
----
<S> <C> <C> <C>
1. Income earned, not collected on loans__________________________________________________2164 .. 54,809 1.
2. Net deferred tax assets (1)____________________________________________________________2148 .. 0 2.
3. Excess residential mortgage servicing fees receivable__________________________________5371 .. 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item)______________________2168 .. 493,069 4.
TEXT RCFD
---- ----
a. 3549: LOAN & FEE PAYMENTS RECEIVABLE-AFFILIATE____________3549 .. 337,097 . . . . . . 4.a
b. 3550: ACCOUNTS RECEIVABLE-AFFILIATE_______________________3550 .. 46,871 . . . . . . 4.b
c. 3551: ____________________________________________________3551 .. N/A . . . . . . 4.c
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11)____________________2160 .. 547,878 5.
Memorandum
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
RCFD
<S> <C> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes_________________________5610 .. 0 M.1
Schedule RC-G - Other Liabilities
C435 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
RCON
----
<S> <C> <C> <C>
1. a. Interest accrued and unpaid on deposits in domestic offices (2)_____________________3645 .. 32,541 1.a
RCFD
b. Other expenses accrued and unpaid (includes accrued ----
income taxes payable)_______________________________________________________________3646 .. 316,713 1.b
2. Net deferred tax liabilities (1)_______________________________________________________3049 .. 122,851 2.
3. Minority interest in consolidated subsidiaries_________________________________________3000 .. 1,097 3.
4. Other (itemize and describe amounts that exceed 25% of this item)______________________2938 .. 21,807 4.
TEXT RCFD
---- ----
a. 3552:_____________________________________________________3552 .. N/A . . . . . . 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 be equal Schedule RC, item 20)__________________2930 .. 495,009 5.
- --------------
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) For savings banks, include "dividends" accrued and unpaid on deposits.
</TABLE>
<PAGE> 27
<TABLE>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue
MinneapoLis, MN 55479 Vendor ID: D CERT: 05208 Page RC- 12
Transit Number: 91000019 22
Schedule RC-H - Selected Balance Sheet Items for Domestic Offices
C440 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Domestic Offices
------------------------------
RCON
----
1. Customer's liability to this bank on acceptances outstanding__________________________2155 .. 20,907 1.
2. Bank's liability on acceptances executed and outstanding_______________________________2920 .. 20,907 2.
3. Federal funds sold and securities purchased under agreements to resell_________________1350 .. 4,715,212 3.
4. Federal funds purchased and securities sold under agreements to repurchase_____________2800 .. 3,130,492 4.
5. Other borrowed money___________________________________________________________________3190 .. 1,617,303 5.
EITHER
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs____________2163 .. N/A 6.
OR
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs______________2941 .. 1,915,823 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement
subsidiaries, and IBFS)________________________________________________________________2192 .. 16,912,226 8.
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement
subsidiaries, and IBFS) 3129 .. 13,794,917 9.
Items 10 - 17 include held-to-maturity and available-for-sale securities in domestic
offices.
10. U.S. Treasury securities______________________________________________________________1779 .. 461,205 10.
11. U.S. Government agency and corporation obligations (excludes mortgage-backed
securities)___________________________________________________________________________1785 .. 7,610 11.
12. Securities issued by states and political subdivisions in the U.S.____________________1786 .. 109,522 12.
13. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA_________________________________1787 .. 629,795 13.a.1
(2) Other pass-through securities________________________________________________1869 .. 0 13.a.2
b. Other mortgage-backed securities (include CMOs, REMICS, and stripped MBS):
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA_________________________________1877 .. 27,169 13.b.1
(2) All other mortgage-backed securities_________________________________________2253 .. 3,137 13.b.2
14. Other domestic debt securities________________________________________________________3159 .. 2,192 14.
15. Foreign debt securities_______________________________________________________________3160 .. 0 15.
16. Equity securities:
a. Investments in mutual funds________________________________________________________3161 .. 2,909 16.a
b. Other equity securities with readily determinable fair values______________________3162 .. 0 16.b
c. All other equity securities________________________________________________________3169 .. 211,950 16.c
17. Total held-to-maturity and available-for-sale securities (sum of items 10 through
16)___________________________________________________________________________________3170 .. 1,455,489 17.
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
Dollar Amounts in Thousands
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
EITHER
1. Net due from the IBF of the domestic offices of the reporting bank_____________________3051 .. N/A M.1
OR
2. Net due to the IBF of the domestic offices of the reporting bank_______________________3059 .. 0 M.2
</TABLE>
<PAGE> 28
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue
Minneapolis, MN 55479 Vendor ID: D CERT: 05208 Page RC- 13
Transit Number: 91000019 23
Schedule RC-I - Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices.
C445 <-
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCFN
----
1. Total IBF assets of the consolidated bank (component of ScheduLe RC, item 12)_______________2133. N/A 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, part I, N/A 2.
item 12, cotumn A)__________________________________________________________________________2076. N/A 3.
3. ISF commercial and industrial loans (component of ScheduLe RC-C, part I, item 4, N/A 4.
column A)___________________________________________________________________________________2077. N/A 5 .
