-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D8oD7cDbmga2h0t7ltELeWfhcZIl8YVK7C87mqNITs+dYScHJq4EonN+etpmU37A 4pqKzWl+I3mO2XJZpbUkkg== 0000930661-96-001050.txt : 19960816 0000930661-96-001050.hdr.sgml : 19960816 ACCESSION NUMBER: 0000930661-96-001050 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19960814 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ELECTRONIC DATA SYSTEMS CORP /DE/ CENTRAL INDEX KEY: 0001007456 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 752548221 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-10145 FILM NUMBER: 96612930 BUSINESS ADDRESS: STREET 1: 5400 LEGACY DR STREET 2: H3-3D-05 CITY: PLANO STATE: TX ZIP: 75024 BUSINESS PHONE: 2146055491 MAIL ADDRESS: STREET 1: 5400 LEGACY DRIVE STREET 2: H3-3D-05 CITY: PLANO STATE: TX ZIP: 75024 FORMER COMPANY: FORMER CONFORMED NAME: ELECTRONIC DATA SYSTEMS HOLDING CORP DATE OF NAME CHANGE: 19960208 S-3 1 FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 14, 1996 REGISTRATION STATEMENT NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549-1004 ------------ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ ELECTRONIC DATA SYSTEMS CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 75-2548221 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 5400 LEGACY DRIVE, PLANO, TEXAS 75024-3199; (214) 604-6000 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ------------ JOSEPH M. GRANT CHIEF FINANCIAL OFFICER ELECTRONIC DATA SYSTEMS CORPORATION 5400 LEGACY DRIVE PLANO, TEXAS 75024-3199 (214) 604-6000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPY TO: D. GILBERT FRIEDLANDER ELECTRONIC DATA SYSTEMS CORPORATION 5400 LEGACY DRIVE PLANO, TX 75024-3199 ------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. /_/ If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. /_/ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. /_/ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. /X/ CALCULATION OF REGISTRATION FEE ================================================================================ PROPOSED MAXIMUM TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF SECURITIES TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE - -------------------------------------------------------------------------------- Debt Securities (2) $2,000,000,000 $689,655.17 ================================================================================ (1) Estimated solely for the purpose of calculating the registration fee. (2) There are being registered hereunder an indeterminate principal amount of Debt Securities as may be sold from time to time by the Registrant. If any Debt Securities are being issued at an original issue discount, then the offering price shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $2,000,000,000 less the dollar amount of any securities previously issued hereunder. In no event will the aggregate initial offering price of all securities issued from time to time pursuant to this Registration Statement exceed $2,000,000,000, in U.S. dollars or equivalent thereof. ------------ 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. ================================================================================ ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 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 BY ANY SALE OF THESE SECURUTIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. ================================================================================ SUBJECT TO COMPLETION, DATED AUGUST 14, 1996 PROSPECTUS ELECTRONIC DATA SYSTEMS CORPORATION DEBT SECURITIES ------------------------------------------- Electronic Data Systems Corporation ("EDS") may offer and sell from time to time, at prices and on terms to be determined at or prior to the time of sale, its debt securities consisting of debentures, notes or other unsecured evidences of indebtedness (the "Debt Securities") with an aggregate initial offering price not to exceed U.S. $2,000,000,000. The Debt Securities may be offered separately or together, in separate series, in amounts, at prices and on terms to be determined at the time of sale. The Debt Securities may be sold for U.S. dollars or one or more foreign currency units or composite currencies and the principal of, premium, if any, and interest, if any, on the Debt Securities may likewise be payable in U.S. dollars or one or more foreign currency units or composite currencies. The terms of the Debt Securities, including where applicable the specific designation, aggregate principal amount, denominations, ranking, maturity, rate (which may be fixed or variable) and time of payment of interest, if any, purchase price, any terms for mandatory redemption or redemption at the option of EDS or the holder, the currency or currency unit in which principal, premium or interest is payable, any terms for exchangeability, sinking fund payments, prepayment, the initial public offering price, and the names of any underwriters or agents, the principal amounts, if any, to be purchased by underwriters, the compensation, if any, of such underwriters or agents, and any other terms in connection with the offering and sale of the Debt Securities in respect of which this Prospectus is being delivered, will be set forth in an accompanying Prospectus Supplement (the "Prospectus Supplement"). EDS may sell the Debt Securities to underwriters, to or through dealers acting as principals for their own account or acting as agents, through agents designated from time to time, or directly to other purchasers. EDS may indemnify such underwriters, dealers and agents against certain liabilities, including liabilities under the Securities Act of 1933. See "Plan of Distribution." THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF THE DEBT SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. ___________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ___________________ The date of this Prospectus is August , 1996 NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR IN AN APPLICABLE PROSPECTUS SUPPLEMENT IN CONNECTION WITH ANY OFFER MADE BY THIS PROSPECTUS AND SUCH PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY EDS OR ANY UNDERWRITER, DEALER, AGENT OR OTHER PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALES MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF EDS SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OF SOLICITATION IN SUCH JURISDICTION. AVAILABLE INFORMATION EDS is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information filed by EDS with the Commission can be inspected, and copies may be obtained, at the Public Reference Section of the Commission, Judiciary Plaza, 450 Fifth Street N.W., Washington D.C. 20549, at prescribed rates, as well as at the following Regional Offices of the Commission: Seven World Trade Center, New York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Such reports, proxy statements and other information may also be obtained from the web site that the Commission maintains at http://www.sec.gov. Reports, proxy statements and other information concerning EDS can also be inspected at the offices of the New York Stock Exchange, Inc. (the "NYSE"), 20 Broad Street, New York, New York 10005, and can also be obtained electronically through a variety of databases, including, among others, the Commission's Electronic Data Gathering And Retrieval ("EDGAR") program, Knight-Ridder Information, Inc., Federal Filings/Dow Jones and Lexis/Nexis. This Prospectus constitutes part of a Registration Statement on Form S-3 (together with all amendments, supplements and exhibits thereto, the "Registration Statement") filed by EDS with the Commission under the Securities Act of 1933, as amended (the "Securities Act"). Pursuant to the rules and regulations of the Commission, this Prospectus omits certain information contained in the Registration Statement. Such information can be inspected at and obtained from the Commission and the NYSE in the manner set forth above. For further information pertaining to EDS and the Debt Securities, reference is hereby made to the Registration Statement. Statements contained herein concerning any document filed as an exhibit to the Registration Statement are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement. Each such statement is qualified in its entirety by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by EDS with the Commission are hereby incorporated by reference in this Prospectus: (i) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996 and June 30, 1996; and (ii) Current Reports on Form 8-K dated April 23, 1996, June 7, 1996, June 18, 1996, and July 16, 1996. All documents filed by EDS with the Commission 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 Debt Securities shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. 2 EDS will provide without charge to each person to whom this Prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents which have been or may be incorporated by reference in this Prospectus, other than exhibits to such documents not specifically described above. Requests for such documents should be directed to Electronic Data Systems Corporation, Investor Relations, Mail Stop H3-6F-47, 5400 Legacy Drive, Plano, Texas, 75024-3199 (Telephone Number: (214) 604-6000). THE COMPANY EDS is a world leader in applying information technology ("IT"), with over 30 years of experience in using advanced computer and communications technologies to meet its clients' business needs. EDS offers its clients a continuum of services worldwide, including the management of computers, networks, information systems, information processing facilities, business operations and related personnel, providing to its clients advantages in cost- effectiveness, speed of implementation and state-of-the-art technology. In delivering this continuum of services, EDS generally performs one or more of five basic functions: management consulting services (through EDS' A.T. Kearney subsidiary); creation of IT systems; assembly of IT platforms; management of IT operations; and management of business operations. EDS is able to leverage its extensive technical infrastructure and other numerous resources to offer IT services at clients' sites or through large scale information processing centers or specialized distributed service centers located worldwide. EDS is incorporated under the laws of the State of Delaware. EDS' principal executive offices are located at 5400 Legacy Drive, Plano, Texas 75024, telephone number: (214) 604-6000. USE OF PROCEEDS Except as may be set forth in an applicable Prospectus Supplement accompanying this Prospectus, the net proceeds from the sale of the Debt Securities offered hereby will be used for general corporate purposes, which may include the reduction of short-term and other indebtedness, the financing of acquisitions and capital expenditures, and the financing of EDS' operations. RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth the ratio of earnings to fixed charges for EDS for the periods presented. The ratio has been computed by dividing the sum of earnings (loss) before income taxes (excluding the cumulative effect of an accounting change) and fixed charges (excluding capitalized interest) by fixed charges (including capitalized interest). Fixed charges consist of interest expense, interest capitalized (except as noted above) and a portion of rentals for real and personal property deemed to be representative of the interest component of rent expense. FOR THE SIX MONTHS ENDED FOR THE YEARS ENDED DECEMBER 31, JUNE 30, 1996 1995 1994 1993 1992 1991 (a) 5.24 6.61 5.93 4.67 4.73 ---- ---- ---- ---- ---- - ------------ (a) The deficiency in earnings to fixed charges for the six months ended June 30, 1996 was $162.6 million. Earnings before income taxes for such period include one-time charges of $850 million. 3 DESCRIPTION OF DEBT SECURITIES The following description summarizes certain general terms and provisions of the Debt Securities. The particular terms of the Debt Securities, including the nature of any variations from the following general provisions, will be described in the applicable Prospectus Supplement. Accordingly, for a description of the terms of a particular issue of Debt Securities, reference must be made to both the Prospectus Supplement relating thereto and to the following description. The Debt Securities, which will represent general unsecured obligations of EDS, may be issued in one or more series under an Indenture dated as of August 12, 1996 (the "Indenture") between EDS and Texas Commerce Bank National Association, as trustee (the "Trustee"). The Indenture has been filed with the Commission as an exhibit to the Registration Statement and is incorporated by reference herein. The following summary of certain provisions of the Indenture does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all provisions of the Indenture, including the definitions therein of certain terms. Unless otherwise defined herein, all capitalized terms shall have the definitions set forth in the Indenture. GENERAL The Indenture does not limit the aggregate principal amount of Debt Securities that may be issued thereunder. The Debt Securities may be issued from time to time in one or more series up to the aggregate principal amount which may be authorized from time to time by EDS. All Debt Securities will be unsecured and will rank pari passu with all other unsecured unsubordinated indebtedness of EDS. Except as described below, the Indenture does not limit the amount of other indebtedness or securities which may be issued by EDS or any of its subsidiaries or contain financial or similar restrictions on EDS or any of its subsidiaries. EDS' rights and the rights of its creditors, including holders of Debt Securities, to participate in any distribution of assets of any subsidiary upon the latter's liquidation or reorganization or otherwise are effectively subordinated to the claims of the subsidiary's creditors, except to the extent that EDS or any of its creditors may itself be a creditor of that subsidiary. Reference is made to the applicable Prospectus Supplement for the following terms of the Debt Securities of the series with respect to which such Prospectus Supplement is being delivered: (a) The title of the Debt Securities of the series; (b) Any limit on the aggregate principal amount of the Debt Securities of the series that may be authenticated and delivered under the Indenture; (c) The date or dates on which the principal and premium with respect to the Debt Securities of the series are payable; (d) The rate or rates (which may be fixed or variable) at which the Debt Securities of the series shall bear interest (if any) or the method of determining such rate or rates, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable or the method by which such dates will be determined, the record dates for the determination of holders thereof to whom such interest is payable (in the case of Registered Securities), and the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months; (e) The place or places, if any, in addition to or instead of the corporate trust office of the Trustee (in the case of Registered Securities) or the principal London office of the Trustee (in the case of Bearer Securities), where the principal, premium, and interest with respect to Debt Securities of the series shall be payable; 4 (f) The price or prices at which, the period or periods within which, and the terms and conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of EDS or otherwise; (g) Whether Debt Securities of the series are to be issued as Registered Securities or Bearer Securities or both and, if Bearer Securities are to be issued, whether coupons will be attached thereto, whether Bearer Securities of the series may be exchanged for Registered Securities of the series, and the circumstances under which and the places at which any such exchanges, if permitted, may be made; (h) If any Debt Securities of the series are to be issued as Bearer Securities or as one or more Global Securities representing individual Bearer Securities of the series, whether certain provisions of the payment of additional interest or tax redemptions shall apply; whether interest with respect to any portion of a temporary Bearer Security of the series payable with respect to any interest payment date prior to the exchange of such temporary Bearer Security for definitive Bearer Securities of the series shall be paid to any clearing organization with respect to the portion of such temporary Bearer Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the persons entitled to interest payable on such interest payment date; and the terms upon which a temporary Bearer Security may be exchanged for one or more definitive Bearer Securities of the series; (i) The obligation, if any, of EDS to redeem, purchase, or repay Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a holder thereof and the price or prices at which, the period or periods within which, and the terms and conditions upon which Debt Securities of the series shall be redeemed, purchased, or repaid, in whole or in part, pursuant to such obligations; (j) The terms, if any, upon which the Debt Securities of the series may be convertible into or exchanged for other Debt Securities or indebtedness or other securities of any kind of EDS or any other issuer or obligor, and the terms and conditions upon which such conversion or exchange shall be effected, including the initial conversion or exchange price or rate, the conversion or exchange period, and any other additional provisions; (k) If other than denominations of $1,000 or any integral multiple thereof, the denominations in which Debt Securities of the series shall be issuable; (l) If the amount of principal, premium, or interest with respect to the Debt Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts will be determined; (m) If the principal amount payable at the stated maturity of Debt Securities of the series will not be determinable as of any one or more dates prior to such stated maturity, the amount that will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the stated maturity or which will be deemed to be outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined), and if necessary, the manner of determining the equivalent thereof in United States currency; (n) Any changes or additions to the provisions of the Indenture dealing with defeasance, including the addition of additional covenants that may be subject to EDS' covenant defeasance option; (o) If other than such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts, the coin or currency or currencies or units of two or more 5 currencies in which payment of the principal, premium, and interest with respect to Debt Securities of the series shall be payable; (p) If other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series that shall be payable upon declaration of acceleration of the maturity thereof or provable in bankruptcy; (q) Any addition to or change in the Events of Default with respect to the Debt Securities of the series and any change in the right of the Trustee or the holders to declare the principal, premium, and interest with respect to such Debt Securities due and payable; (r) If the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security, the terms and conditions, if any, upon which such Global Security may be exchanged in whole or in part for other individual Debt Securities in definitive registered form, the Depositary for such Global Security, and the form of any legend or legends to be borne by any such Global Security in addition to or in lieu of the legend referred to in the Indenture; (s) Any addition to or change in the covenants and definitions then set forth in the Indenture or in the terms then set forth in the Indenture relating to permitted consolidations, mergers, or sales of assets; (t) With regard to Debt Securities of the series that do not bear interest, the dates for certain required reports to the Trustee; and (u) Any other terms of the Debt Securities of the series (which terms shall not be prohibited by the provisions of the Indenture). The Prospectus Supplement will also describe any material United States federal income tax consequences or other special considerations applicable to the series of Debt Securities to which such Prospectus Supplement relates, including those applicable to (a) Bearer Securities, (b) Debt Securities with respect to which payments of principal, premium, or interest are determined with reference to an index or formula (including changes in prices of particular securities, currencies, or commodities), (c) Debt Securities with respect to which principal, premium, or interest is payable in a foreign or composite currency, (d) Debt Securities that are issued at a discount below their stated principal amount, bearing no interest or interest at a rate that at the time of issuance is below market rates ("Original Issue Discount Debt Securities"), and (e) variable rate Debt Securities that are exchangeable for fixed rate Debt Securities. Payments of interest on Registered Securities may be made at the option of EDS by check mailed to the registered holders thereof or, if so provided in the applicable Prospectus Supplement, at the option of a holder by wire transfer to an account designated by such holder. Except as otherwise provided in the applicable Prospectus Supplement, no payment on a Bearer Security will be made by mail to an address in the United States or by wire transfer to an account in the United States. Unless otherwise provided in the applicable Prospectus Supplement, Registered Securities may be transferred or exchanged at the office of the Trustee at which its corporate trust business is principally administered in the United States or at the office of the Trustee or the Trustee's agent in the Borough of Manhattan, the City and State of New York, at which its corporate agency business is conducted, subject to the limitations provided in the Indenture, without the payment of any service charge, other than any tax or governmental charge payable in connection therewith. Bearer Securities will be transferable only by delivery. Provisions with respect to the exchange of Bearer Securities will be described in the Prospectus Supplement relating to such Bearer Securities. All funds paid by EDS to a payment agent for the payment of principal, premium, or interest with respect to any Debt Securities that remain unclaimed at the end of two years after such principal, premium, or interest shall 6 have become due and payable will be repaid to EDS, and the holders of such Debt Securities or any coupons appertaining thereto will thereafter look only to EDS for payment thereof. GLOBAL SECURITIES The Debt Securities of a series may be issued in whole or in part in the form of one or more Global Securities. A Global Security is a Debt Security that represents, and is denominated in an amount equal to the aggregate principal amount of, all outstanding Debt Securities of a series, or any portion thereof, in either case having the same terms, including the same original issue date, date or dates on which principal and interest are due, and interest rate or method of determining interest. A Global Security will be deposited with, or on behalf of, a Depositary, which will be identified in the Prospectus Supplement relating to such Debt Securities. Global Securities may be issued in either registered or bearer form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for the individual Debt Securities represented thereby, a Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary, or by the Depositary or any nominee of the Depositary to a successor Depositary or any nominee of such successor. The specific terms of the depositary arrangement with respect to a series of Debt Securities will be described in the Prospectus Supplement relating to such Debt Securities. EDS anticipates that the following provisions will generally apply to depositary arrangements. Upon the issuance of a Global Security, the Depositary for such Global Security will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual Debt Securities represented by such Global Security to the accounts of persons that have accounts with the Depositary ("participants"). Such accounts shall be designated by the dealers or underwriters with respect to such Debt Securities or, if such Debt Securities are offered and sold directly by EDS or through one or more agents, by EDS or such agents. Ownership of beneficial interests in a Global Security will be limited to participants or persons that hold beneficial interests through participants. Ownership of beneficial interests in such Global Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the Depositary (with respect to interests of participants) or records maintained by participants (with respect to interest of persons other than participants). The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limitations and laws may impair the ability to transfer beneficial interests in a Global Security. So long as the Depositary for a Global Security, or its nominee, is the registered owner or holder of such Global Security, such Depositary or nominee, as the case may be, will be considered the sole owner or holder of the individual Debt Securities represented by such Global Security for all purposes under the Indenture. Except as provided below, owners of beneficial interests in a Global Security will not be entitled to have any of the individual Debt Securities represented by such Global Security registered in their names, will not receive or be entitled to receive physical delivery of any of such Debt Securities in definitive form, and will not be considered the owners or holders thereof under the Indenture. Subject to the restrictions described under "-- Limitations on Issuance of Bearer Securities," payments of principal, premium, and interest with respect to individual Debt Securities represented by a Global Security will be made to the Depositary or its nominee, as the case may be, as the registered owner or holder of such Global Security. Neither EDS, the Trustee, any paying agent or registrar for such Debt Securities, or any agent of EDS or the Trustee will have any responsibility or liability for (a) any aspect of the records relating to or payments made by the Depositary, its nominee, or any participants on account of beneficial interests in the Global Security or for maintaining, supervising, or reviewing any records relating to such beneficial interests, (b) the payment to the owners of beneficial interests in the Global Security of amounts paid to the Depositary or its nominee, or (c) any other matter relating to the actions and practices of the Depositary, its nominee, or its participants. Neither EDS, the Trustee, any paying agent or registrar for such Debt Securities, or any agent of EDS or the Trustee will be liable for any delay by the Depositary, its nominee, or any of its participants in identifying the owners of beneficial interests 7 in the Global Security, and EDS and the Trustee may conclusively rely on, and will be protected in relying on, instructions from the Depositary or its nominee for all purposes. EDS expects that the Depositary for a series of Debt Securities or its nominee, upon receipt of any payment of principal, premium, or interest with respect to a definitive Global Security representing any of such Debt Securities, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such Global Security, as shown on the records of the Depositary or its nominee. EDS also expects that payments by participants to owners of beneficial interests in such Global Security held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers and registered in "street name." Such payments will be the responsibility of such participants. Receipt by owners of beneficial interests in a temporary Global Security of payments of principal, premium, or interest with respect thereto will be subject to the restrictions described under "-- Limitations on Issuance of Bearer Securities." If the Depositary for a series of Debt Securities is at any time unwilling, unable, or ineligible to continue as depositary, EDS shall appoint a successor depositary. If a successor depositary is not appointed by EDS within 90 days, EDS will issue individual Debt Securities of such series in exchange for the Global Security representing such series of Debt Securities. In addition, EDS may at any time and in its sole discretion, subject to any limitations described in the Prospectus Supplement relating to such Debt Securities, determine no longer to have Debt Securities of a series represented by a Global Security and, in such event, will issue individual Debt Securities of such series in exchange for the Global Security representing such series of Debt Securities. Furthermore, if EDS so specifies with respect to the Debt Securities of a series, an owner of a beneficial interest in a Global Security representing Debt Securities of such series may, on terms acceptable to EDS, the Trustee, and the Depositary for such Global Security, receive individual Debt Securities of such series in exchange for such beneficial interests, subject to any limitations described in the Prospectus Supplement relating to such Debt Securities. In any such instance, an owner of a beneficial interest in a Global Security will be entitled to physical delivery of individual Debt Securities of the series represented by such Global Security equal in principal amount to such beneficial interest and to have such Debt Securities registered in its name (if the Debt Securities are issuable as Registered Securities). Individual Debt Securities of such series so issued will be issued (a) as Registered Securities in denominations, unless otherwise specified by EDS, of $1,000 and integral multiples thereof if the Debt Securities are issuable as Registered Securities, (b) as Bearer Securities in the denomination or denominations specified by EDS if the Debt Securities are issuable as Bearer Securities, or (c) as either Registered Securities or Bearer Securities as described above if the Debt Securities are issuable in either form. See, however, "-- Limitations on Issuance of Bearer Securities" for a description of certain restrictions on the issuance of individual Bearer Securities in exchange for beneficial interests in a bearer Global Security. LIMITATIONS ON ISSUANCE OF BEARER SECURITIES The Debt Securities of a series may be issued as Registered Securities (which will be registered as to principal and interest in the register maintained by the registrar for such Debt Securities) or Bearer Securities (which will be transferable only by delivery). If such Debt Securities are issuable as Bearer Securities, certain special limitations and considerations will apply. In compliance with United States federal income tax laws and regulations, EDS and any underwriter, agent or dealer participating in an offering of Bearer Securities will agree that, in connection with the original issuance of such Bearer Securities and during the period ending 40 days after the issue date, they will not offer, sell, or deliver any such Bearer Security, directly or indirectly, to a United States Person (as defined below) or to any person within the United States, except to the extent permitted under United States Treasury regulations. Bearer Securities will bear a legend to the following effect: "Any United States Person who holds this obligation will be subject to limitations under the United States federal income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code." The sections referred to in the legend provide that, with certain exceptions, a United States taxpayer who holds Bearer Securities will not be allowed to 8 deduct any loss with respect to, and will not be eligible for capital gain treatment with respect to any gain realized on the sale, exchange, redemption, or other disposition of, such Bearer Securities. For this purpose, "United States" includes the United States of America and its possessions, and "United States Person" means a citizen or resident of the United States, a corporation, partnership, or other entity created or organized in or under the laws of the United States, or an estate or trust the income of which is subject to United States federal income taxation regardless of its source. Pending the availability of a definitive Global Security or individual Bearer Securities, as the case may be, Debt Securities that are issuable as Bearer Securities may initially be represented by a single temporary Global Security, without interest coupons, to be deposited with a common depositary in London for Morgan Guaranty Trust Company of New York, Brussels Office, as operator of the Euroclear System ("Euroclear"), or Centrale de Livraison de Valeurs Mobilieres S.A. ("CEDEL") for credit to the accounts designated by or on behalf of the purchasers thereof. Following the availability of a definitive Global Security in bearer form, without coupons attached, or individual Bearer Securities and subject to any further limitations described in the applicable Prospectus Supplement, the temporary Global Security will be exchangeable for interests in such definitive Global Security or for such individual Bearer Securities, respectively, only upon receipt of a "Certificate of Non-U.S. Beneficial Ownership," which is a certificate to the effect that a beneficial interest in a temporary Global Security is owned by a person that is not a United States Person or is owned by or through a financial institution in compliance with applicable United States Treasury regulations. No Bearer Security will be delivered in or to the United States and no interest on a Bearer Security will be paid within the United States. If so specified in the applicable Prospectus Supplement, interest on a temporary Global Security will be paid to each of Euroclear and CEDEL with respect to that portion of such temporary Global Security held for its account, but only upon receipt as of the relevant interest payment date of a Certificate of Non-U.S. Beneficial Ownership. EVENTS OF DEFAULT AND REMEDIES The following events are defined in the Indenture as "Events of Default" with respect to a series of Debt Securities: (a) Default in the payment of any installment of interest on any Debt Securities of that series or any payment with respect to the related coupons, if any, as and when the same shall become due and payable and continuance of such default for a period of 30 days; (b) Default in the payment of principal or premium with respect to any Debt Securities of that series as and when the same shall become due and payable, whether at maturity, upon redemption, by declaration, upon required repurchase, or otherwise; (c) Default in the payment of any sinking fund payment with respect to any Debt Securities of that series as and when the same shall become due and payable; (d) Default in the performance, or breach, of any covenant of EDS in the Indenture (other than a covenant or a default in whose performance or whose breach is otherwise specifically dealt with or which has expressly been included in the Indenture solely for the benefit of a series of Debt 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, written notice specifying such default and requiring EDS to remedy the same to EDS by the Trustee or to EDS and the Trustee by the holders of at least 25% in aggregate principal amount of the Debt Securities of that series at the time outstanding; (e) Acceleration of any indebtedness of EDS in excess of $50,000,000 under the terms of the instrument under which that indebtedness is or may be outstanding, if the acceleration is not annulled or the indebtedness is not paid within 10 days after written notice to EDS by the Trustee or by the holders of at least 25% in aggregate principal of the Debt Securities of that series at the time outstanding; 9 (f) EDS shall (1) voluntarily commence any proceeding or file any petition seeking relief under the United States Bankruptcy Code or other federal or state bankruptcy, insolvency, or similar law, (2) consent to the institution of, or fail to controvert within the time and in the manner prescribed by law, any such proceeding or the filing of any such petition, (3) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, or similar official for EDS or for a substantial part of its property, (4) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (5) make a general assignment for the benefit of creditors, (6) admit in writing its inability or fail generally to pay its debts as they become due, (7) take corporate action for the purpose of effecting any of the foregoing, or (8) take any comparable action under any foreign laws relating to insolvency; (g) The entry of an order or decree by a court having competent jurisdiction for (1) relief with respect to EDS or a substantial part of any of its property under the United States Bankruptcy Code or any other federal or state bankruptcy, insolvency, or similar law, (2) the appointment of a receiver, trustee, custodian, sequestrator, or similar official for EDS or for a substantial part of any of its property, or (3) the winding-up or liquidation of EDS, and such order or decree shall continue unstayed and in effect for 60 consecutive days, or any similar relief is granted under any foreign laws and the order or decree stayed in effect for 60 consecutive days; and (h) Any other Event of Default provided with respect to Debt Securities of that series. An Event of Default with respect to one series of Debt Securities is not necessarily an Event of Default for another series. If an Event of Default described in clause (a), (b), (c), (d), (e) or (h) above occurs and is continuing with respect to any series of Debt Securities, unless the principal and interest with respect to all the Debt Securities of such series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Debt Securities of such series then outstanding may declare the principal amount (or, if Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in such series) of and interest on all the Debt Securities of such series due and payable immediately. If an Event of Default described in clause (f) or (g) above occurs, unless the principal and interest with respect to all the Debt Securities of all series shall have become due and payable, the principal amount (or, if any series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in such series) of and interest on all Debt Securities of all series then outstanding shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any holder of Debt Securities. If an Event of Default occurs and is continuing, the Trustee shall be entitled and empowered to institute any action or proceeding for the collection of the sums so due and unpaid or to enforce the performance of any provision of the Debt Securities of the affected series or the Indenture, to prosecute any such action or proceeding to judgment or final decree, and to enforce any such judgment or final decree against EDS or any other obligor on the Debt Securities of such series. In addition, if there shall be pending proceedings for the bankruptcy or reorganization of EDS, or if a receiver, trustee, or similar official shall have been appointed for its property, the Trustee shall be entitled and empowered to file and prove a claim for the whole amount of principal, premium, and interest (or, in the case of Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid with respect to the Debt Securities. No holder of any Debt Security or coupon of any series shall have any right to institute any action or proceeding upon or under or with respect to the Indenture, for the appointment of a receiver or trustee, or for any other remedy, unless (a) such holder previously shall have given to the Trustee written notice of an Event of Default with respect to Debt Securities of that series and of the continuance thereof, (b) the holders of not less than 25% in aggregate principal amount of the outstanding Debt Securities of that series shall have made written request to the Trustee to institute such action or proceeding with respect to such Event of Default and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses, and liabilities to be incurred therein or thereby, and (c) the Trustee, for 60 days after its receipt of such notice, request, and offer of indemnity shall have failed to institute such action or 10 proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to the provisions of the Indenture. Prior to the acceleration of the maturity of the Debt Securities of any series, the holders of a majority in aggregate principal amount of the Debt Securities of that series at the time outstanding may, on behalf of the holders of all Debt Securities and any related coupons of that series, waive any past default or Event of Default and its consequences for that series, except (a) a default in the payment of the principal, premium, or interest with respect to such Debt Securities or (b) a default with respect to a provision of the Indenture that cannot be amended without the consent of each holder affected thereby. In case of any such waiver, such default shall cease to exist, any Event of Default arising therefrom shall be deemed to have been cured for all purposes, and EDS, the Trustee, and the holders of the Debt Securities of that series shall be restored to their former positions and rights under the Indenture. The Trustee shall, within 90 days after the occurrence of a default known to it with respect to a series of Debt Securities, give to the holders of the Debt Securities of such series notice of all uncured defaults with respect to such series known to it, unless such defaults shall have been cured or waived before the giving of such notice; provided, however, that except in the case of default in the payment of principal, premium, or interest with respect to the Debt Securities of such series or in the making of any sinking fund payment with respect to the Debt Securities of such series, the Trustee shall be protected in withholding such notice if it in good faith determines that the withholding of such notice is in the interest of the holders of such Debt Securities. CERTAIN COVENANTS EDS has agreed to certain restrictions in connection with the issuance of the Debt Securities. The covenants of EDS contained in the Indenture will not necessarily afford holders of the Debt Securities protection in the event of a highly leveraged transaction involving EDS, such as a leveraged buyout, or a change of control of EDS. Certain Definitions "Attributable Debt" means, as to any sale and leaseback transaction, at any date as of which the amount thereof is to be determined, the total amount determined by multiplying (i) the greater of (a) the fair value of the Real Property subject to the arrangement (as determined by EDS) or (b) the net proceeds of the sale of the Real Property to the lender or investor by (ii) a fraction, the numerator of which is the number of months in the unexpired initial term of the lease of the Real Property and the denominator of which is the number of months in the full initial term of such lease. Sale and leaseback transactions with respect to Real Property financed by obligations issued by a state or local governmental unit (whether or not tax exempt) will not be included in any calculation of Attributable Debt. "Consolidated Net Tangible Assets" means the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting (a) all current liabilities (excluding any current liabilities for money borrowed having a maturity of less than 12 months but by its terms being renewable or extendible beyond 12 months from such date at the option of the borrower) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent balance sheet of EDS and its consolidated subsidiaries and computed in accordance with generally accepted accounting principles. "Debt" means notes, bonds, debentures or other similar evidences of indebtedness for money borrowed. "Real Property" means any real property, and any building, structure or other facility thereon, located in the United States (excluding its territories and possessions, but including Puerto Rico), that EDS or any Subsidiary owns or leases and that has a gross book value (without deduction of any depreciation reserves) on the date as of which the determination is being made in excess of 1% of Consolidated Net Tangible Assets. The definition excludes any such real property and any building, structure or other facility or portion thereof thereon (i) which comprises EDS' former and current corporate headquarters in Dallas and Plano, Texas, respectively; (ii) that is financed by obligations issued by a state or local governmental unit (whether or not tax exempt); and (iii) which if not owned or leased by EDS or any 11 Subsidiary, in the opinion of the board of directors of EDS, would not have a material adverse effect on the business conducted by EDS and its Subsidiaries as an entirety. "Restricted Subsidiary" means any Subsidiary (except a Subsidiary engaged principally in financing the operations of EDS or its Subsidiaries, or both, outside the United States) that owns a Real Property and either (i) has more than 50% of its net sales and operating revenues during the preceding four calendar quarters derived from, or more than 50% of its operating properties located in, the United States (excluding its territories and possessions, but including Puerto Rico), or (ii) has more than 50% of its assets consisting of securities of other Restricted Subsidiaries. "Subsidiary" means a corporation, association, partnership or other entity of which EDS or one or more Subsidiaries of EDS own, directly or indirectly, 80% or more of the outstanding voting interest. Restrictions on Secured Debt. EDS will not itself or permit any Restricted Subsidiary to incur, issue, assume or guarantee any Debt secured by pledge of, or mortgage or other lien on, any Real Property or on any shares of stock or Debt of any Restricted Subsidiary (such pledges, mortgages and other liens being hereinafter called "Mortgage" or "Mortgages"), without providing that the Debt Securities shall be secured equally and ratably with (or prior to) such secured Debt. This obligation will not apply if, after giving effect to the secured Debt, the aggregate amount of all such Debt so secured together with all Attributable Debt of EDS and its Restricted Subsidiaries in respect of sale and leaseback transactions (other than sale and leaseback transactions in which the net proceeds of the Real Property is applied to retire Debt Securities or certain other Debt) involving Real Properties would not exceed 10% of EDS' Consolidated Net Tangible Assets. This obligation will not apply to, and there will be excluded in computing secured Debt for the purpose of the restriction, Debt secured by (i) Mortgages existing on the date the Indenture is signed, (ii) Mortgages on property, stock, or Debt of any corporation, partnership, association or other entity existing at the time that corporation, partnership, association or other entity becomes a Restricted Subsidiary or obligor under the Indenture, (iii) Mortgages in favor of EDS or a Restricted Subsidiary by a Restricted Subsidiary, (iv) Mortgages in favor of the United States of America or any state thereof, or any agency, department or other instrumentality thereof, to secure progress, advance or other payments pursuant to any contract or provision of any statute, (v) Mortgages on property, stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price, construction cost or development cost created or assumed within 360 days after such acquisition or completion of construction or development, and (vi) any extension, renewal or refinancing (or successive extensions, renewals or refinancings), as a whole or in part, of any of the foregoing; provided, however, that (a) such extension, renewal or refinancing Mortgage will be limited to all or a part of the same property, shares of stock or Debt that secured the Mortgage extended, renewed