4. TotaL IBF liabilities (component of Schedule RC, item 21)___________________________________2898. N/A 6.
5. IBF deposit Liabilities due to banks, including other IBFs (component of Schedule
RC-E, part II, items 2 and 3)_______________________________________________________________2379.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5,
and 6)______________________________________________________________________________________2381.
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-K - Quarterly Averages (1)
C455 <-
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS RCFD
----
1. Interest-bearing balances due from depository institutions_________________________________3381. 3,680 1.
2. U.S. Treasury securities and U.S. Government agency and corporation obligations(2)_________3382. 988,625 2.
3. Securities issued by states and political subdivisions in the U.S.(2)______________________3383. 104,033 3.
4. a. Other debt securities(2)________________________________________________________________3647. 6,479 4.a
b. Equity securities (3)(includes investments in mutual funds and Federal Reserve
stock)__________________________________________________________________________________3648. 218,933 4.b
5. Federal funds soid and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs________________________________________________________________________________3365. 3,841,271 5.
6. Loans:
a. Loans in domestic offices: RCON
----
(1) Total loans_________________________________________________________________________3360. 10,060,379 6.a.1
(2) Loans secured by real estate________________________________________________________3385. 4,722,587 6.a.2
(3) Loans to finance agricultural production and other loans to farmers_________________3386. 9,381 6.a.3
(4) Commercial and industrial loans_____________________________________________________3387. 3,668,950 6.a.4
(5) Loans to individuals for household, family, and other personal expenditures_________3388. 1,051,143 6.a.5
RCFN
b. Total loans in foreign offices, Edge and Agreement subsidiaries, ----
and IBFs________________________________________________________________________________3360. 143,991 6.b
7. Trading RCFD
----
assets_____________________________________________________________________________________3401. 111,738 7.
B. Lease financing receivables (net of unearned income)_______________________________________3484. 625,982 8.
9. Total assets(4)____________________________________________________________________________3368. 16,506,469 9.
LIABILITIES
10. Interest-bearing transaction accounts in domestic offices (NOW accounts, ATS RCON
accounts, and telephone and preauthorized transfer accounts) (exclude demand ----
deposits___________________________________________________________________________________3485. 312,038 10.
11. Nontransaction accounts in domestic offices:
a. Money market deposit accounts (MMDAs)___________________________________________________3486 1,637,139 ll.a
b. Other savings deposit___________________________________________________________________3487. 1,115,803 ll.b
c. Time certificates of deposit of $ 100,000 or more_______________________________________3345 180,789 ll.c
d. All other time deposits_________________________________________________________________3469 1,828,618 ll.d
RCFN
12. Interest-bearing deposits in foreign offices, Edge and Agreement ----
subsidiaries, and IBFs_____________________________________________________________________3404. 1,735,212 12.
13. Federal funds purchased and securities sold under agreements to repurchase RCFD
in domestic offices of the bank and of its Edge and Agreement ----
subsidiaries, and in IBFs__________________________________________________________________3353. 3,252,570 13.
14. Other borrowed money_______________________________________________________________________3355. 1,670,505 14.
<FN>
________________
(1) For all items, banks have the option of reporting either (1) an average of
daily figures for the quarter, or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter).
(2) Quarterly averages for all debt securities should be based on amortized
cost.
(3) Quarterly averages for all equity securities should be based on
historical cost.
(4) The quarterly average for totat assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
</TABLE>
<PAGE> 29
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-SK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue
Minneapotis, MN 55479 Vendor ID: D CERT: 05208 Page RC- 14
24
Transit Number: 91000019
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.
C460 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unused commiitments: RCFD
a. Revolving, open-end lines secured by 1-4 family residential properties, ----
e.g., home equity lines___________________________________________________________________3814. . 170,734 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. . 80, 684 1.c.1
(2) Commitments to fund loans not secured by real estate__________________________________6550. . 150 1.c.2
d. Securities underwriting___________________________________________________________________3817. . 0 1.d
e. Other unused commitments__________________________________________________________________3818. . 3,650,754 1.e
2. Financial staridby letters of credit and foreign office guarantees____________________________3819. . 841,133 2.
RCFD
a. Amount of financial standby letters of credit ----
conveyed to others______________________________________3820. . 320,471 . . . . . . 2.a
3. Performance standby letters of credit and foreign office guarantees___________________________3821. . 75,678 3.
RCFD
a. Amount of performance standby letters of credit ----
conveyed to others______________________________________3822. . 27,020 . . . . . . 3.a
4. Comercial and similar letters of credit_______________________________________________________3411. . 334,387 4.
5. Participations in acceptances (as described in the instructions) conveyed to others
by the reporting bank_________________________________________________________________________3428. . 0 5.
6. Participations in acceptances (as described in the instructions) acquired by the
reporting (nonaccepting) bank_________________________________________________________________3429. . 0 6.
7. Securities borrowed___________________________________________________________________________3432. . 3,486,560 7.
B. Securities lent (including customers' securities lent where the customer is
indemnified against loss by the reporting bank)_______________________________________________3433. . 261,954 8.