or refinanced (plus improvements on such property) and (b) the principal amount of Debt secured by such Mortgage is not increased in an amount exceeding 105% thereof. Restrictions on Sales and Leasebacks. Neither EDS nor any Restricted Subsidiary may enter into any sale and leaseback transaction involving any Real Property, completion of construction and commencement of full operation of which has occurred more than 360 days previously, unless either (i) EDS or the Restricted Subsidiary could create Debt secured by a Mortgage on the Real Property under the restrictions described under "--Restrictions on Secured Debt" above in an amount equal to the Attributable Debt with respect to the sale and leaseback transaction without equally and ratably securing the Notes or (ii) EDS or the Restricted Subsidiary, within 120 days, applies to the retirement of the Debt Securities or other Debt of EDS or any of its Restricted Subsidiaries maturing more than one year after the sale or transfer of an amount equal to the net proceeds of the sale of the Real Property sold and leased pursuant to that arrangement. This restriction will not apply to any sale leaseback transaction between EDS and a Restricted Subsidiary or between Restricted Subsidiaries or involving the taking back of a lease for a period of three years or less. 12 CONSOLIDATION, MERGER, AND SALE OF ASSETS EDS may not consolidate with, or sell or convey all or substantially all of its assets to, or merge with or into any other person unless the following conditions have been satisfied: (a) either (1) EDS shall be the continuing person in the case of a merger or (2) the resulting, surviving, or transferee person, if other than EDS (the "Successor Company"), shall be a corporation organized and existing under the laws of the United States, any State, or the District of Columbia and shall expressly assume all of the obligations of EDS under the Debt Securities and coupons and the Indenture; (b) immediately after giving effect to such transaction, no Default or Event of Default would occur or be continuing; (c) the Successor Company waives any right to redeem any Bearer Security under circumstances in which the Successor Company would be entitled to redeem such Bearer Security but EDS would not have been so entitled to redeem if the consolidation, merger, conveyance, transfer, or lease had not occurred; and (d) EDS shall have delivered to the Trustee an officers' certificate and an opinion of counsel, each stating that such consolidation, merger, or sale complies with the Indenture. MODIFICATION OF THE INDENTURE EDS and the Trustee may enter into supplemental indentures without the consent of the holders of Debt Securities for one or more of the following purposes: (a) To evidence the succession of another person to EDS pursuant to the provisions of the Indenture relating to consolidations, mergers, and sales of assets and the assumption by such successor of the covenants, agreements, and obligations of EDS in the Indenture and in the Debt Securities; (b) To surrender any right or power conferred upon EDS by the Indenture, to add to the covenants of EDS further covenants, restrictions, conditions, or provisions for the protection of the holders of all or any series of Debt Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions, conditions, or provisions a default or an Event of Default under the Indenture (provided, however, that with respect to any such additional covenant, restriction, condition, or provision, such supplemental indenture may provide for a period of grace after default, which may be shorter or longer than that allowed in the case of other defaults, may provide for an immediate enforcement upon such default, or may limit the right of holders of a majority in aggregate principal amount of any or all series of Debt Securities to waive such default); (c) To cure any ambiguity or to correct or supplement any provision contained in the Indenture, in any supplemental indenture, or in any Debt Securities that may be defective or inconsistent with any other provision contained therein, to convey, transfer, assign, mortgage, or pledge any property to or with the Trustee, or to make such other provisions in regard to matters or questions arising under the Indenture, provided that any such action shall not adversely affect the interests of any holders of Debt Securities of any series; (d) To modify or amend the Indenture in such a manner as to permit the qualification of the Indenture or any supplemental indenture under the Trust Indenture Act as then in effect; (e) To add to or change any of the provisions of the Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal or premium with respect to Registered Securities or of principal, premium, or interest with respect to Bearer Securities, or to permit Registered Securities to be exchanged for Bearer Securities, so long as any such action does not adversely affect the interests of the holders of Debt Securities or any coupons of any series in any material respect or permit or facilitate the issuance of Debt Securities of any series in uncertificated form; (f) To comply with the provisions of the Indenture relating to consolidations, mergers, and sales of assets; 13 (g) To add guarantees with respect to the Debt Securities or to secure the Debt Securities; (h) To make any change that does not adversely affect the rights of any holder; (i) To add to, change, or eliminate any of the provisions of the Indenture with respect to one or more series of Debt Securities, so long as any such addition, change, or elimination not otherwise permitted under the Indenture shall (1) neither apply to any Debt Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor modify the rights of the holders of any such Debt Security with respect to such provision or (2) become effective only when there is no such Debt Security outstanding; (j) To evidence and provide for the acceptance of appointment by a successor or separate Trustee with respect to the Debt Securities of one or more series and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the Indenture by more than one Trustee; and (k) To establish the form or terms of Debt Securities and coupons of any series, as described under "Description of Debt Securities-- General." With the consent of the holders of a majority in aggregate principal amount of the outstanding Debt Securities of each series affected thereby, EDS and the Trustee may from time to time and at any time enter into a supplemental indenture for the purpose of adding any provisions to, changing in any manner, or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holder of the Debt Securities of such series; provided, however, that without the consent of the holders of each Debt Security so affected, no such supplemental indenture shall (a) reduce the percentage in principal amount of Debt Securities of any series whose holders must consent to an amendment, (b) reduce the rate of or extend the time for payment of interest on any Debt Security or coupon or reduce the amount of any payment to be made with respect to any coupon, (c) reduce the principal of or change the stated maturity of principal of, or any installment of principal of or interest on, any Debt Security or reduce the amount of principal of any Original Issue Discount Security that would be due and payable upon declaration of acceleration of maturity, (d) reduce the premium payable upon the redemption of any Debt Security or change the time at which any Debt Security may or shall be redeemed, (e) make any Debt Security payable in a currency other than that stated in the Debt Security, (f) release any security that may have been granted with respect to the Debt Securities, (g) make any change in the provisions of the Indenture relating to waivers of defaults or amendments that require unanimous consent, (h) change any obligation of EDS provided for in the Indenture to pay additional interest with respect to Bearer Securities, (i) limit the obligation of EDS to maintain a paying agency outside the United States for payment on Bearer Securities or limit the obligation of EDS to redeem certain Bearer Securities, (j) change any place of payment where any Debt Security or any premium or interest thereon is payable; (k) impair the right to institute suit for the enforcement of any payment on or after the stated maturity of any Debt Security (or in the case of redemption, on or after the date fixed for redemption); or (l) modify any of the provisions of this section of the Indenture, 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 Debt Security affected thereby. SATISFACTION AND DISCHARGE OF THE INDENTURE; DEFEASANCE The Indenture shall generally cease to be of any further effect with respect to a series of Debt Securities if (a) EDS has delivered to the Trustee for cancellation all Debt Securities of such series (with certain limited exceptions) or (b) all Debt Securities and coupons of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable and EDS shall have deposited with the Trustee as trust funds the entire amount sufficient to pay at maturity or upon redemption all such Debt Securities and coupons (and if, in either case, EDS shall also pay or cause to be paid all other sums payable under the Indenture by it). 14 In addition, EDS shall have a "legal defeasance option" (pursuant to which it may terminate, with respect to the Debt Securities of a particular series, all of its obligations under such Debt Securities and the Indenture with respect to such Debt Securities) and a "covenant defeasance option" (pursuant to which it may terminate, with respect to the Debt Securities of a particular series, its obligations with respect such Debt Securities under certain specified covenants contained in the Indenture). If EDS exercises its legal defeasance option with respect to a series of Debt Securities, payment of such Debt Securities may not be accelerated because of an Event of Default. If EDS exercises its covenant defeasance potion with respect to a series of Debt Securities, payment of such Debt Securities may not be accelerated because of an Event of Default related to the specified covenants. EDS may exercise its legal defeasance option or its covenant defeasance option with respect to the Debt Securities of a series only if (a) EDS irrevocably deposits in trust with the Trustee cash or U.S. Government Obligations (as defined in the Indenture) for the payment of principal, premium, and interest with respect to such Debt Securities to maturity or redemption, as the case may be, (b) EDS delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal, premium, and interest when due with respect to all the Debt Securities of such series to maturity or redemption, as the case may be, (c) 123 days pass after the deposit is made and during the 123-day period no default described in clause (f) or (g) under "Events of Default and Remedies" above occurs that is continuing at the end of such period, (d) no Default has occurred and is continuing on the date of such deposit and after giving effect thereto, (e) the deposit does not constitute a default under any other agreement binding on EDS, (f) EDS delivers to the Trustee an opinion of counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940, (g) EDS shall have delivered to the Trustee an opinion of counsel addressing certain federal income tax matters relating to the defeasance, and (h) EDS delivers to the Trustee an officers' certificate and an opinion of counsel, each stating that all conditions precedent to the defeasance and discharge of the Debt Securities of such series as contemplated by the Indenture have been complied with. The Trustee shall hold in trust cash or U.S. Government Obligations deposited with it as described above and shall apply the deposited cash and the proceeds from deposited U.S. Government Obligations to the payment of principal, premium, and interest with respect to the Debt Securities and coupons of the defeased series. THE TRUSTEE Texas Commerce Bank National Association is the Trustee under the Indenture. The Trustee is also the trustee under a prior indenture between EDS and Texas Commerce Bank National Association and acts as a depository for funds of, performs certain other services for, and transacts other banking business with EDS and certain of its subsidiaries in the normal course of its business. Chase Manhattan Bank, an affiliate of the Trustee, acts as a depository for funds of, performs certain other services for, and transacts other banking business with EDS and certain of its subsidiaries in the normal course of business. Chase Manhattan Bank is a participating lender under EDS' current credit facility. EDS may appoint a separate Trustee for any series of Debt Securities. GOVERNING LAW The Indenture and the Debt Securities will be governed by the laws of the State of New York. 15 PLAN OF DISTRIBUTION EDS may sell Debt Securities in or outside the United States of America through underwriters, dealers or agents or directly to one or more purchasers. 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. In connection with the sale of Debt Securities, underwriters may receive compensation from EDS 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 underwrites, and any discounts or commissions received by them from EDS and any profit on the resale of Debt Securities by them may be deemed to be underwriting discounts and commissions, under the Securities Act. Any such underwriter or agent will be identified, and any such compensation received from EDS will be described in the applicable Prospectus Supplement. In the event EDS sells directly to one or more purchasers, EDS' employees will not receive additional compensation in connection with their participation in such sales, and, accordingly, EDS will not register any employees as broker/dealers in reliance upon Rule 3a4-1 as promulgated under the Exchange Act. Under agreements which may be entered into by EDS, underwriters, dealers and agents who participate in the distribution of Debt Securities may be entitled to indemnification by EDS against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the underwriters, dealers or agents may be required to make in respect thereof. The Debt Securities may or may not be listed on a national securities exchange. No assurance can be given that there will be a market for the Debt Securities. LEGAL MATTERS Certain matters with respect to the validity of the Debt Securities offered hereby will be passed upon for EDS by D. Gilbert Friedlander, Senior Vice President, General Counsel and Secretary of EDS, and for any underwriters, dealers or agents by a firm named in the Prospectus Supplement relating to a particular issue of Debt Securities. Mr. Friedlander is the beneficial owner of shares of Common Stock of EDS. EXPERTS The consolidated financial statements and financial statement schedule of EDS as of December 31, 1995 and 1994, and for each of the years in the three- year period ended December 31, 1995, which are incorporated in this Prospectus by reference to EDS' Current Report on Form 8-K dated April 23, 1996, have been audited by KPMG Peat Marwick LLP, independent auditors, as stated in their reports appearing therein and have been so incorporated by reference in reliance upon such reports given upon the authority of that firm as experts in accounting and auditing. 16 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. *
Securities and Exchange Commission registration fee.. $ 689,655 Printing and engraving expenses...................... 80,000 Accounting fees and expenses......................... 30,000 Trustee Fees......................................... 40,000 Fees of rating agencies............................. 260,000 Blue Sky fees and expenses........................... 15,000 Miscellaneous........................................ 10,000 ---------- Total $1,124,655 ----------
Estimated, except for the Securities and Exchange Commission registration fee ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Delaware General Corporation Law Section 145(a) of the Delaware General Corporation Law (the "DGCL") provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145(b) of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. Section 145(c) of the DGCL provides that to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 145(a) and (b), or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Section 145(d) of the DGCL provides that any indemnification under Section 145(a) and (b) (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 145(a) and (b). Such determination shall be made (1) by a majority vote of the directors who were not parties to such action, suit or proceeding, even though less than a quorum, or (2) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (3) by the stockholders. II-1 Section 145(e) of the DGCL provides that expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in Section 145. Such expenses (including attorneys' fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate. Section 145(f) of the DGCL provides that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Section 145(g) of the DGCL provides that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his capacity as such, whether or not the corporation would have the power to indemnify him against such liability under Section 145. RESTATED CERTIFICATE OF INCORPORATION Article Seventh of the Restated Certificate of Incorporation of EDS provides that no director of EDS shall be personally liable to EDS or any of its stockholders for monetary damages for breach of fiduciary duty as a director involving any act or omission of any such director; provided, however, that such Article Seventh does not eliminate or limit the liability of a director (1) for any breach of such director's duty of loyalty to EDS or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL (which relates to certain unlawful dividend payments or stock purchases or redemptions), as the same exists or may hereafter be amended, supplemented or replaced, or (4) for a transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of EDS, in addition to the limitation on personal liability described above, shall be limited to the fullest extent permitted by the DGCL, as so amended. Furthermore, any repeal or modification of Article Seventh of the Restated Certificate of Incorporation by the stockholders of EDS shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of EDS existing at the time of such repeal or modification. BYLAWS Article VI of the Amended and Restated Bylaws of EDS provides that each person who at any time shall serve or shall have served as a director, officer, employee or agent of EDS, or any person who, while a director, officer, employee or agent of EDS, is or was serving at the written request of EDS (in accordance with written procedures adopted from time to time by the Board of Directors of EDS) as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, shall be entitled to (a) indemnification and (b) the advancement of expenses incurred by such person from EDS as, and to the fullest extent, permitted by Section 145 of the DGCL or any successor statutory provision, as from time to time amended. INDEMNIFICATION AGREEMENTS EDS has entered into Indemnification Agreements (the "Indemnification Agreements") with its directors and certain of its officers (the "Indemnitees"). Under the terms of the Indemnification Agreements, EDS has generally agreed to indemnify, and advance expenses to, each Indemnitee to the fullest extent permitted by applicable law on the date of such agreements and to such greater extent as applicable law may thereafter permit. In addition, the Indemnification Agreements contain specific provisions pursuant to which EDS has agreed to indemnify each Indemnitee (i) if such person is, by reason of his or her status as a director, nominee for director, officer, agent or fiduciary of EDS or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise with which such person was serving at the request of EDS (any such status being hereinafter referred to as a "Corporate Status"), made or threatened to be made a party to any threatened, pending or completed action, suit, arbitration, alternative dispute resolution mechanism, investigation or other proceeding (each, a "Proceeding"), other than a Proceeding by or in the right of EDS, (ii) if such person is, by reason of his or her II-2 Corporate Status, made or threatened to be made a party to any Proceeding brought by or in the right of EDS to procure a judgment in its favor, except that no indemnification shall be made in respect of any claim, issue or matter in such Proceeding as to which such Indemnitee shall have been adjudged to be liable to EDS if applicable law prohibits such indemnification (unless and only to the extent that a court shall otherwise determine), (iii) against expenses actually and reasonably incurred by such person or on his or her behalf in connection with any Proceeding to which such Indemnitee was or is a party by reason of his or her Corporate Status and in which such Indemnitee is successful, on the merits or otherwise, (iv) against expenses actually and reasonably incurred by such person or on his or her behalf in connection with a Proceeding to the extent that such Indemnitee is, by reason of his or her Corporate Status, a witness or otherwise participates in any Proceeding at a time when such person is not a party in the Proceeding and (v) against expenses actually and reasonably incurred by such person in any judicial adjudication of or any award in arbitration to enforce his or her rights under the Indemnification Agreements. Furthermore, under the terms of the Indemnification Agreements, EDS has agreed to pay all reasonable expenses incurred by or on behalf of an Indemnitee in connection with any Proceeding, whether brought by or in the right of EDS or otherwise, in advance of any determination with respect to entitlement to indemnification and within 15 days after the receipt by EDS of a written request from such Indemnitee for such payment. In the Indemnification Agreements, each Indemnitee has agreed that he or she will reimburse and repay EDS for any expenses so advanced to the extent that it shall ultimately be determined that he or she is not entitled to be indemnified by EDS against such expenses. The Indemnification Agreements also include provisions that specify the procedures and presumptions which are to be employed to determine whether an Indemnitee is entitled to indemnification thereunder. In some cases, the nature of the procedures specified in the Indemnification Agreements varies depending on whether there has occurred a "Change in Control" (as defined in the Indemnification Agreements) of EDS. INSURANCE EDS has obtained and intends to maintain in effect directors' and officers' liability insurance policies providing customary coverage for its directors and officers against losses resulting from wrongful acts committed by them in their capacities as directors and officers of EDS. The above discussion of EDS' Bylaws and Restated Certificate of Incorporation, the Indemnification Agreements and Section 145 of the DGCL is not intended to be exhaustive and is respectively qualified in its entirety by such documents and statute. II-3 ITEM 16. EXHIBITS. The following documents are exhibits to the Registration Statement. EXHIBIT NUMBER DESCRIPTION OF DOCUMENT ------ ----------------------- 1 Form of Underwriting Agreement 4 Indenture dated as of August 12, 1996 between Electronic Data Systems Corporation and Texas Commerce Bank National Association. 5 Opinion of D. Gilbert Friedlander 12 Computation of Ratio of Earnings to Fixed Charges. 23(a) Consent of KPMG Peat Marwick LLP, independent auditors. 23(b) Consent of D. Gilbert Friedlander (included in Exhibit 5 to this Registration Statement). 24 Powers of Attorney (included in the Signature Page to this Registration Statement). 25 Form T-1 Statement of Eligibility and Qualification under Trust Indenture Act of 1939 of Texas Commerce Bank National Association. ITEM 17. UNDERTAKINGS. The undersigned Registrant hereby undertakes: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a 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 post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4. That, for purposes of determining 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 II-4 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. 5. For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. 6. For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 7. To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. 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 Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Plano, State of Texas, on the 13th day of August, 1996. Electronic Data Systems Corporation By: /s/ LESTER M. ALBERTHAL, JR. ---------------------------- - Lester M. Alberthal, Jr. Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Lester M. Alberthal, Jr., Gary J. Fernandes, Joseph M. Grant and Jeffrey M. Heller, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including pre- or post-effective 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, and hereby grants to such attorneys-in-fact and agents and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their 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 on August 13, 1996 in the capacities indicated. SIGNATURE TITLE --------- ----- /s/ LESTERM. ALBERTHAL,JR. Chairman of the Board, Chief Executive - -------------------------- Officer and Director (Principal Executive Lester M. Alberthal, Jr. Officer) /s/ GARY J. FERNANDES Vice Chairman and Director - --------------------------- Gary J. Fernandes /s/ JEFFREY M. HELLER President, Chief Operating Officer and - --------------------------- Director Jeffrey M. Heller /s/ JOSEPH M. GRANT Executive Vice President and Chief Financial - --------------------------- Officer (Principal Financial Officer) Joseph M. Grant /s/ H. PAULETT EBERHART Vice President and Controller (Principal - --------------------------- Accounting Officer) H. Paulett Eberhart II-6 SIGNATURE TITLE --------- ----- /s/ JAMES A. BAKER, III Director - -------------------------- James A. Baker, III /s/ RICHARD B. CHENEY Director - -------------------------- Richard B. Cheney /s/ RAY J. GROVES Director - -------------------------- Ray J. Groves /s/ RAY L. HUNT Director - -------------------------- Ray L. Hunt /s/ C. ROBERT KIDDER Director - -------------------------- C. Robert Kidder /s/ JUDITH RODIN Director - -------------------------- Judith Rodin /s/ ENRIQUE J. SOSA Director - -------------------------- Enrique J. Sosa II-7 EX-1 2 FORM OF UNDERWRITING AGREEMENT EXHIBIT 1 ELECTRONIC DATA SYSTEMS CORPORATION UNDERWRITING AGREEMENT STANDARD PROVISIONS (DEBT SECURITIES) , 199 From time to time, Electronic Data Systems Corporation, a Delaware corporation (the "Company"), may enter into one or more underwriting agreements that provide for the sale of designated securities to the several underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein sometimes referred to as this Agreement. Terms defined in the Underwriting Agreement are used herein as therein defined. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement, including a prospectus, relating to the Debt Securities and has filed with, or transmitted for filing to, or shall promptly hereafter file with or transmit for filing to, the Commission a prospectus supplement (the "Prospectus Supplement") specifically relating to the Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"). The term "Registration Statement" means the registration statement, including the exhibits thereto, as amended to the date of this Agreement. The term "Basic Prospectus" means the prospectus included in the Registration Statement. The term "Prospectus" means the Basic Prospectus together with the Prospectus Supplement. The term "preliminary prospectus" means a preliminary prospectus supplement specifically relating to the Offered Securities, together with the Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in each case the documents, if any, incorporated by reference therein. The terms "supplement," "amendment" and "amend" as used herein shall include all documents deemed to be incorporated by reference in the Prospectus that are filed subsequent to the date of the Basic Prospectus by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The term "Contract Securities" means the Offered Securities to be purchased pursuant to the delayed delivery contracts substantially in the form of Schedule I hereto, with such changes therein as the Company may approve (the "Delayed Delivery Contracts"). The term "Underwriters' Securities" means the Offered Securities other than Contract Securities. 1. REPRESENTATIONS AND WARRANTIES. The Company represents and ------------------------------ warrants to and agrees with each of the Underwriters that: (a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. (b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply, and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iv) the Prospectus does not contain and, as amended or 2 supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 1(b) do not apply (A) to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Manager expressly for use therein or (B) to that part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee. (c) This Agreement has been duly authorized, executed and delivered by the Company. (d) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (e) The Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company and are valid and binding agreements of the Company, enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability. (f) The Offered Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting 3 Agreement, in the case of the Underwriters' Securities, or by institutional investors in accordance with the terms of the Delayed Delivery Contracts, in the case of the Contract Securities, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability. (g) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement). (h) Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. (i) The Company has complied with all provisions of Section 517.075, Florida Statutes relating to doing business with the Government of Cuba or with any person or affiliate located in Cuba. 2. DELAYED DELIVERY CONTRACTS. If the Prospectus provides for sales -------------------------- of Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby authorizes the Underwriters to solicit offers to purchase Contract Securities on the terms and subject to the conditions set forth in the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only with institutional investors approved by the Company of the types set forth in the 4 Prospectus. On the Closing Date, the Company will pay to the Manager as compensation for the accounts of the Underwriters the commission set forth in the Underwriting Agreement in respect of the Contract Securities. The Underwriters will not have any responsibility in respect of the validity or the performance of any Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery Contracts with institutional investors, the aggregate amount of Offered Securities to be purchased by the several Underwriters shall be reduced by the aggregate amount of Contract Securities; such reduction shall be applied to the commitment of each Underwriter pro rata in proportion to the amount of Offered Securities set forth opposite such Underwriter's name in the Underwriting Agreement, except to the extent that the Manager determines that such reduction shall be applied in other proportions and so advises the Company; provided, however, that the total -------- ------- amount of Offered Securities to be purchased by all Underwriters shall be the aggregate amount set forth above, less the aggregate amount of Contract Securities. 3. TERMS OF PUBLIC OFFERING. The Company is advised by the Manager ------------------------ that the Underwriters propose to make a public offering of their respective portions of the Underwriters' Securities as soon after this Agreement has been entered into as in the Manager's judgment is advisable. The terms of the public offering of the Underwriters' Securities are set forth in the Prospectus. 4. PAYMENT AND DELIVERY. Except as otherwise provided in this -------------------- Section 4, payment for the Underwriters' Securities shall be made by wire transfer payable to the order of the Company in Federal (same day) funds at the time and place set forth in the Underwriting Agreement, upon delivery to the Manager for the respective accounts of the several Underwriters of the Underwriters' Securities registered in such names and in such denominations as the Manager shall request in writing not less than one full business day prior to the date of delivery, with any transfer taxes payable in connection with the transfer of the Underwriters' Securities to the Underwriters duly paid. 5 Delivery on the Closing Date of any Underwriters' Securities that are Debt Securities in bearer form shall be effected by delivery of a single temporary global Debt Security without coupons (the "Global Debt Security") evidencing the Offered Securities that are Debt Securities in bearer form to a common depositary for Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison de Valeurs Mobilieres S.A. ("Cedel") for credit to the respective accounts at Euro-clear or Cedel of each Underwriter or to such other accounts as such Underwriter may direct. Any Global Debt Security shall be delivered to the Manager not later than the Closing Date, against payment of funds to the Company in the net amount due to the Company for such Global Debt Security, by the method and in the form set forth in the Underwriting Agreement. The Company shall cause definitive Debt Securities in bearer form to be prepared and delivered in exchange for such Global Debt Security in such manner and at such time as may be provided in or pursuant to the Indenture; provided, however, that -------- ------- the Global Debt Security shall be exchangeable for definitive Debt Securities in bearer form only on or after the date specified for such purpose in the Prospectus. 5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several ------------------------------------------- obligations of the Underwriters are subject to the following conditions: (a) Subsequent to the execution and delivery of the Underwriting Agreement and prior to the Closing Date: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and 6 (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the judgment of the Manager, is material and adverse and that makes it, in the judgment of the Manager, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Prospectus. (b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (c) The Underwriters shall have received on the Closing Date an opinion of D. Gilbert Friedlander, General Counsel of the Company or other counsel reasonably acceptable to the Underwriters, dated the Closing Date, to the effect that (as applicable): (i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to 7 transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; (ii) this Agreement has been duly authorized, executed and delivered by the Company; (iii) the Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability; (iv) the Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company and are valid and binding agreements of the Company, enforceable in accordance with their respective terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (b) the availability of equitable remedies may be limited by equitable principles of general applicability; (v) the Offered Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, in the case of Underwriters' Securities, or by institutional investors in accordance with the terms of the Delayed Delivery Contracts, in the case of the 8 Contract Securities, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (b) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability; (vi) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture, the Offered Securities, and the Delayed Delivery Contracts will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture, the Offered Securities, or the Delayed Delivery Contract, except such as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Offered Securities; (vii) the statements in the Prospectus under the captions "Description of Debt Securities" and "Plan of Distribution" (other than as to the description of intersyndicate agreements and arrangements), and the statements incorporated by reference in the Prospectus under the caption "Relationship Between the Company and 9 General Motors" (or comparable information) in the Company's reports filed with the Commission under the Exchange Act, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein; (viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any contract or other document that is required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required; (ix) such counsel is of the opinion ascribed to it in the Prospectus under the caption "Certain United States Federal Income Tax Consequences"; (x) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Prospectus (except for financial statements and schedules and other financial information included therein as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (B) has not become aware of any fact that leads such counsel to believe that (except for financial statements and schedules and other financial information included therein as to which such counsel need not express any belief and 10 except for that part of the Registration Statement that constitutes the Form T-1 heretofore referred to) each part of the Registration Statement, when such part became effective, contained and, as of the date such opinion is delivered, contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (C) is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules and other financial information included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (D) has not become aware of any fact that lead such counsel to believe that (except for financial statements and schedules and other financial information included therein as to which such counsel need not express any belief) the Prospectus as of the date such opinion is delivered contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) The Underwriters shall have received on the Closing Date an opinion of Vinson & Elkins L.L.P., special counsel for the Underwriters, dated the Closing Date, covering the matters referred to in subparagraphs (ii), (iii), (iv), (v), (vii)(but only as to the statements in the Prospectus under "Description of Debt Securities" and "Plan of Distribution") and clauses (B), (C) and (D) of subparagraph (x) of paragraph (c) above. With respect to subparagraph (x) of paragraph (c) above, D. Gilbert Friedlander ot such other counsel may state that his opinion and belief are based upon his participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and documents incorporated therein by reference and review and discussion of the contents 11 thereof, but are without independent check or verification, except as specified. With respect to clauses (B), (C) and (D) of subparagraph (x) of paragraph (c) above, Vinson & Elkins L.L.P. may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto (but not including documents incorporated therein by reference) and review and discussion of the contents thereof (including documents incorporated therein by reference), but are without independent check or verification, except as specified. The opinion of D. Gilbert Friedlander or such other counsel described in paragraph (c) above shall be rendered to the Underwriters at the request of the Company and shall so state therein. (e) The Underwriters shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Underwriters, from the Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. 6. COVENANTS OF THE COMPANY. In further consideration of the ------------------------ agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows: (a) To furnish the Manager, without charge, three signed copies of the Registration Statement (including exhibits thereto and documents incorporated therein by reference) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto but including documents incorporated therein by reference) and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration 12 Statement as the Manager may reasonably request. (b) Before amending or supplementing the Registration Statement or the Prospectus with respect to the Offered Securities, to furnish to the Manager a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Manager reasonably objects. (c) If, during such period after the first date of the public offering of the Offered Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Manager will furnish to the Company) to which Offered Securities may have been sold by the Manager on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. (d) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Manager shall reasonably request, to maintain such qualification for as long as the Manager shall reasonably request, and to pay all expenses (including reasonable fees and disbursements of counsel) in connection therewith. 13 (e) To make generally available to the Company's security holders and to the Manager as soon as practicable an earning statement covering a twelve month period beginning on the first day of the first full fiscal quarter after the date of this Agreement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby. (f) During the period beginning on the date of the Underwriting Agreement and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants or other rights to purchase debt securities of the Company substantially similar to the Offered Securities (other than (i) the Offered Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Manager. (g) To pay all expenses incident to the performance of its obligations under this Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements thereto; (ii) the preparation, issuance and delivery of the Offered Securities; (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel; (iv) the qualification of the Offered Securities under state securities or Blue Sky laws in accordance with the provisions of Section 6(d), including filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of any Blue Sky or Legal Investment Memoranda; (v) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and all amendments thereto and of any 14 preliminary prospectus and the Prospectus and any amendments or supplements thereto; (vi) the printing and delivery to the Underwriters of copies of any Blue Sky or Legal Investment Memoranda; (vii) any fees charged by rating agencies for the rating of the Offered Securities; (viii) the filing fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc. made in connection with the Offered Securities; and (ix) any expenses incurred by the Company in connection with a "road show" presentation to potential investors. 7. COVENANTS OF THE UNDERWRITERS. Each of the several Underwriters ----------------------------- represents and agrees with the Company that: (a) except to the extent permitted under U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold, and during the restricted period will not offer or sell, Debt Securities in bearer form (including any Debt Security in global form that is exchangeable for Debt Securities in bearer form) to a person who is within the United States or its possessions or to a United States person and (ii) it has not delivered and will not deliver within the United States or its possessions definitive Debt Securities in bearer form that are sold during the restricted period; (b) it has, and throughout the restricted period will have, in effect procedures reasonably designed to ensure that its employees or agents who are directly engaged in selling Debt Securities in bearer form are aware that such Debt Securities may not be offered or sold during the restricted period to a person who is within the United States or its possessions or to a United States person, except as permitted by the D Rules; (c) if it is a United States person, it is acquiring the Debt Securities in bearer form for purposes of resale in connection with their original issuance and if it retains Debt Securities in bearer form for its own account, it will 15 only do so in accordance with the requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6); (d) if it transfers to any affiliate Debt Securities in bearer form for the purpose of offering or selling such Debt Securities during the restricted period, it will either (i) obtain from such affiliate for the benefit of the Company the representations and agreements contained in clauses (a), (b) and (c) or (ii) repeat and confirm the representations and agreements contained in clauses (a), (b) and (c) on such affiliate's behalf and obtain from such affiliate the authority to so obligate it; (e) it will obtain for the benefit of the Company the representations and agreements contained in clauses (a), (b), (c) and (d) from any person other than its affiliate with whom it enters into a written contract, as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4) for the offer or sale during the restricted period of Debt Securities in bearer form; and (f) it will comply with or observe any other restrictions or limitations set forth in the Prospectus on persons to whom, or the jurisdictions in which, or the manner in which, the Debt Securities may be offered, sold, resold or delivered. All other terms used in the preceding paragraph have the meaning given to them by the U.S. Internal Revenue Code (the "Code") and regulations thereunder, including the D Rules. The restricted period is defined at U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(7). 8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to -------------------------------- indemnify and hold harmless each Underwriter, the directors, partners and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securites Act or Section 20 of the Exchange Act from and against (i) any and all losses, claims, damages, liabilities and reasonable expenses arising out of any untrue statement or 16 alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any preliminary Prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any and all losses, claims, damages, liabilities and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that any such settlement is effected with the written consent of the Company, and (iii) any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Manager), reasonably incurred in investigating, preparing and defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under the preceding clauses (i) or (ii), promptly after receipt of adequate documentation relating thereto; provided, however, that this indemnity shall not apply to any such losses, claims, damages, liabilities or expenses arising out of any such untrue statement or omission or alleged untrue statement or omission that is based upon information furnished to the Company in writing by any Underwriter through the Manager expressly for use therein; and provided that the foregoing indemnity agreement with respect to any preliminary prospectuses shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages, liabilities or expenses purchased Offered Securities, or any person controlling such Underwriter, if it shall be established that a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Offered Securities to such person, and if the 17 Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability, and if the Company had previously furnished copies thereof to such Underwriter in the quantities reasonably requested by such Underwriter. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Manager expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. (c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either paragraph (a) or (b) of this Section 8, such person (hereinafter called the indemnified party) shall promptly notify the person against whom such indemnity may be sought (hereinafter called the indemnifying party) in writing; provided, however, that the omission so to notify the indemnifying party shall not relieve the indemnifying party of any liability which it may have to such indemnified party except to the extent that the indemnifying party was materially prejudiced by such failure to notify and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. The indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall 18 have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party shall have agreed in writing to pay such fees and expenses, (ii) the indemnifying party shall have failed to take reasonable steps necessary to defend diligently any claim within ten calendar days after receiving written notice from the indemnified party that the indemnified party believes the indemnifying party has failed to take such steps or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred after receipt of adequate documentation thereof. In the case of any such separate firm for the Underwriters and such control persons of Underwriters, such firm shall be designated in writing by the Manager. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution could be sought under this Section 8 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding 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. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent the indemnifying party agrees to indemnify the indemnified party from 19 and against any loss or liability by reason of such settlement. (d) To the extent the indemnification provided for in paragraph (a) or (b) of this Section 8 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Offered Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of such Offered Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus Supplement, bear to the aggregate public offering price of the Offered Securities. The relative fault of the Company on the one hand and the Underwriters on the other hand 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 or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective principal amounts of Offered Securities they have purchased hereunder, and not joint. 20 (e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 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 that does not take account of the equitable considerations referred to in paragraph (d) of this Section 8. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, 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 Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. (f) The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Offered Securities. 9. TERMINATION. This Agreement shall be subject to termination by ----------- notice given by the Manager to the Company, if (a) after the execution and delivery of the Underwriting Agreement 21 and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by the New York Stock Exchange, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the judgment of the Manager, is material and adverse and (b) in the case of any of the events specified in clauses (a)(i) through (iv), such event, singly or together with any other such event, makes it, in the judgment of the Manager, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Prospectus. 10. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or ----------------------- more of the Underwriters shall fail or refuse to purchase Underwriters' Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate amount of Underwriters' Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate amount of the Underwriters' Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the amount of Underwriters' Securities set forth opposite their respective names in the Underwriting Agreement bears to the aggregate amount of Underwriters' Securities set forth opposite the names of all such non- defaulting Underwriters, or in such other proportions as the Manager may specify, to purchase the Underwriters' Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the amount of Underwriters' Securities -------- that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such amount of Underwriters' Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Underwriters' Securities and the aggregate amount of Underwriters' Securities with respect to which such default 22 occurs is more than one-tenth of the aggregate amount of Underwriters' Securities to be purchased on such date, and arrangements satisfactory to the Manager and the Company for the purchase of such Underwriters' Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either the Manager or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder. 11. COUNTERPARTS. This Agreement may be signed in two or more ------------ counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. 12. APPLICABLE LAW. This Agreement shall be governed by and -------------- construed in accordance with the internal laws of the State of New York. 13. HEADINGS. The headings of the sections of this Agreement have -------- been inserted for convenience of reference only and shall not be deemed a part of this Agreement. 23 UNDERWRITING AGREEMENT , 199 ELECTRONIC DATA SYSTEMS CORPORATION 5400 Legacy Drive Plano, Texas 75024 Dear Sirs and Mesdames: We (the "Manager") are acting on behalf of the underwriter or underwriters (including ourselves) named below (such underwriter or underwriters being herein called the "Underwriters"), and we understand that Electronic Data Systems Corporation, a Delaware corporation (the "Company"), proposes to issue and sell [Currency and Principal Amount] aggregate initial offering price of [Full title of Debt Securities] (the "Debt Securities"). (The Debt Securities are also referred to herein as the "Offered Securities.") The Debt Securities will be issued pursuant to the provisions of an Indenture dated as of , 199 (the "Indenture"), between the Company and Texas Commerce Bank National Association, as Trustee (the "Trustee"). Subject to the terms and conditions set forth or incorporated by reference herein, the Company hereby agrees to sell to the several Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company the respective principal amounts of Debt Securities set forth below opposite their names at a purchase price of % of the principal amount of Debt Securities [, plus accrued interest, if any, from [Date of Offered Securities] to the date of payment and 24 delivery](1): Principal Amount of Name Debt Securities ---- ----------------------- Morgan Stanley & Co. Incorporated Morgan Stanley & Co. International Limited [Insert syndicate list] Total . . . . . . [The principal amount of Debt Securities to be purchased by the several Underwriters shall be reduced by the aggregate principal amount of Debt Securities sold pursuant to delayed delivery contracts.](2) The Underwriters will pay for the Offered Securities [(less any Offered Securities sold pursuant to delayed delivery contracts)] upon delivery thereof at [office] at a.m. (New York time) on , 199 , or at such other time, not later than 5:00 p.m. (New York time) on , 199 , as shall be designated by the Manager. The time and date 25 (1) To be added only if the transaction does not close "flat" (i.e., when the purchaser pays accrued interest on the debt security at closing). Unless otherwise provided in the Debt Securities, accrued interest, if any, will be computed on the basis of a 360-day year of twelve 30-day months. (2) To be added only if delayed delivery contracts are contemplated. of such payment and delivery are hereinafter referred to as the Closing Date.(3) The Offered Securities shall have the terms set forth in the Prospectus dated August , 1996, and the Prospectus Supplement dated , 199 , including the following: Terms of Debt Securities Maturity Date: Interest Rate: Redemption Provisions: Interest Payment Dates: ____________ __ and ____________ __ commencing ____________ __, ____ [(Interest accrues from ____________ __, ____)](4) Form and Denomination: [Other Terms:] [The commission to be paid to the Underwriters in respect of the Offered Securities purchased pursuant to delayed delivery contracts arranged by the Underwriters shall be % of the principal amount of the Debt Securities so purchased.](5) All provisions contained in the document entitled Electronic Data Systems Corporation Underwriting Agreement Standard 26 (3) This paragraph will be modified for any Offered Securities that are to be issued in bearer form. (4) To be added only if the transaction does not close flat. (5) To be added only if delayed delivery contracts are contemplated. Provisions (Debt Securities) dated , 199 , a copy of which is attached hereto, are herein incorporated by reference in their 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, except that (i) if any term defined in such document is otherwise defined herein, the definition set forth herein shall control, (ii) all references in such document to a type of security that is not an Offered Security shall not be deemed to be a part of this Agreement, and (iii) all references in such document to a type of agreement that has not been entered into in connection with the transactions contemplated hereby shall not be deemed to be a part of this Agreement. 27 [SIGNATURE PAGE WHERE MORGAN STANLEY & CO. INCORPORATED ------------------------------------------------------ OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED --------------------------------------------- IS A CO-LEAD MANAGER] --------------------- Please confirm your agreement by having an authorized officer sign a copy of this Agreement in the space set forth below. Very truly yours, MORGAN STANLEY & CO. INCORPORATED MORGAN STANLEY & CO. INTERNATIONAL LIMITED [Name of Other Lead Managers] Acting severally on behalf of themselves and the several Underwriters named herein By: MORGAN STANLEY & CO. INCORPORATED MORGAN STANLEY & CO. INTERNATIONAL LIMITED By: _______________________________ Name: Title: Accepted: ELECTRONIC DATA SYSTEMS CORPORATION By: _________________________ 28 Name: Title: 29 [SIGNATURE PAGE WHERE MORGAN STANLEY & CO. INCORPORATED ------------------------------------------------------- OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED --------------------------------------------- IS SOLE MANAGER] ---------------- Please confirm your agreement by having an authorized officer sign a copy of this Agreement in the space set forth below. Very truly yours, MORGAN STANLEY & CO. INCORPORATED MORGAN STANLEY & CO. INTERNATIONAL LIMITED Acting severally on behalf of itself and the several Underwriters named herein By: _____________________________ Name: Title: Accepted: ELECTRONIC DATA SYSTEMS CORPORATION By: ___________________________ Name: Title: 30 Schedule I DELAYED DELIVERY CONTRACT , 199 Dear Sirs and Mesdames: The undersigned hereby agrees to purchase from Electronic Data Systems Corporation, a Delaware corporation (the "Company"), and the Company agrees to sell to the undersigned the Company's securities described in Schedule A annexed hereto (the "Securities"), offered by the Company's Prospectus dated August , 1996, and Prospectus Supplement dated , 199 , receipt of copies of which are hereby acknowledged, at a purchase price stated in Schedule A and on the further terms and conditions set forth in this Agreement. The undersigned does not contemplate selling Securities prior to making payment therefor. The undersigned will purchase from the Company Securities in the principal amount and numbers on the delivery dates set forth in Schedule A. Each such date on which Securities are to be purchased hereunder is hereinafter referred to as a "Delivery Date." Payment for the Securities which the undersigned has agreed to purchase on each Delivery Date shall be made to the Company or its order by wire transfer in Federal (same day) funds at the office of , New York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to the 31 undersigned of the Securities to be purchased by the undersigned on the Delivery Date, in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. The obligation of the undersigned to take delivery of and make payment for the Securities on the Delivery Date shall be subject to the conditions that (1) the purchase of Securities to be made by the undersigned shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the undersigned is subject and (2) the Company shall have sold, and delivery shall have taken place to the underwriters (the "Underwriters") named in the Prospectus Supplement referred to above of, such part of the Securities as is to be sold to them. Promptly after completion of sale and delivery to the Underwriters, the Company will mail or deliver to the undersigned as its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith. Failure to take delivery of and make payment for Securities by any purchaser under any other Delayed Delivery Contract shall not relieve the undersigned of its obligations under this agreement. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. If this Agreement is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding agreement, as of the date first above written, between the Company and the undersigned when such counterpart is so mailed or delivered. 32 This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York. Yours very truly, ___________________________ (Purchaser) By ________________________ ___________________________ (Title) ___________________________ ___________________________ (Address) Accepted: ELECTRONIC DATA SYSTEMS CORPORATION By ________________________ 33 PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING The name and telephone and department of the representative of the Purchaser with whom details of delivery on the Delivery Date may be discussed is as follows: (Please print.) Telephone No. Name (Including Area Code) Department ---- --------------------- ---------------- - --------------- --------------------- ---------------- 34 SCHEDULE A ---------- Securities: - ---------- Principal Amounts or Numbers to be Purchased: - -------------------------------------------- Purchase Price: - -------------- Delivery - -------- 35 EX-4 3 INDENTURE DATED AS OF AUGUST 12, 1996 EXHIBIT 4 - -------------------------------------------------------------------------------- ELECTRONIC DATA SYSTEMS CORPORATION and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as Trustee __________________ Indenture Dated as of August 12, 1996 __________________ Debt Securities - -------------------------------------------------------------------------------- TABLE OF CONTENTS ARTICLE I Definitions SECTION 1.01. Certain Terms Defined................................................... 1 SECTION 1.02. Incorporation by Reference of Trust Indenture Act....................... 9 SECTION 1.03. Rules of Construction................................................... 10
ARTICLE II Debt Securities SECTION 2.01. Forms Generally......................................................... 10 SECTION 2.02. Form of Trustee's Certificate of Authentication......................... 11 SECTION 2.03. Principal Amount; Issuable in Series.................................... 11 SECTION 2.04. Execution of Debt Securities............................................ 14 SECTION 2.05. Authentication and Delivery of Debt Securities.......................... 15 SECTION 2.06. Denomination of Debt Securities......................................... 17 SECTION 2.07. Registration of Transfer and Exchange................................... 17 SECTION 2.08. Temporary Debt Securities............................................... 20 SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.................... 21 SECTION 2.10. Cancellation of Surrendered Debt Securities............................. 22 SECTION 2.11. Provisions of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders.................................. 22 SECTION 2.12. Payment of Interest; Interest Rights Preserved.......................... 23 SECTION 2.13. Securities Denominated in Foreign Currencies............................ 24 SECTION 2.14. Wire Transfers.......................................................... 25 SECTION 2.15. Securities Issuable in the Form of a Global Security.................... 25 SECTION 2.16. Medium Term Securities.................................................. 28 SECTION 2.17. Defaulted Interest...................................................... 28 SECTION 2.18. Judgments............................................................... 30
ARTICLE III Redemption of Debt Securities SECTION 3.01. Applicability of Article................................................ 30 SECTION 3.02. Tax Redemption; Special Tax Redemption.................................. 30 SECTION 3.03. Notice of Redemption; Selection of Debt Securities...................... 33 SECTION 3.04. Payment of Debt Securities Called for Redemption........................ 35 SECTION 3.05. Mandatory and Optional Sinking Funds.................................... 36 SECTION 3.06. Redemption of Debt Securities for Sinking Fund.......................... 36
ARTICLE IV Covenants of the Company SECTION 4.01 Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities......................................................... 38 SECTION 4.02 Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities................................. 39 SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.................. 40 SECTION 4.04. Duties of Paying Agents, etc............................................ 40 SECTION 4.05. Statement by Officers as to Default..................................... 41 SECTION 4.06. Payment of Additional Interest.......................................... 41 SECTION 4.07. Limitation on Liens..................................................... 43 SECTION 4.08. Limitation on Sales and Leasebacks...................................... 45 SECTION 4.09. Waiver of Certain Covenants............................................. 45 SECTION 4.10. Existence............................................................... 46 SECTION 4.11. Further Instruments and Acts............................................ 46
ARTICLE V Holders' Lists and Reports SECTION 5.01. Company to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information................................. 46 SECTION 5.02. Communications to Holders............................................... 47 SECTION 5.03. Reports by Company...................................................... 47 SECTION 5.04. Reports by Trustee...................................................... 47 SECTION 5.05. Record Dates for Action by Holders...................................... 48
ARTICLE VI Remedies of the Trustee and Holders in Event of Default SECTION 6.01. Events of Default....................................................... 49 SECTION 6.02. Collection of Indebtedness by Trustee, etc.............................. 51 SECTION 6.03. Application of Moneys Collected by Trustee.............................. 53 SECTION 6.04. Limitation on Suits by Holders.......................................... 54 SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default................................................. 55 SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default.................................. 55 SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances.................................... 56 SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits under the Indenture or Against the Trustee.............................. 56
ARTICLE VII Concerning the Trustee SECTION 7.01. Certain Duties and Responsibilities..................................... 57 SECTION 7.02. Certain Rights of Trustee............................................... 58 SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities...... 60 SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities.............. 60 SECTION 7.05. Moneys Received by Trustee to Be Held in Trust.......................... 60 SECTION 7.06. Compensation and Reimbursement.......................................... 60 SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate Where No Other Evidence Specifically Prescribed.................................. 61 SECTION 7.08. Separate Trustee; Replacement of Trustee................................ 61 SECTION 7.09. Successor Trustee by Merger............................................. 63 SECTION 7.10. Eligibility; Disqualification........................................... 63 SECTION 7.11. Preferential Collection of Claims Against Company....................... 64 SECTION 7.12. Compliance with Tax Laws................................................ 64
ARTICLE VIII Concerning the Holders SECTION 8.01. Evidence of Action by Holders........................................... 64 SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt Securities..... 64 SECTION 8.03. Who May Be Deemed Owner of Debt Securities.............................. 65 SECTION 8.04. Instruments Executed by Holders Bind Future Holders..................... 66
ARTICLE IX Supplemental Indentures SECTION 9.01. Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders.............................................. 67 SECTION 9.02. Modification of Indenture with Consent of Holders of Debt Securities.... 69 SECTION 9.03. Effect of Supplemental Indentures....................................... 70 SECTION 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures. 71 SECTION 9.05. Payment for Consent..................................................... 71
ARTICLE X Consolidation, Merger, Sale or Conveyance SECTION 10.01. Consolidations and Mergers of the Company............................... 71 SECTION 10.02. Rights and Duties of Successor Corporation.............................. 72
ARTICLE XI Satisfaction and Discharge of Indenture; Defeasance; Unclaimed Moneys SECTION 11.01. Applicability of Article................................................ 72 SECTION 11.02. Satisfaction and Discharge of Indenture; Defeasance..................... 73 SECTION 11.03. Conditions of Defeasance................................................ 74 SECTION 11.04. Application of Trust Money.............................................. 75 SECTION 11.05. Repayment to Company.................................................... 76 SECTION 11.06. Indemnity for U.S. Government Obligations............................... 76 SECTION 11.07. Reinstatement........................................................... 76
ARTICLE XII Miscellaneous Provisions SECTION 12.01. Successors and Assigns of Company Bound by Indenture.................... 76 SECTION 12.02. Acts of Board, Committee or Officer of Successor Company Valid.......... 76 SECTION 12.03. Required Notices or Demands............................................. 76 SECTION 12.04. Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New York.................................. 78 SECTION 12.05. Officers' Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Company............................... 78 SECTION 12.06. Payments Due on Legal Holidays.......................................... 78 SECTION 12.07. Provisions Required by Trust Indenture Act to Control................... 78 SECTION 12.08. Computation of Interest on Debt Securities.............................. 79 SECTION 12.09. Rules by Trustee, Paying Agent and Registrar............................ 79 SECTION 12.10. No Recourse Against Others.............................................. 79 SECTION 12.11. Severability............................................................ 79 SECTION 12.12. Effect of Headings...................................................... 79 SECTION 12.13. Indenture May Be Executed in Counterparts............................... 79
ELECTRONIC DATA SYSTEMS CORPORATION Debt Securities CROSS REFERENCE SHEET* This Cross Reference Sheet shows the location in the Indenture of the provisions inserted pursuant to Sections 310-318(a), inclusive, of the Trust Indenture Act of 1939.