9. Loans transferred (i.e., sold or swapped) with recourse that have been treated
as sold for Call Report purposes:
a. FNMA and FHLMC residential mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of the
report date___________________________________________________________________________3650. . 22,947 9.a.1
(2) Amount of recourse exposure on these mortgages as of the report date__________________3651. . 22,947 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 agriculturat 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. . 282,774 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet derivatives).
(itemize and describe each component of this item over 25% of Schedule RC,
item 28, "Total equity capital")_____________________________________________________________3430. 0 12.
TEXT RCFD
---- ----
a. 3555:___________________________________________________3555. . N/A . . . . . . 12.a
b. 3556:___________________________________________________3556. . N/A . . . . . . 12.b
c. 3557:___________________________________________________3557. . N/A . . . . . . 12.c
d. 3558:___________________________________________________3558. . N/A . . . . . . 12.d
</TABLE>
<PAGE> 30
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-SK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 15
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
25
Transit Number: 91000019
Schedule RC-L - Continued
- ----------------------------------------------------------------------------------------------------------------------------------
Dollar Amounts in Thousands
<S> <C> <C> <C> <C>
13. All other off-balance sheet assets (exclude off-balance sheet derivatives)
(itemize and describe each component of this item over 25% of Schedule RC,
item 28, "Total equity capital")________________________________________________________5591. . 0 13.
TEXT RCON
---- ----
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
C461 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Off-balance Sheet Equity Commodity
Derivatives Interest Rate Foreign Exchange Derivative And Other
Position Indicators Contracts Contracts Contracts Contracts
- ---------------------------------------------------- ---------------------- -------------------- ----------------------
14. Gross amounts (e.g.,
notional amounts)(for
each column, sum of
items 14.a through 14.e
must equal sum of items
15, 16.a, and 16.b):
a. Futures contracts___ 316,500 103 0 0 14.a
RCFD 8693 RCFD 8694 RCFD 8695 RCFD 8696
b. Forward contracts___ 0 578,924 0 0 14.b
RCFD 8697 RCFD 8698 RCFD 8699 RCFD 8700
c. Exchange-traded
option contracts:
(1) Written
options________ 0 0 0 0 14.c1
RCFD 8701 RCFD 8702 RCFD 8703 RCFD 8704
(2) Purchased
options________ 0 0 0 0 14.c2
RCFD 8705 RCFD 8706 RCFD 8707 RCFD 8708
d. Over-the-counter
option contracts:
(1) Written
options________ 421,925 6,058 0 0 14.d1
RCFD 8709 RCFD 8710 RCFD 8711 RCFD 8712
(2) Purchased
option_________ 798,767 8,058 0 0 14.d2
RCFD 8713 RCFD 8714 RCFD 8715 RCFD 8716
e. Swaps_______________ 3,776,092 0 0 785 14.e
RCFD 3450 RCFD 3826 RCFD 8719 RCFD 8720
15. Total gross notional
amount of derivative
contracts held for
trading________________ 2,723,213 593,143 0 785 15.
RCFD A126 RCFD A127 RCFD 8723 RCFD 8724
16. Total gross notional
amount of derivative
contracts held for
purposes other than
trading:
a. Contracts marked
to market__________ 0 0 0 0 16.a
RCFD 8725 RCFD 8726 RCFD 8727 RCFD 8728
b. Contracts not
marked to market___ 2,590,071 0 0 0 16.b
RCFD 8729 RCFD 8730 RCFD 8731 RCFD 8732
</TABLE>
<PAGE> 31
<TABLE>
Norwest Bank Minnesota, N.A. CALL Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 16
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
Transit Number: 91000019 26
Schedule RC-L - Continued
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
(Colum A) (Column B) (Column C) (Column 0)
Off-Balance Sheet Equity Commodity
Derivatives Position Interest Rate Foreign Exchange Derivative And Other
Indicators Contracts Contracts Contracts Contracts
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
17. Gross fair
values of
derivative
contracts:
a. Contracts
held for
trading: RCFD RCFD RCFD RCFD
---- ---- ---- ----
(1) Gross
positive
fair
value____8733.. 9,592 8734.. 5,435 8735.. 0 8736.. 0 17.a1
(2) Gross
negative
fair
value____8737.. 9,126 8738.. 4,494 8739.. 0 8740.. 0 17.a2
b. Contracts
held for
purposes
other than
trading that
are marked to
market:
(1) Gross
positive
fair
value____8741.. 0 8742.. 0 8743.. 0 8744.. 0 17.b1
(2) Gross
negative
fair
value____8745.. 0 8746.. 0 8747.. 0 8748.. 0 17.b2
c. Contracts
held for
purposes
other than
trading that
are not
marked
to market:
(1) Gross
positive
fair
Value____8749.. 14,172 8750.. 0 8751.. 0 8752.. 0 17.c1
(2) Gross
negative
fair
value____8753.. 67,038 8754.. 0 8755.. 0 8756.. 0 17.c2
Memoranda
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
RCFD
----
1.-2. Not applicable____________________________________________________________________ ... . . . . .