Indenture TIA Section Section - ----------- --------- 310 (a)(1)................................................... 7.10 (a)(2)................................................... 7.10 (a)(3)................................................... 7.10 (a)(4)................................................... 7.10 (a)(5)................................................... 7.10 (b)...................................................... 7.10 (c)...................................................... N.A.** 311 (a)...................................................... 7.11 (b)...................................................... 7.11 (c)...................................................... N.A. 3.12 (a)..................................................... 5.01 (b)...................................................... 5.02 (c)...................................................... 5.02 313 (a)...................................................... 5.04 (b)(1)................................................... 5.04 (b)(2)................................................... 5.04 (c)...................................................... 12.03 (d)...................................................... 5.04
- --------------------- * The Cross Reference Sheet is not part of the Indenture. ** N.A. means "Not Applicable."
Indenture TIA Section Section - ----------- --------- 314 (a)(1)................................................... 5.03(a) (a)(2)................................................... 5.03(b) (a)(3)................................................... 5.03(a) & (b) & 12.03 (a)(4)................................................... 4.05 (b)...................................................... N.A. (c)(1)................................................... 12.05 (c)(2)................................................... 12.05 (c)(3)................................................... N.A. (d)...................................................... 12.05 (e)...................................................... 4.06 315 (a)...................................................... 7.01(a) (b)...................................................... 6.07 & 12.03 (c)...................................................... 7.01 (d)...................................................... 7.01 (e)...................................................... 6.08 316 (a) (last sentence)...................................... 1.01 (a)(1)(A)................................................ 6.06 (a)(1)(B)................................................ 6.06 (a)(2)................................................... 9.01(d) (b)...................................................... 6.04 (c)...................................................... 5.05 317 (a)(1)................................................... 6.02 (a)(2)................................................... 6.02 (b)...................................................... 4.04 318 (a)...................................................... 12.07
INDENTURE dated as of August 12, 1996, between ELECTRONIC DATA SYSTEMS CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the "Company"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association (hereinafter sometimes 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 debentures, notes, bonds or other evidences of indebtedness to be issued in one or more series unlimited as to principal amount (herein called the "Debt Securities"), 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: That in order to declare the terms and conditions upon which the Debt Securities are authenticated, issued and delivered, and in consideration of the premises, and of the purchase and acceptance of the Debt Securities by the holders thereof, the Company and the Trustee covenant and agree with each other, for the benefit of the respective Holders from time to time of the Debt Securities or any series thereof as follows: ARTICLE I Definitions ----------- SECTION 1.01. Certain Terms Defined. The terms defined in this ---------------------- Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any Indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in force as of the date of original execution of this Indenture. "Affected Security" has the meaning specified in Section 3.02(b). ----------------- "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 Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Attributable Debt" means, as to any particular Sale and Leaseback ----------------- Transaction, at any date as of which the amount thereof is to be determined, the total amount determined by multiplying (i) the greater of (a) the fair value of the Real Property subject to such arrangement (as determined by any two of the Company's Chairman of the Board, Vice Chairman, President, Treasurer and Controller) or (b) the net proceeds of the sale of such Real Property to the lender or investor by (ii) a fraction, the numerator of which is the number of months in the unexpired initial term of the lease of such Real Property and the denominator of which is the number of months in the full initial term of such lease; provided, however, that Sale and Leaseback Transactions with respect to Real Property financed by obligations issued by a state or local governmental unit (whether or not tax exempt pursuant to Section 103(b)(4)(F), 103(b)(4)(E) or 103(b)(6) of the Internal Revenue Code, or any successor provision thereof) shall not be included in any calculation of Attributable Debt. "Authorized Newspaper" means a newspaper in an official language of -------------------- the country of publication customarily published at least once a day, and customarily published for at least five days in each calendar week, and of general circulation in such city or cities specified pursuant to Section 2.03 with respect to the Debt Securities of any series. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any business day in such city. "Bearer Holder" means, with respect to any Bearer Security or Coupon, ------------- the bearer thereof. "Bearer Security" means any Debt Security (with or without Coupons), --------------- title to which passes by delivery only, but does not include any Coupons. "Board of Directors" means either the Board of Directors of the ------------------ Company or any duly authorized committee or subcommittee of such Board, except as the context may otherwise require. "business day" means, when used with respect to any Place of Payment ------------ specified pursuant to Section 2.03, any day that is not a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in such Place of Payment are authorized or obligated by law to close, except as otherwise specified pursuant to Section 2.03. 2 "Company" means Electronic Data Systems Corporation, a Delaware ------- corporation, and, subject to the provisions of Article X, shall also include its successors and assigns. "Company Order" means a written order of the Company, signed by its ------------- Chairman of the Board, Vice Chairman, President or any Vice President and by its Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary. "Consolidated Net Tangible Assets" means, as of any date of -------------------------------- determination, the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any current liabilities for money borrowed having a maturity of less than 12 months but by its terms being renewable or extendible beyond 12 months from such date at the option of the borrower) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent balance sheet of the Company and its consolidated subsidiaries and computed in accordance with generally accepted accounting principles. "corporate trust office of the Trustee" or other similar term means ------------------------------------- the office of the Trustee in Houston, Texas at which the corporate trust business of the Trustee shall, at any particular time, be principally administered in the United States of America, which is on the date hereof at 600 Travis Street, 8th Floor, Houston, Texas 77002, Attention: Global Trust Services - - EDS, except that with respect to the presentation of Debt Securities for payment or for registration of transfer and exchange, such term shall also mean the office of the Trustee or the Trustee's agent in the Borough of Manhattan, the city and state of New York, which on the date hereof is at 55 Water Street, North Building, Room 234, Windows 20 and 21, New York, New York 10041, and the office of the Trustee in the city of Dallas, Texas, which on the date hereof is at 1201 Main Street, 18th Floor, Dallas, Texas 75202, in each case at which at any particular time its corporate agency business shall be conducted. "Coupon" means any interest coupon appertaining to any Bearer ------ Security. "Coupon Security" means any Bearer Security authenticated and --------------- delivered with one or more Coupons appertaining thereto. "Currency" means Dollars or Foreign Currency. -------- "Debt Security" or "Debt Securities" has the meaning stated in the ------------- --------------- first recital of this Indenture and more particularly means any debt security or debt securities, as the case may be, of any series authenticated and delivered under this Indenture. "Default" means any event which is, or after notice or passage of time ------- or both would be, an Event of Default. 3 "Depositary" means, unless otherwise specified by the Company pursuant ---------- to either Section 2.03 or 2.15, with respect to Debt Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, The Depository Trust Company, New York, New York, or any successor thereto registered as a clearing agency under the Exchange Act or other applicable statute or regulations. "Dollar" or "$" means such currency of the United States as at the ------ - time of payment is legal tender for the payment of public and private debts. "Dollar Equivalent" means, with respect to any monetary amount in a ----------------- Foreign Currency, at any time for the determination thereof, the amount of Dollars obtained by converting such Foreign Currency involved in such computation into Dollars at the spot rate for the purchase of Dollars with the applicable Foreign Currency as quoted by Citibank (unless another comparable financial institution is designated by the Company) in New York, New York, at approximately 11:00 a.m. (New York time) on the date two business days prior to such determination. "European Currency Units" has the meaning assigned to it from time to ----------------------- time by the Council of the European Communities. "European Communities" means the European Economic Community, the -------------------- European Coal and Steel Community and the European Atomic Energy Community. "Event of Default" has the meaning specified in Section 6.01. ---------------- "Exchange Act" means the Securities Exchange Act of 1934, as amended. ------------ "Floating Rate Security" means a Debt Security that provides for the ---------------------- payment of interest at a variable rate determined periodically by reference to an interest rate index specified pursuant to Section 2.03. "Foreign Currency" means a currency issued by the government of any ---------------- country other than the United States or a composite currency the value of which is determined by reference to the values of the currencies of any group of countries. "Funded Debt" means all indebtedness for money borrowed having a ----------- maturity of more than 12 months from the date as of which the amount thereof is to be determined. "Global Security" means with respect to any series of Debt Securities --------------- issued hereunder, a Debt Security which is executed by the Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction, all in accordance with this Indenture and any Indentures supplemental hereto, or 4 resolution of the Board of Directors and set forth in an Officers' Certificate, which shall be registered in the name of the Depositary or its nominee and which shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all the Outstanding Debt Securities of such series or any portion thereof, in either case having the same terms, including, without limitation, the same original issue date, date or dates on which principal is due and interest rate or method of determining interest. "Holder," "Holder of Debt Securities" or other similar terms means, ------ ------------------------- with respect to a Registered Security, the Registered Holder and, with respect to a Bearer Security or a Coupon, the Bearer Holder. "Indenture" means this instrument as originally executed, or, if --------- amended or supplemented as herein provided, as so amended or supplemented, and shall include the form and terms of particular series of Debt Securities as contemplated hereunder, whether or not a supplemental indenture is entered into with respect thereto. "Interest" includes, when used with respect to a Bearer Security, any -------- additional interest payable on such Bearer Security pursuant to Section 3.02 or 4.06. "Lien" means any mortgage, pledge, security interest, encumbrance, ---- lien or charge of any kind. "Mortgage" has the meaning specified in Section 4.07. -------- "Officers' Certificate" means a certificate signed by the Chairman of --------------------- the Board, the Vice Chairman, the President or any Vice President and by the Treasurer, the Secretary or any Assistant Treasurer or Assistant Secretary of the Company. Each such certificate shall include the statements provided for in Section 12.05, if applicable. "Opinion of Counsel" means an opinion in writing signed by legal ------------------ counsel for the Company (who may be an employee of the Company), or outside counsel for the Company who shall be reasonably satisfactory to the Trustee. Each such opinion shall include the statements provided for in Section 12.05, if applicable. "Original Issue Discount Debt Security" means any Debt 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 6.01. "Outstanding", when used with respect to any series of Debt ----------- Securities, means, as of the date of determination, all Debt Securities of that series theretofore authenticated and delivered under this Indenture, except: (i) Debt Securities of that series theretofore canceled by the Trustee or delivered to the Trustee for cancellation; 5 (ii) Debt Securities of that series 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 Debt Securities; provided, that, if -------- such Debt Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (iii) Debt Securities of that series which have been paid pursuant to Section 2.09 or in exchange for or in lieu of which other Debt Securities have been authenticated and delivered pursuant to this Indenture, other than any such Debt Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Debt Securities are held by a bona fide purchaser in whose hands such Debt Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite - -------- ------- principal amount of the Outstanding Debt Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Debt Securities owned by the Company or any other obligor upon the Debt Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Debt Securities which the Trustee knows to be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the Company or any other obligor upon the Debt Securities or an Affiliate of the Company or of such other obligor. In determining whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Debt Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01. In determining whether the Holders of the requisite principal amount of the Outstanding Debt Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a Debt Security denominated in one or more foreign currencies or currency units that shall be deemed to be Outstanding for such purposes shall be the Dollar Equivalent, determined in the manner provided as contemplated by Section 2.03 on the date of original issuance of such Debt Security, of the principal amount (or, in the case of any Original Issue Discount Security, the Dollar Equivalent on the date of original issuance of such Security of the amount determined as provided in the preceding sentence above) of such Debt Security. 6 "Person" means any individual, corporation, limited liability company, ------ partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "Place of Payment" means, when used with respect to the Debt ---------------- Securities of any series, the place or places where the principal of, and premium, if any, and interest on, the Debt Securities of that series are payable as specified pursuant to Section 2.03. "principal London office of the Trustee" means the office of the -------------------------------------- Trustee in the city of London, England, which on the date hereof is at Chase Manhattan Bank - London, Global Trust Services - Woolgate House, Coleman Street, 4th Floor, London, England EC2P 2HD, at which at any particular time its corporate agency business, including presentation of Debt Securities for payment or for registration of transfer and exchange, shall be conducted. "Real Property" means any real property, and any building, structure ------------- or other facility thereon, located in the United States (excluding its territories and possessions, but including Puerto Rico), owned or leased by the Company or any Subsidiary of the Company, the gross book value (without deduction of any depreciation reserves) of which on the date as of which the determination is being made exceeds 1% of Consolidated Net Tangible Assets, other than any such real property, building, structure or other facility or portion thereof (i) that is financed by obligations issued by a state or local governmental unit (whether or not tax exempt pursuant to Section 103(b)(4)(F), 103(b)(4)(E) or 103(b)(6) of the Internal Revenue Code of 1954, or any successor provision thereof in the Internal Revenue Code of 1986), (ii) that consists of approximately 175.35 acres currently known as the Company's Forest Lane property located in Dallas, Texas, and more particularly described on Exhibit A hereto, --------- (iii) that consists of approximately 381 acres and currently known as the Company's Plano headquarters property located in Plano, Texas, and more particularly described on Exhibit A hereto, or (iv) which if not owned or leased --------- by the Company or its Subsidiaries, in the opinion of the Board of Directors of the Company, would not have a material adverse effect on the business conducted by the Company and its Subsidiaries as an entirety. "Registered Holder" means the Person in whose name a Registered ----------------- Security is registered in the Debt Security Register (as defined in Section 2.07(a)). "Registered Security" means any Debt Security registered as to ------------------- principal and interest in the Debt Security Register (as defined in Section 2.07(a)). "Registrar" has the meaning set forth in Section 2.07(a). --------- "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- 7 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 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. "Restricted Subsidiary" means any Subsidiary that owns a Real --------------------- Property, except a Subsidiary that is engaged primarily in financing the operations of the Company or its Subsidiaries, or both, outside the states of the United States, and (a) more than 50% of whose net sales and operating revenues during the preceding four calendar quarters was derived from, or more than 50% of whose operating properties is located in, the United States (excluding its territories and possessions, but including Puerto Rico), or (b) more than 50% of whose assets consists of securities of other Restricted Subsidiaries. "Sale and Leaseback Transaction" has the meaning specified in Section ------------------------------ 4.08. "Securities Act" means the Securities Act of 1933, as amended. -------------- "Stated Maturity" means, with respect to any security, the date --------------- specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred). "Subsidiary" means a corporation, association, partnership or other ---------- entity of which more than 80% of the outstanding Voting Stock 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. "Trustee" initially means Texas Commerce Bank National Association and ------- any other Person or Persons appointed as such from time to time pursuant to Section 7.08, and, subject to the provisions of Article VII, includes its or their successors and assigns. If at any time there is more than one such Person, "Trustee" as used with respect to the Debt Securities of any series shall mean the Trustee with respect to the Debt Securities of that series. "Trust Indenture Act" (except as herein otherwise expressly provided) ------------------- means the Trust Indenture Act of 1939 as in force at the date of this Indenture as originally executed and, to the extent required by law, as amended. 8 "United States" means the United States of America (including the ------------- States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. "United States Alien" means any Person who, for United States Federal ------------------- income tax purposes, is a foreign corporation, a nonresident alien individual, a nonresident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more members of which is, for United States Federal income tax purposes, a foreign corporation, a nonresident alien individual or a nonresident alien fiduciary of a foreign estate or trust. "U.S. Government Obligations" means securities that are (x) direct --------------------------- obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof. "Voting Stock" means stock of the class or classes having general ------------ voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such corporation, association, partnership or other entity (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). "Yield to Maturity" means the yield to maturity, calculated at the ----------------- time of issuance of a series of Debt Securities, or, if applicable, at the most recent redetermination of interest on such series and calculated in accordance with accepted financial practice. SECTION 1.02. Incorporation by Reference of Trust Indenture Act. -------------------------------------------------- This Indenture is subject to the mandatory provisions of the Trust Indenture Act which are incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms have the following meanings: "indenture securities" means the Debt Securities. "indenture security holder" means a Holder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. 