3. Unused commitments with an original maturity exceeding one year that are reported
in Schedule RC-L, items 1.a through 1.e, above (report only the unused portions of
commitments that are fee paid or otherwise Legally binding)__________________________3833.. 3,467,678 M.3
a. Participations in commitments with an original RCFD
maturity exceeding one year conveyed to others_____3834 50,917 . . . . . . M.3a
4. To be completed only by banks with $1 billion or more in total assets:
Standby Letters of credit and foreign office guarantees (both financial and
performance) issued to non-U.S. addressees (domicile) included in Schedule RC-L,
items 2 and 3, above_________________________________________________________________3377.. N/A M.4
5. installment loans to individuals for household, family, and other personal
expenditures that have been securitized and sold without recourse (with servicing
retained), amounts outstanding by type of loan:
a. Loans to purchase private passenger automobiles (to be completed for the September
report only)______________________________________________________________________2741.. N/A M.5.a
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY)________________________2742.. 0 M.5.b
c. ALL other consumer installment credit (including mobile home loans)(to be completed
for the September report only_____________________________________________________2743.. N/A M.5.c
</TABLE>
<PAGE> 32
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 17
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
27
Transit Number: 91000019
Schedule RC-M - Memoranda
C465 <-
___________________________________________________________________________________________________________________________________
Dollar Amounts in Thousands
<S> <C> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers,
directors, principal shareholders, and their related interests as of the
report date:
a. Aggregate amount of all extensions of credit to all executive officers, RCFD
directors, principal shareholders, and their related interests_______________________6164 .. 36,688 l.a
b. Number of executive officers, directors, and principal shareholders to
whom the amount of all extensions of credit by the reporting bank
(including extensions of credit to related interests) equals or exceeds the
lesser of $ 500,000 or 5 percent of total capital RCFD Number
as defined for this purpose in agency regulations - 6165 .. 7 . . . . . . l.b
2. Federal funds sold and securities purchased under agreements to resell with
U.S. branches and agencies of foreign banks (1) (included in Schedule RC,
items 3.a and 3.b)__________________________________________________________________ 3405 .. 0 2.
3. Not applicable.
4. Outstanding principal balance of 1-4 family residential mortgage Loans
serviced for others (include both retained servicing and purchased
servicing):
a. Mortgages serviced under a GNMA contract_________________________________________5500 .. 0 4.a
b. Mortgages serviced under a FHLMC contract:
(1) Serviced with recourse to servicer___________________________________________5501 .. 0 4.b.1
(2) Serviced without recourse to servicer________________________________________5502 .. 0 4.b.2
c. Mortgages serviced under a FNMA contract:
(1) Serviced under a regular option contract_____________________________________5503 .. 0 4.c.1
(2) Serviced under a special option contract_____________________________________5504 .. 0 4.c.2
d. Mortgages serviced under other servicing contracts_______________________________5505 .. 356,752 4.d
5. To be completed only by banks with $1 billion or more in total assets:
Customers, liability to this bank on acceptances outstanding (sum of items 5.a and 5.b
must equal Schedule RC, item 9):
a. U.S. addressees (domicile)_________________________________________________________2103 .. 32,497 5.a
b. Non-U.S. addressees (domicile)_____________________________________________________2104 .. 8,733 5.b
6. Intangible assets:
a. Mortgage servicing rights__________________________________________________________3164 .. 0 6.a
b. Other identifiable intangible assets:
(1) Purchased credit card relationships_____________________________________________5506 .. 0 6.b.1
(2) All other identifiable intangible assets________________________________________5507 .. 448 6.b.2
c. Goodwill___________________________________________________________________________3163 .. 13,368 6.c
d. Total (sum of item 6.a through 6.c) (must equal Schedule RC, item 10)______________2143 .. 13,816 6.d
e. Amount of intangible assets (included in item 6.b.(2) above) that have been
grandfathered or are otherwise qualifying for regulatory capital purposes__________6442 .. 0 6.e
7. Mandatory convertible debt, net of common or perpetual preferred stock dedicated to
redeem the debt_______________________________________________________________________3295 .. 0 7.
<FN>
_______________
(1) Do not report federal funds sold and securities purchased under agreements
to resell with other commercial banks in the U.S. in this item.
</TABLE>
<PAGE> 33
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 18
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
28
Transit Number: 91000019
Schedule RC-M - Continued
___________________________________________________________________________________________________________________________________
Dollar Amounts in Thousands
<S> <C> <C> <C>
RCFD
----
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: RCON
(a) Construction and land development in domestic offices_____________________ 5508 .. 0 8.a.2a
(b) Farmland in domestic offices______________________________________________ 5509 .. 0 8.a.2b
(c) 1-4 family residential properties in domestic offices_____________________ 5510 .. 5,416 8.a.2c
(d) Multifamily (5 or more) residential properties in domestic offices________ 5511 .. 0 8.a.2d
(e) Nonfarm nonresidential properties in domestic offices_____________________ 5512 .. 127 8.a.2e
(f) In foreign RCFN
offices___________________________________________________________________ 5513 .. 0 8.a.2f
(3) Total (sum of items 8.a.(l) and 8.a.(2)) RCFD
(must equal Schedule RC, item 7)_______________________________________________ 2150 .. 5,543 B.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.(l) and 8.b.(2)) (must equal Schedule RC, item 8)____ 2130 .. 0 8.b.3
c. Total assets of unconsolidated subsidiaries and associated companies_____________ 5376 .. 0 8.c
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC,
item 23, "Perpetual preferred stock and related surplus"______________________________ 3778 .. 0 9.
10. Mutual fund and annuity sales in domestic offices during the quarter
(include proprietary, private label, and third party mutual funds):
RCON
a. Money market funds________________________________________________________________ 6441 .. 3,365,630 10.a
b. Equity securities funds____________________________________________________________8427 .. 0 10.b
c. Debt securities funds______________________________________________________________8428 .. 0 10.c
d. Other mutual funds_________________________________________________________________8429 .. 30,806 10.d
e. Annuities__________________________________________________________________________8430 .. 13,693 10.e
f. Sales of proprietary mutual funds and annuities (included in items 10.a through
10.e above)______________________________________________________________________ 8784 .. 3,019,944 10.f
Memorandum
___________________________________________________________________________________________________________________________________
Dollar Amounts in Thousands
1. Interbank holdings of capital instruments (to be completed for the December report onLy):
RCFD
a. Reciprocal holdings of banking organizations, capital instruments_________________ 3836 .. N/A M.l.a
b. Nonreciprocal holdings of banking organizations' capital instruments______________ 3837 .. N/A M.l.b
</TABLE>
<PAGE> 34
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. CALL Date: 09/30/96 ST-SK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 19
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
29
Transit Number: 91000019
Schedule RC-N - Past Due and Nonaccrual Loans, Leases, and Other Assets
The FFIEC regards the information reported in all of Memorandum item 1, in items 1 through 10, column A, and in
Memorandum items 2 through 4, column A, as confidential.
C470 <-
___________________________________________________________________________________________________________________________________
Dollar Amounts in Thousands
<S> <C> <C> <C> <C> <C> <C>
-------(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
----------------------- ----------------------- ---------------------------
1. Loans secured by real estate: RCFD RCFD RCFD
a. To U.S. addressees (domicile)________________1245.. 30,342 1246.. 1,293 1247.. 7,755 1.a
b. To non-U.S. addressees (domicile)____________1248.. 0 1249.. 0 1250.. 0 1.b
2. Loans to depository institutions and
acceptances of other banks:
a. To U.S. banks and other U.S.
depository institutions______________________5377.. 0 5378.. 0 5379.. 0 2.a
b. To foreign banks_____________________________5380.. 0 5381.. 0 5382.. 0 2.b
3. Loans to finance agricultural production
and other loans to farmers______________________1594.. 0 1597.. 0 1583.. 6 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)________________1251.. 46,986 1252.. 144 1253.. 11,218 4.a
b. To non-U.S. addressees (domicile)____________1254.. 0 1255.. 0 1256.. 0 4.b
5. Loans to individuals for household,
family, and other personal expenditures:
a. Credit cards and related plans_______________5383.. 167 5384.. 689 5385.. 0 5.a
b. Other (includes single payment,
installment, and all student loans)__________5386.. 16,052 5387.. 4,303 5388.. 126 5.b
6. Loans to foreign governments and
official institutions___________________________5389.. 0 5390.. 0 5391.. 0 6.
7. All other Loans_________________________________5459.. 13 5460.. 116 5461.. 7,814 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile)________________1257.. 0 1258.. 0 1259.. 16,469 8.a
b. Of non-U.S. addressees (domicile)____________1271.. 0 1272.. 0 1791.. 0 8.b
9. Debt securities and other assets (exclude
other real estate owned and other
repossessed assets)_____________________________3505.. 0 3506.. 0 3507.. 0 9.
===================================================================================================================================
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and
leases. Report in item 10 below certain guaranteed loans and leases that have already been included in the amounts reported in items
1 through 8.
10. Loans and leases reported in items 1
through 8 above which are wholly or
partially guaranteed by the U.S. RCFD RCFD RCFD
Government____________________________________5612.. 1,472 5613.. 87 5614.. 403 l0.
a. Guaranteed portion of loans and leases
included in item 10 above__________________5615.. 1,189 5616.. 57 5617.. 248 10.a
</TABLE>
<PAGE> 35
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. CALL Date: 09/30/96 ST-SK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 20
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
30
Transit Number: 91000019
Schedule RC-N - Continued
C473 <-
Memoranda
___________________________________________________________________________________________________________________________________
Dollar Amounts in Thousands
<S> <C> <C> <C> <C> <C> <C>
-------(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
----------------------- ----------------------- ---------------------------
1. Restructured loans and leases included in
Schedule RC-N, items 1 through 8, above
(and not reported in Schedule RC-C, RCFD RCFD RCFD
Part I, Memorandum item 2)______________________1658.. 0 1659.. 0 1661.. 0 M.1
2. Loans to finance commercial real estate,
construction, and land development
activities (not secured by real estate)
included in Schedule RC-N, items 4 and
7, above_________________________________________6558.. 0 6559.. 0 6560.. 0 M.2
3. Loans secured by real estate in domestic
offices (included in Schedule RC-N, item
1, above): RCON RCON RCON
a. Construction and land development_____________2759.. 30 2769.. 0 3492.. 25 M.3a
b. Secured by farmyard___________________________3493.. 0 3494.. 0 3495.. 0 M.3b
c. Secured by 1-4 family residential
properties:
(1) Revolving, open-end loans secured
by 1-4 family residential properties
and extended under lines of credit________5398.. 49 5399.. 93 5400.. 0 M.3c1
(2) All other loans secured by 1-4
family residential properties_____________5401.. 18,355 5402.. 1,123 5403.. 5,526 M.3c2
d. Secured by multifamily (5 or more)
residential properties________________________3499.. 0 3500.. 0 3501.. 647 M.3d
e. Secured by nonfarm nonresidential
properties____________________________________3502.. 11,908 3503.. 77 3504.. 1,557 M.3e
-------(Column A)------- ------(Column B) -------
Past due 30 through 89 Past due 90 days or more
days
----------------------- -----------------------
<S> <C> <C> <C> <C>
4. Interest rate, foreign exchange rate, and
other commodity and equity contracts:
a. Book value of amounts carried as RCFD RCFD
assets________________________________________3522.. 0 3528.. 0 M.4.a
b. Replacement cost of contracts with a
positive replacement cost_____________________3529.. 0 3530.. 0 M.4.b
</TABLE>
<PAGE> 36
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 21
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
31
Transit Number: 91000019
Schedule RC-O - Other Data for Deposit Insurance Assessments
C475 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <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.bl
(2) Actual amount of unposted debits to time and savings deposits (1)_______________ 0032. . 0 1.b2
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.b1
(2) Actual amount of unposted credits to time and savings deposits (1)______________ 35l4. . 0 2.b2
3. Uninvested trust funds (cash) held in bank's own trust department (not included in
total deposits in domestic offices)____________________________________________________ 3520. . 0 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in
Puerto Rico and U.S. territories and possessions (not included in total deposits):
a. Demand deposits of consolidated subsidiaries________________________________________ 2211. . 19,716 4.a
b. Time and savings deposits (1) of consolidated subsidiaries__________________________ 2351. . 0 4.b
c. Interest accrued and unpaid on deposits of consolidated subsidiaries________________ 5514. . 0 4.c
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions:
a. Demand deposits in insured branches (included in Schedule RC-E, Part II)____________ 2229. . 0 5.a
b. Time and savings deposits (1) in insured branches (included in Schedule RC-E,
Part II)____________________________________________________________________________ 2383. . 0 5.b
c. Interest accrued and unpaid on deposits in insured branches (included in
Schedule RC-G, item 1.b)____________________________________________________________ 5515. . 0 5.c
Item 6 is not applicable to state nonmember banks that have not been authorized by the
Federal Reserve to act as pass-through correspondents.
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on
behalf of its respondent depository institutions that are also reflected as deposit
liabilities of the reporting bank: RCON
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, item ----
4 or 5, column B)___________________________________________________________________ 2314. . 375 6.a
b. Amount reflected in time and savings deposits (1) (included in Schedule RC-E,
Part I, item 4 or 5, column A or C, but not column B)_______________________________ 2315. . 0 6.b
7. Unamortized premiums and discounts on time and savings deposits:(1)
a. Unamortized premiums________________________________________________________________ 5516. . 46 7.a
b. Unamortized discounts_______________________________________________________________ 5517. . 84,070 7.b
8. To be completed by banks with "Oakar deposits."
Total "Adjusted Attributable Deposits" of all institutions acquired under
Section 5(d)(3) of the Federal Deposit Insurance Act (from most recent FDIC Oakar
Transaction Worksheet(s))______________________________________________________________ 5518. . 2,403,177 8.
9. Deposits in lifeline accounts__________________________________________________________ . . . . . . . . . 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total
deposits in domestic offices)_________________________________________________________ 8432. . 0 10.
</TABLE>
- --------------
[FN]
(1) For FDIC insurance assessment purposes, "time and savings deposits" consists
of nontransaction accounts and all transaction accounts other than demand
deposits.
<PAGE> 37
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 22
Minneapolis, MN 55479 Vendor ID: D CERT: 05208 32
Transit Number: 91000019
Schedule RC-O - Continued
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <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
Memoranda
(to be completed each quarter except as noted) Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
1. Total deposits in domestic offices of the bank
(sum of Memorandum item 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. . 5,045,562 M.1a1
RCON Number
(2) Number of deposit accounts of $100,000 or less ---- ------
(to be completed for the June report only)__________ 3779. . N/A . . . . . . . . . . . M.1a2
b. Deposit accounts of more than $100,000:
(1) Amount of deposit accounts of more than $100,000_______________________________ 2710. . 3,166,985 M.1b1
RCON Number
(2) Number of deposit accounts of more than ---- ------
$100,000 2722. . 6,225 . . . . . . . . . . . M.1b2
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by multiplying the number of
deposit accounts of more than $100,000 reported in Memorandum item 1.b.(2) above by $100,000
and subtracting the result from the amount of deposit accounts of more than $100,000 reported
in Memorandum item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a method or RCON
procedure for determining a better estimate of uninsured deposits than the ---- YES NO
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
C477 <-
- -----------------------------------------------------------------------------------------------------------------------------------
Person to whom questions about the Reports of Condition and Income should be directed:
(612) 667-8147
BRIAN BARNETT, MANAGER OF BANK ACCOUNTING
- -----------------------------------------------------------------------------------------------------------------------------------
Name and Title (TEXT 8901) Area code/phone number/extension (TEXT 8902)
</TABLE>
<PAGE> 38
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. CALL Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 23
Minneapolis, MN 55479 Vendor ID: D CERT: 05208 33
Transit Number: 91000019
[24~
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 C480 <-
appropriate box at the right whether the bank has total capital greater than or equal RCFD YES NO
to eight percent of adjusted total assets ___________________________________________ ---- --- --
For purposes of this test, adjusted total assets equals total assets 6056 N/A 1.
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.
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
NOTE: All banks are required to complete (column A) (column B)
items 2 and 3 below. see optional Subordinated Debt (1) and
worksheet for items 3.a through 3.f. Intermediate Term Other Limited-Life
Preferred Stock Capital Instruments
-------------------------- ----------------------------
<S> <C> <C>
2. Subordinated debt(1) and other limited-life capital
instruments (original weighted average maturity of at RCFD RCFD
least five years) with a remaining maturity of: ---- ----
a. one year or less_________________________________________3780. . 8 3786. . 0 2.a
b. Over one year through two years__________________________3781. . 8 3787. . 0 2.b
c. Over two years through three years_______________________3782. . 8 3788. . 0 2.c
d. over three years through four years______________________3783. . 8 3789. . 0 2.d
e. Over four years through five years_______________________3784. . 8 3790. . 0 2.e
f. Over five years__________________________________________3785. . 155 3791. . 0 2.f
3. Amounts used in calculating regulatory capital ratios (report amountsts determined by
the bank for its own internal regulatory capital analyses consistent with applicable
capital standards): RCFD
a. Tier 1 capital____________________________________________________________________________8274. . 1,182,261 3.a
b. Tier 2 capital____________________________________________________________________________8275. . 150,139 3.b
c. Total risk-based capital__________________________________________________________________3792. . 1,132,400 3.c
d. Excess allowance for loan and lease losses________________________________________________A222. . 48,871 3.d
e. Risk-weighted assets (net of all deductions, including excess allowances)_________________A223. . 11,948,441 3.e
f. "Average total assets" (net of all assets deducted from Tier I capital) (2)_______________A224. . 16,485,212 3.f
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.
<CAPTION>
(Column A) (Column B)
Assets Recorded on the Credit Equivalent Amount
Balance Sheet of Off-Balance Sheet Items (3)
---------------------- ------------------------------
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. RCFD RCFD
Government and its agencies and other OECD ---- ----
central governments____________________________________3794. . 573,212 . . . . . 4.a.1
(2) All other______________________________________________3795. . 481,635 . . . . . 4.a.2
b. Credit equivalent amount of off-balance sheet items________ . . . . . . . . . . 3796. . 0 4.b
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not deduct excess allowance for loan and lease losses.
(3) Do not report in column B the risk-weighted amount of assets reported in
column A.
</TABLE>
<PAGE> 39
<TABLE>
<S> <C> <C> <C>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 24
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
34
Transit Number: 91000019
Schedule RC-R - Continued
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
-----------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Assets Recorded on the Credit Equivalent Amount
Balance Sheet of Off-Balance Sheet Items (1)
------------------------- ------------------------------
<S> <C> <C> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 20 percent risk category:
a. Assets recorded on the balance sheet:
(1) CLaims conditionally guaranteed by the U.S. RCFD RCFD
Government and its agencies and other OECD ---- ----
central governments___________________________________3798. . 506,378 . . . . . . 5.a.1
(2) CLaims collateralized by securities issued by
the U.S. Government and its agencies and other
OECD central goverrvwnts; by securities issued
by U.S. Government-sponsored agencies; and by
cash on deposit_______________________________________3799. . 0 . . . . . . 5.a.2
(3) All other_____________________________________________3800. . 6,508,173 . . . . . . 5.a.3
b. Credit equivalent amount of off-balance sheet items . . . . . . 3801. . 636,500 5.b
6. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 50 percent risk category:
a. Assets recorded an the balance sheet_____________________3802. . 1,999,577 . . . . . . 6.a
b. Credit equivalent amount of off-balance sheet items______ . . . . . . 3803. . 129,593 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. . 7,168,214 . . . . . . 7.a
b. Credit equivalent amount of off-balance sheet items______ . . . . . . 3805. . 2,248,038 7.b
8. On-balance sheet asset values excluded from the
calculation of the risk-based capital ratio(2)______________3806. . 20,588 . . . . . . 8.
9. Total assets recorded on the balance sheet (sum of
items 4.a, 5.a, 6.a, 7.a, and 8, column A) (must equal
Schedule RC, item 12 plus items 4.b and 4.c)________________3807. . 17,257,777 . . . . . . 9.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
----------------------------------------------------------------------------------------------------------------------------------
1. Current credit exposure across all off-balance sheet derivative contracts covered by RCFD
----
the risk-based capital standards_______________________________________________________________8764. . 28,461 M.1.
------------------------------------ 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> <C> <C> <C> <C>
2. Notional principal amounts
of off-balance sheet
derivative contracts:(3) RCFD RCFD RCFD
a. Interest rate ---- ---- ----
contracts__________________3809.. 2,301,747 8766.. 1,145,935 8767.. 592,182 M.2a
b. Foreign exchange
contracts__________________3812.. 567,541 8769.. 14,237 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
a. Other coffmodity
contracts__________________8777.. N/A 8778.. N/A 8779.. N/A M.2e
f. Equity derivative
contracts__________________A000.. N/A A00l.. N/A A002.. N/A M.2f
<FN>
(1) Do not report in column 8 the risk-weighted amount of assets reported in column A.
(2) Include the difference between the fair value and the amortized cost of
availabte-for-sate 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 not included
in the calculation of credit equivalent amounts of off-belance sheet
derivatives as well as any portion of the allowance for loan and lease
losses in excess of the amount that may be included in Tier 2 capital.
(3) Exclude foreign exchange contracts with an original maturity of 14 days or
less and all futures contracts.
</TABLE>
<PAGE> 40
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 25
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
35
Transit Number: 91000019
</TABLE>
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on September 30, 1996
<TABLE>
<S> <C> <C>
Norwest Bank Minnesota, N.A. Minneapolis MN
------------------------------------------ -------------------------------------- ------------------------------
Legal Title of Rank City State
</TABLE>
The management of the reporting bank may, if it wishes, submit a brief
narrative statement on the amounts reported in the Reports of Condition and
Income. This optional statement will be made available to the public, along
with the publicly available data in the Reports of Condition and income, in
response to any request for individual bank report data. However,
the information reported in column A and in all of Memorandum item 1 of
Schedule RC-N is regarded as confidential and will not be released to the
public. BANKS CHOOSING TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE
THAT THE STATEMENT DOES NOT CONTAIN THE NAMES OR OTHER IDENTIFICATIONS OF
INDIVIDUAL BANK CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE
CONFIDENTIAL ITEMS IN SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY
ARE NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD COMPROMISE THE PRIVACY OF
THEIR CUSTOMERS. Banks choosing not to make a statement may check the "No
comment" box below and should make no entries of any kind in the space
provided for the narrative statement; i.e., DO NOT enter in this space such
phrases as "No statement," "Not appLicabLe," "N/A," "No comment," and "None."
The optional statement must be entered on this sheet. The statement should
not exceed 100 words. Further, regardless of the number of words, the
statement must not exceed 750 characters, including punctuation, indentation,
and standard spacing between words and sentences. If any submission should
exceed 750 characters, as defined, it will be truncated at 750 characters
with no notice to the submitting bank and the truncated statement will appear
as the bank's statement both on agency computerized records and in
computer-file releases to the public.
All information furnished by the bank in the narrative statement must be
accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statement's accuracy. The statement must be
signed, in the space provided below, by a senior officer of the bank who
thereby attests to its accuracy.
If, subsequent to the original submission, material changes are submitted for
the data reported in the Reports of Condition and Income, the existing
narrative statement will be deleted from the files, and from disclosure; the
bank, at its option, may replace it with a statement, under signature,
appropriate to the amended data.
The optional narrative statement will appear in agency records and in
release to the public exactly as submitted (or amended as described in the
preceding paragraph) by the management of the bank (except for the
truncation of statements exceeding the 750-character Limit described
above). THE STATEMENT WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE
SUPERVISORY AGENCIES FOR ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT
SHALL NOT SIGNIFY THAT ANY FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR
CONFIRMED THE ACCURACY OF THE INFORMATION CONTAINED THEREIN. A STATEMENT TO
THIS EFFECT WILL APPEAR ON ANY PUBLIC RELEASE OF THE OPTIONAL STATEMENT
SUBMITTED BY THE MANAGEMENT OF THE REPORTING BANK.
----------------------------------------------------------------------------
No comment: X (RCON 6979) C471 C472 <-
BANK MANAGEMENT STATEMENT (please type or print clearly) (TEXT 6980):
-------------------------------------- ---------------------
Signature of Executive Officer of Bank Date of Signature
<PAGE> 41
<TABLE>
<CAPTION>
Norwest Bank Minnesota, N.A. Call Date: 09/30/96 ST-BK: 27-4095 FFIEC 031
Sixth Street and Marquette Avenue Page RC- 26
Minneapolis, MN 55479 Vendor ID: D CERT: 05208
Transmit Number: 91000019 36
THIS PAGE IS 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:
September 30, 1996 05208 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 its 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.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
RCFD
----
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.
--------------------------------------------------------------------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT DATE (Month, Day, Year)
Mark P. Wagener
/s/ Mark P. Wagener Director of Bank & Service Accounting 10/29/96
---------------------------------------------------------------------------------- ------------------------------------
NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED: (TEXT 8903) AREA CODE/PHONE NUMBER/EXTENSION:
(TEXT 8904)
(612) 667 - 8147
BRIAN BARNETT, MANAGER OF BANK ACCOUNTING
--------------------------------------------------------------------------------------------------------------------------------
FDIC 8040/53 (6-95)
</TABLE>