9 "obligor" on the indenture securities means the Company and any other obligor on the Debt Securities. All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, reference to another statute or defined by rules of the Securities and Exchange Commission have the meanings assigned to them by such definitions. SECTION 1.03. Rules of Construction. Unless the context otherwise ---------------------- requires: (1) a term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with United States generally accepted accounting principles; (3) "or" is not exclusive; (4) "including" means including without limitation; (5) words in the singular include the plural and words in the plural include the singular; and (6) the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with United States generally accepted accounting principles. ARTICLE II Debt Securities --------------- SECTION 2.01. Forms Generally. The Debt Securities and Coupons, if ---------------- any, of each series shall be in substantially the form established without the approval of any Holder by or pursuant to a resolution of the Board of Directors or in one or more Indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture or as may be required or appropriate to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange on which such series of Debt Securities may be listed, or to conform to general usage, or as may, consistently herewith, be determined by the officers 10 executing such Debt Securities and Coupons, as evidenced by their execution of the Debt Securities and Coupons. The definitive Debt Securities of each series and Coupons, if any, 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 Debt Securities and Coupons, as evidenced by their execution of such Debt Securities and Coupons. Each Bearer Security and each Coupon shall bear a legend substantially to the following effect: "Any United States Person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code." SECTION 2.02. Form of Trustee's Certificate of Authentication. The ------------------------------------------------ Trustee's Certificate of Authentication on all Debt Securities authenticated by the Trustee shall be in substantially the following form: TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Debt Securities of the series designated therein referred to in the within-mentioned Indenture. TEXAS COMMERCE BANK NATIONAL ASSOCIATION, As Trustee By..................... Authorized Signatory SECTION 2.03. Principal Amount; Issuable in Series. The aggregate ------------------------------------- principal amount of Debt Securities which may be executed, authenticated, delivered and outstanding under this Indenture is unlimited. The Debt Securities may be issued in one or more series. There shall be established, without the approval of any Holders, pursuant to authority granted by the Board of Directors and set forth in an Officers' Certificate, (which shall be signed by an officer to whom authority to establish the terms of each series of Debt Securities has been granted by the Board of Directors of the Company), or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the following: (1) the title of the Debt Securities of the series (which shall distinguish the Debt Securities of the series from all other Debt Securities); 11 (2) any limit upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of the series pursuant to this Article II); (3) the date or dates on which the principal and premium, if any, of the Debt Securities of the series is payable; (4) the rate or rates (which may be fixed or variable) at which the Debt Securities of the series shall bear interest, if any, or the method of determining such rate or rates, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable, or the method by which such date will be determined, in the case of Registered Securities, the record dates for the determination of Holders thereof to whom such interest is payable, and the basis upon which interest will be calculated if other than that of 360-day year of twelve thirty-day months; (5) the place or places, if any, in addition to or instead of the corporate trust office of the Trustee (in the case of Registered Securities) or the principal London office of the Trustee (in the case of Bearer Securities), where the principal of, and premium, if any, and interest, if any, on Debt Securities of the series shall be payable; (6) the price or prices at which, the period or periods within which and the terms and conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company; (7) whether Debt Securities of the series are to be issued as Registered Securities or Bearer Securities or both, and, if Bearer Securities are issued, whether Coupons will be attached thereto, whether Bearer Securities of the series may be exchanged for Registered Securities of the series and the circumstances under which and the places at which any such exchanges, if permitted, may be made; (8) if any Debt Securities of the series are to be issued as Bearer Securities or as one or more Global Securities representing individual Bearer Securities of the series, (x) whether the provisions of Sections 3.02 and 4.06 or other provisions for payment of additional interest or tax redemptions shall apply and, if other provisions shall apply, such other provisions; (y) whether interest in respect of any portion of a temporary Bearer Security of the series (delivered pursuant to Section 2.08) payable in respect of any interest payment date prior to the exchange of such temporary Bearer Security for definitive Bearer Securities of the series shall be paid to any clearing organization with respect to the portion of such 12 temporary Bearer Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such interest payment date; and (z) the terms upon which a temporary Bearer Security may be exchanged for one or more definitive Bearer Securities of the series; (9) the obligation, if any, of the Company to redeem, purchase or repay Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the price or prices at which and the period or periods within which and the terms and conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligations; (10) the terms, if any, upon which the Debt Securities of the series may be convertible into or exchanged for other Debt Securities or warrants for indebtedness or other securities of any kind of the Company or any other obligor and the terms and conditions upon which such conversion or exchange shall be effected, including the initial conversion or exchange price or rate, the conversion or exchange period and any other provision in addition to or in lieu of those described herein; (11) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Debt Securities of the series shall be issuable; (12) if the amount of principal of or any premium or interest on Debt Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts will be determined; (13) if the principal amount payable at the Stated Maturity of Debt Securities of the series will not be determinable as of any one or more dates prior to such Stated Maturity, the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the Stated Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined); and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of Dollar Equivalent; (14) any changes or additions to Article XI, including the addition of additional covenants that may be subject to the covenant defeasance option pursuant to Section 11.02(b)(ii); 13 (15) if other than such coin or Currency of the United States as at the time of payment is legal tender for payment of public and private debts, the coin or Currency or Currencies or units of two or more Currencies in which payment of the principal of, and premium, if any, and interest on, Debt Securities of the series shall be payable; (16) if other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02; (17) any addition to or change in the Events of Default with respect to the Debt Securities of the series and any change in the right of the Trustee or the Holders to declare the principal of, and premium and interest on, such Debt Securities due and payable; (18) if the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities, the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Debt Securities in definitive registered form; and the Depositary for such Global Security or Securities and the form of any legend or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legend referred to in Section 2.15; (19) any trustees, authenticating or paying agents, transfer agents or registrars; (20) the applicability of, and any addition to or change in the covenants and definitions currently set forth in this Indenture or in the terms currently set forth in Article X; (21) with regard to Debt Securities of the series that do not bear interest, the dates for certain required reports to the Trustee; and (22) any other terms of the Debt Securities of the series (which terms shall not be prohibited by the provisions of this Indenture). All Debt Securities of any one series and the Coupons, if any, appertaining thereto shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors and as set forth in such Officers' Certificate or in any such Indenture supplemental hereto. SECTION 2.04. Execution of Debt Securities. The Debt Securities and ----------------------------- the Coupons, if any, shall be signed on behalf of the Company by its Chairman of the 14 Board, its Vice Chairman, its President or a Vice President and by its Secretary, an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon the Debt Securities and Coupons may be the manual or facsimile signatures of the present or any future such authorized officers and may be imprinted or otherwise reproduced on the Debt Securities and Coupons. The seal of the Company, if any, may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Debt Securities and Coupons. Only such Debt Securities and Coupons as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, signed manually by the Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Debt Security or Coupon executed by the Company shall be conclusive evidence that the Debt Security or Coupon so authenticated has been duly authenticated and delivered hereunder. In case any officer of the Company who shall have signed any of the Debt Securities or Coupons shall cease to be such officer before the Debt Securities or Coupons so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Debt Securities or Coupons nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Debt Securities or Coupons had not ceased to be such officer of the Company; and any Debt Security or Coupon may be signed on behalf of the Company by such Persons as, at the actual date of the execution of such Debt Security or Coupon, shall be the proper officers of the Company, although at the date of such Debt Security or Coupon or of the execution of this Indenture any such Person was not such officer. SECTION 2.05. Authentication and Delivery of Debt Securities. At any ----------------------------------------------- time and from time to time after the execution and delivery of this Indenture, the Company may deliver Debt Securities, with appropriate Coupons, if any, of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Debt Securities, and the Trustee shall thereupon authenticate and deliver said Debt Securities and Coupons in accordance with the Company Order. In authenticating such Debt Securities and Coupons, and accepting the additional responsibilities under this Indenture in relation to such Debt Securities and Coupons, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon: (1) a copy of any resolution or resolutions of the Board of Directors, certified by the Secretary or Assistant Secretary of the Company, authorizing the terms of issuance and the form of any series of Debt Securities and Coupons or authorizing the approval of any such terms of issuance and form by an officer of the Company; (2) an executed supplemental indenture, if any; 15 (3) an Officers' Certificate; and (4) an Opinion of Counsel prepared in accordance with Section 12.05 which shall also state: (a) that the form of such Debt Securities and Coupons has been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.01 in conformity with the provisions of this Indenture; (b) that the terms of such Debt Securities and Coupons have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.03 in conformity with the provisions of this Indenture; (c) that such Debt Securities and Coupons, 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 except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability; (d) that the Company has the corporate power to issue such Debt Securities and Coupons and has duly taken all necessary corporate action with respect to such issuance; (e) that the issuance of such Debt Securities and Coupons will not contravene the certificate of incorporation or by-laws of the Company or result in any material violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement known to such counsel by which the Company is bound; (f) that authentication and delivery of such Debt Securities and Coupons and the execution and delivery of any supplemental indenture will not violate the terms of this Indenture; and (g) such other matters as the Trustee may reasonably request. 16 Such Opinion of Counsel need express no opinion as to whether a court in the United States would render a money judgment in a currency other than that of the United States. The Trustee shall have the right to decline to authenticate and deliver any Debt Securities or Coupons under this Section 2.05 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors, trustees or vice presidents shall determine that such action would expose the Trustee to personal liability to existing Holders. The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate Debt Securities and Coupons, if any, of any series. Unless limited by the terms of such appointment, an authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Registrar, paying agent or agent for service of notices and demands. Unless otherwise provided in the form of Debt Security for any series, each Debt Security shall be dated the date of its authentication. SECTION 2.06. Denomination of Debt Securities. Unless otherwise -------------------------------- provided in the form of Debt Security for any series, the Debt Securities of each series shall be issuable only as Registered Securities in such denominations as shall be specified or contemplated by Section 2.03. In the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof. SECTION 2.07. Registration of Transfer and Exchange. -------------------------------------- (a) The Company shall keep or cause to be kept a register for each series of Registered Securities issued hereunder (hereinafter collectively referred to as the "Debt Security Register"), in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and the transfer of Registered Securities as provided in this Article II. At all reasonable times the Debt Security Register shall be open for inspection by the Trustee. Subject to Section 2.15, upon due presentment for registration of transfer of any Registered Security at any office or agency to be maintained by the Company in accordance with the provisions of Section 4.02, the Company shall execute and, upon receipt of a Company Order requesting authentication and delivery, the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Registered Security or Registered Securities of authorized denominations for a like aggregate principal amount. Except as otherwise specified pursuant to Section 2.03, in no event may Registered Securities, including 17 Registered Securities received in exchange for Bearer Securities, be exchanged for Bearer Securities. Unless and until otherwise determined by the Company by resolution of the Board of Directors, the register of the Company for the purpose of registration, exchange or registration of transfer of the Registered Securities shall be kept at the corporate trust office of the Trustee and, for this purpose, the Trustee shall be designated "Registrar". Registered Securities of any series (other than a Global Security, except as set forth below) may be exchanged for a like aggregate principal amount of Registered Securities of the same series of other authorized denominations. Subject to Section 2.15, Registered Securities to be exchanged shall be surrendered at the office or agency to be maintained by the Company as provided in Section 4.02, and the Company shall execute and, upon receipt of a Company Order requesting the authentication and delivery, the Trustee shall authenticate and deliver in exchange therefor the Registered Security or Registered Securities which the Holder making the exchange shall be entitled to receive. At the option of the Holder of Bearer Securities of any series, except as otherwise specified as contemplated by Section 2.03(7) or 2.03(18) with respect to a Global Security representing Bearer Securities, Bearer Securities of such series may be exchanged for Registered Securities (if the Debt Securities of such series are issuable as Registered Securities) or Bearer Securities of the same series, of any authorized denomination or denominations, of like tenor and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at the office or agency of the Company maintained for such purpose, with all unmatured Coupons and all matured Coupons in Default thereto appertaining; provided, however, that delivery of a Bearer Security -------- ------- shall occur only outside the United States. If such Holder is unable to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in Default, such exchange may be effected if such Holder's Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any paying agent harmless. If thereafter such Holder shall surrender to any paying agent any such missing Coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in -------- ------- Section 2.12, interest represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an office or agency located outside the United States. Whenever any Debt Securities are so surrendered for exchange, the Company shall execute, and, upon receipt of a Company Order requesting the 18 authentication and delivery, the Trustee shall authenticate and deliver, the Debt Securities that the Holder making the exchange is entitled to receive. Notwithstanding the foregoing, the exchange of Bearer Securities for Registered Securities will be subject to the provisions of United States income tax laws and regulations applicable to Debt Securities in effect at the time of such exchange. (b) All Registered Securities presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Registered Holder or his attorney duly authorized in writing. All Debt Securities issued in exchange for or upon transfer of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Debt Securities surrendered for such exchange or transfer. No service charge shall be made for any exchange or registration of transfer of Debt Securities (except as provided by Section 2.09), but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto, other than those expressly provided in this Indenture to be made at the Company's own expense or without expense or without charge to the Holders. The Company shall not be required (a) to issue, register the transfer of or exchange any Debt Securities for a period of 15 days next preceding the day of any mailing of notice of redemption of Debt Securities of such series or (b) to register the transfer of or exchange any Debt Securities selected, called or being called for redemption; provided, however, that, if specified pursuant -------- ------- to Section 2.03, any Bearer Securities of any series that are exchangeable for Registered Securities and that are called for redemption pursuant to Section 3.02 may, to the extent permitted by applicable law, be exchanged for one or more Registered Securities of such series during the period preceding the redemption date therefor. Prior to the due presentation for registration of transfer of any Debt Security, the Company, the Trustee, any paying agent or any Registrar may deem and treat the Person in whose name a Debt Security is registered as the absolute owner of such Debt Security for the purpose of receiving payment of principal of, and premium, if any, and interest on, such Debt Security and for all other purposes whatsoever, whether or not such Debt Security is overdue, and none of the Company, the Trustee, any paying agent or Registrar shall be affected by notice to the contrary. 19 Title to any Bearer Security and any Coupons appertaining thereto shall pass by delivery. The Company, the Trustee, the paying agent and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any Coupon as the absolute owner of such Bearer Security or Coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or Coupon be overdue, and none of the Company, the Trustee, the paying agent or any agent of the Company or the Trustee shall be affected by notice to the contrary. SECTION 2.08. Temporary Debt Securities. Pending the preparation of -------------------------- definitive Debt Securities of any series, the Company may execute and, upon receipt of a Company Order requesting the authentication and delivery, the Trustee shall authenticate and deliver temporary Debt Securities (printed, lithographed, photocopied, typewritten or otherwise produced) of any authorized denomination, and substantially in the form of the definitive Debt Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more Coupons or without Coupons, and with such omissions, insertions and variations as may be appropriate for temporary Debt Securities and Coupons, all as may be determined by the Company with the concurrence of the Trustee. Temporary Debt Securities and Coupons may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Debt Security shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Debt Securities. If temporary Debt Securities of any series are issued, the Company will cause definitive Debt Securities of such series to be prepared without unreasonable delay. Except as otherwise specified as contemplated by Section 2.03(8)(z) with respect to a series of Debt Securities issuable as Bearer Securities or as one or more Global Securities representing individual Bearer Securities of the series, (a) after the preparation of definitive Debt Securities of such series, the temporary Debt Securities of such series shall be exchangeable for definitive Debt Securities of such series upon surrender of the temporary Debt Securities of such series at the office or agency of the Company in a Place of Payment for such series, without charge to the Holder thereof, except as provided in Section 2.07 in connection with a transfer and except that a Person receiving definitive Bearer Securities shall bear the cost of insurance, postage, transportation and the like unless otherwise specified pursuant to Section 2.03, and (b) upon surrender for cancellation of any one or more temporary Debt Securities of any series (accompanied by any unmatured Coupons appertaining thereto), the Company shall execute and, upon receipt of a Company Order requesting the authentication and delivery, the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Debt Securities of the same series of authorized denominations and of like tenor; provided, however, that no definitive Bearer Security shall be -------- ------- delivered in exchange for a temporary Registered Security; and provided, -------- further, however, that delivery of a Global Security representing individual - ------- ------- Bearer Securities or a Bearer Security shall occur only 20 outside the United States. Until so exchanged, temporary Debt Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of such series, except as otherwise specified as contemplated by Section 2.03(8)(y) with respect to the payment of interest on Global Securities in temporary form. Unless otherwise specified pursuant to Section 2.03, the Company will execute and deliver each definitive Global Security representing individual Bearer Securities and each Bearer Security to the Trustee at its principal office in London or such other place outside the United States specified pursuant to Section 2.03. Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the individual Debt Securities represented thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced for all purposes by the amount to exchanged and endorsed. SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities. ----------------------------------------------------- If (i) any mutilated Debt Security or any mutilated Coupon with the Coupon Security to which it appertains (and all unmatured Coupons attached thereto) is surrendered to the Trustee at its corporate trust office (in the case of Registered Securities) or at its principal London office (in the case of Bearer Securities) or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Debt Security or any Coupon, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them and any paying agent harmless, and neither the Company nor the Trustee receives notice that such Debt Security or Coupon has been acquired by a bona fide purchaser, then the Company shall execute and, upon receipt of a Company Order requesting the authentication and delivery, the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt Security or in exchange for the Coupon Security to which such mutilated, destroyed, lost or stolen Coupon appertained, a new Debt Security of the same series of like tenor, form, terms and principal amount, bearing a number not contemporaneously Outstanding, and, in the case of a Coupon Security, with such Coupons attached thereto that neither gain nor loss in interest shall result from such exchange or substitution. Upon the issuance of any substituted Debt Security, 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 connected therewith. In case any Debt Security or Coupon which has matured or is about to mature or which has been called for redemption shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Debt Security or Coupon, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Debt Security or Coupon) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as either may 21 require to save it harmless from all risk, however remote, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Debt Security or Coupon and of the ownership thereof; provided, however, that payment of principal of, and -------- ------- premium, if any, and interest on, Bearer Securities or Coupons shall, except as otherwise provided in Section 2.12, be payable only at an office or agency located outside the United States. Every substituted Debt Security of any series, with its Coupons, if any, issued pursuant to the provisions of this Section 2.09 by virtue of the fact that any Debt Security or Coupon is destroyed, lost or stolen shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security or Coupon shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debt Securities of that series and Coupons, if any, duly issued hereunder. All Debt Securities and Coupons, if any, shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons, and shall preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. SECTION 2.10. Cancellation of Surrendered Debt Securities. All Debt -------------------------------------------- Securities surrendered for payment, redemption, registration of transfer or exchange and all Coupons surrendered for payment or exchange shall, if surrendered to the Company or any paying agent or a Registrar, be delivered to the Trustee for cancellation by it, or if surrendered to the Trustee, shall be canceled by it, and no Debt Securities or Coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. All canceled Debt Securities and Coupons held by the Trustee shall be destroyed (subject to the record retention requirements of the Exchange Act) and certification of their destruction (or retention) delivered to the Company, unless otherwise directed. On request of the Company, the Trustee shall deliver to the Company canceled Debt Securities and Coupons held by the Trustee. If the Company shall acquire any of the Debt Securities or Coupons, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented thereby unless and until the same are delivered or surrendered to the Trustee for cancellation. The Company may not issue new Debt Securities or Coupons to replace Debt Securities or Coupons it has redeemed, paid or delivered to the Trustee for cancellation. SECTION 2.11. Provisions of the Indenture and Debt Securities for the ------------------------------------------------------- Sole Benefit of the Parties and the Holders. Nothing in this Indenture or in - -------------------------------------------- the Debt Securities or Coupons, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto, the Holders or any Registrar or paying agent, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all its covenants, conditions and 22 provisions being for the sole benefit of the parties hereto, the Holders and any Registrar and paying agents. SECTION 2.12. Payment of Interest; Interest Rights Preserved. ----------------------------------------------- (a) Interest on any Registered Security that is payable and is punctually paid or duly provided for on any interest payment date shall be paid to the Person in whose name such Registered Security is registered at the close of business on the regular record date for such interest notwithstanding the cancellation of such Registered Security upon any transfer or exchange subsequent to the regular record date. In case a Coupon Security of any series is surrendered in exchange for a Registered Security of such series after the close of business (at an office or agency in a Place of Payment for such series) on any regular record date and before the opening of business (at such office or agency) on the next succeeding interest payment date, such Coupon Security shall be surrendered without the Coupon relating to such interest payment date and interest will not be payable on such interest payment date in respect of the Registered Security issued in exchange for such Coupon Security, but will be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. Payment of interest on Registered Securities shall be made at the corporate trust office of the Trustee (except as otherwise specified pursuant to Section 2.03), or at the option of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Debt Security Register or, if provided by the terms of the Registered Securities pursuant to Section 2.03 and in accordance with arrangements satisfactory to the Trustee, at the option of the Registered Holder by wire transfer to an account designated by the Registered Holder. (b) No interest shall be payable with respect to a Bearer Security or Coupon unless such certification requirements as are specified pursuant to Section 2.03(8) are satisfied with respect to such Bearer Security or Coupon. Interest on any Coupon Security that is payable and is punctually paid or duly provided for on any interest payment date shall be paid to the Holder of the Coupon that has matured on such interest payment date upon surrender of such Coupon on such interest payment date at the principal London office of the Trustee or at such other Place of Payment outside the United States specified pursuant to Section 2.03. Interest on any Bearer Security (other than a Coupon Security) that is payable and is punctually paid or duly provided for on any interest payment date shall be paid to the Holder of the Bearer Security upon presentation of such Bearer Security and notation thereon on such interest payment date at the principal London office of the Trustee or at such other Place of Payment outside the United States specified pursuant to Section 2.03. Unless otherwise specified pursuant to Section 2.03, at the direction of the Holder of any Bearer Security or Coupon payable in Dollars, and subject to applicable laws and regulations, payments in respect of such Bearer Security or Coupon will be 23 made by check drawn on a bank in New York, New York or, if provided by the terms of such Bearer Security or Coupon pursuant to Section 2.03 and in accordance with arrangements satisfactory to the Trustee, by wire transfer to a Dollar account maintained by such Holder with a bank outside the United States. If such payment at the offices of all paying agents outside the United States becomes illegal or is effectively precluded because of the imposition of exchange controls or similar restrictions on the full payment or receipt of such amounts in Dollars, the Company will appoint an office or agent in the United States at which such payment may be made. Unless otherwise specified pursuant to Section 2.03, at the direction of the Holder of any Bearer Security or Coupon payable in a Foreign Currency, payment on such Bearer Security or Coupon will be made by a check drawn on a bank outside the United States or, if provided by the terms of such Bearer Security or Coupon pursuant to Section 2.03 and in accordance with arrangements satisfactory to the Trustee, by wire transfer to an appropriate account maintained by such Holder outside the United States. Except as provided in this paragraph, no payment on any Bearer Security or Coupon will be made by mail to an address in the United States or by transfer to an account maintained by the Holder thereof in the United States. (c) Subject to the foregoing provisions of this Section 2.12 and Section 2.17, each Debt Security of a particular series delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security of the same series shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security. SECTION 2.13. Securities Denominated in Foreign Currencies. --------------------------------------------- (a) Except as otherwise specified pursuant to Section 2.03 for Bearer Securities of any series, payment of the principal of, and premium, if any, and interest on, Bearer Securities of such series denominated in any Currency will be made in such Currency. (b) Except as otherwise specified pursuant to Section 2.03 for Registered Securities of any series, payment of the principal of, and premium, if any, and interest on, Registered Securities of such series denominated in any Currency will be made in Dollars. (c) For the purposes of calculating the principal amount of Debt Securities of any series denominated in a Foreign Currency or in units of two or more Foreign Currencies (including European Currency Units) for any purpose under this Indenture, the principal amount of such Debt Securities at any time Outstanding shall be deemed to be the Dollar Equivalent of such principal amount as of the date of any such calculation. In the event any Foreign Currency or Currencies or units of two or more Currencies in which any payment with respect to any series of Debt Securities may be made ceases to be a freely convertible Currency on United States Currency markets, for 24 any date thereafter on which payment of principal of, or premium, if any, or interest on, the Debt Securities of a series is due, the Company shall select the Currency of payment for use on such date, all as provided in the Debt Securities of such series. In such event, the Company shall notify the Trustee of the Currency which it has selected to constitute the funds necessary to meet the Company's obligations on such payment date and of the amount of such Currency to be paid. Such amount shall be determined as provided in the Debt Securities of such series. The payment with respect to such payment date shall be deposited with the Trustee by the Company solely in the Currency so selected. SECTION 2.14. Wire Transfers. Notwithstanding any other provision to --------------- the contrary in this Indenture, the Company may make any payment of monies required to be deposited with the Trustee on account of principal of, or premium, if any, or interest on, the Debt Securities (whether pursuant to optional or mandatory redemption payments, interest payments or otherwise) by wire transfer in immediately available funds to an account designated by the Trustee on or before the date such moneys are to be paid to the Holders of the Debt Securities in accordance with the terms hereof. SECTION 2.15. Securities Issuable in the Form of a Global Security. ----------------------------------------------------- (a) If the Company shall establish pursuant to Sections 2.01 and 2.03 that the Debt Securities of a particular series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee or its agent shall, upon receipt of a Company Order requesting authentication and delivery in accordance with Section 2.05, authenticate and deliver, such Global Security or Securities, which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding Debt Securities of such series to be represented by such Global Security or Securities, or such portion thereof as the Company shall specify in an Officers' Certificate, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or its nominee, (iii) shall be delivered by the Trustee or its agent to the Depositary or pursuant to the Depositary's instruction and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for the individual Debt Securities represented hereby, this Global Security may not be transferred except as whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary", or such other legend as may then be required by the Depositary for such Global Security or Securities. (b) Notwithstanding any other provision of this Section 2.15 or of Section 2.07 to the contrary, and subject to the provisions of paragraph (c) below, unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for definitive Debt Securities in registered form, a Global Security may be transferred, in whole but not in part and in the manner provided in Section 2.07, only by the Depositary to a nominee of the Depositary for such Global Security, or by a 25 nominee of the Depositary to the Depositary or another nominee of the Depositary, or by the Depositary or a nominee of the Depositary to a successor Depositary for such Global Security selected or approved by the Company, or to a nominee of such successor Depositary. (c) (i) If at any time the Depositary for a Global Security or Securities notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or Securities or if at any time the Depositary for the Debt Securities for such series shall no longer be eligible or in good standing under the Exchange Act or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to such Global Security or Securities. If a successor Depositary for such Global Security or Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company shall execute, and the Trustee or its agent, upon receipt of a Company Order for the authentication and delivery of such individual Debt Securities of such series in exchange for such Global Security, will authenticate and deliver, individual Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security or Securities. (ii) The Company may at any time and in its sole discretion determine that the Debt Securities of any series or portion thereof issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Debt Securities of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such series or portion thereof in exchange for such Global Security or Securities. (iii) If specified by the Company pursuant to Sections 2.01 and 2.03 with respect to Debt Securities issued or issuable in the form of a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for individual Debt Securities of such series of like tenor and terms in definitive form on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon the Company shall execute, and the Trustee upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, shall authenticate and deliver, without service charge, (1) to each Person specified by such Depositary a new Debt Security or Securities of the same series of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (2) to such Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal 26 amount of the surrendered Global Security and the aggregate principal amount of Debt Securities delivered to Holders thereof. (iv) In any exchange provided for in any of the preceding three paragraphs, the Company will execute and the Trustee, upon receipt of a Company Order requesting the authentication and delivery of individual Debt Securities, will authenticate and deliver individual Debt Securities. Upon the exchange of the entire principal amount of a Global Security for individual Debt Securities, such Global Security shall be canceled by the Trustee or its agent. Except as provided in the preceding paragraph, Registered Securities issued in exchange for a Global Security pursuant to this Section 2.15 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or the Registrar. The Trustee or the Registrar shall deliver such Registered Securities to the Persons in whose names such Registered Securities are so registered. (v) Payments in respect of the principal of, premium, if any, and interest on any Debt Securities registered in the name of the Depositary or its nominee will be payable to the Depositary or such nominee in its capacity as the registered owner of such Global Security. The Company and the Trustee may treat the person in whose names the Debt Securities, including the Global Security, are registered as the owner thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. None of the Company, the Trustee, any Registrar, the paying agent or any agent of the Company or the Trustee will have any responsibility or liability for (a) any aspect of the records relating to or payments made on account of the beneficial ownership interests of the Global Security by the Depositary or its nominee or any of the Depositary's direct or indirect participants, or for maintaining, supervising or reviewing any records of the Depositary, its nominee or any of its direct or indirect participants relating to the beneficial ownership interests of the Global Security, (b) the payments to the beneficial owners of the Global Security of amounts paid to the Depositary or its nominee, or (c) for any other matter relating to the actions and practices of the Depositary, its nominee or any of its direct or indirect participants. None of the Company, the Trustee or any such agent will be liable for any delay by the Depositary, its nominee, or any of its direct or indirect participants in identifying the beneficial owners of the Debt Securities, and the Company and the Trustee may conclusively rely on, and will be protected in relying on, instructions from the Depositary or its nominee for all purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Debt Securities to be issued). The Trustee shall deliver individual Bearer Securities issued in exchange for a Global Security pursuant to this Section 2.15 to the Persons and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee; provided, however, that individual Bearer Securities -------- ------- shall be delivered in exchange for a Global 27 Security only in accordance with the procedures set forth in Section 2.07 and as may be specified pursuant to Section 2.03. Notwithstanding the foregoing, the exchange of Bearer Securities for Registered Securities will be subject to the provisions of United States income tax laws and regulations applicable to Debt Securities in effect at the time of such exchange. SECTION 2.16. Medium Term Securities. Notwithstanding any contrary ----------------------- provision herein, if all Debt Securities of a series are not to be originally issued at one time, it shall not be necessary for the Company to deliver to the Trustee an Officers' Certificate, resolutions of the Board of Directors, supplemental indenture, Opinion of Counsel or Company Order or any other document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 12.05 at or prior to the time of authentication of each Debt Security of such series if such documents are delivered to the Trustee or its agent at or prior to the authentication upon original issuance of the first such Debt Security of such series to be issued; provided, that any subsequent request by the Company to the -------- Trustee to authenticate Debt Securities of such series upon original issuance shall constitute a representation and warranty by the Company that, as of the date of such request, the statements made in the Officers' Certificate delivered pursuant to Section 2.05 and 12.05 shall be true and correct as if made on such date and that the Opinion of Counsel delivered at or prior to such time of authentication of an original issuance of Debt Securities shall specifically state that it shall relate to all subsequent issuances of Debt Securities of such series that are identical to the Debt Securities issued in the first issuance of Debt Securities of such series. A Company Order delivered by the Company to the Trustee in the circumstances set forth in the preceding paragraph may provide that Debt Securities which are the subject thereof will be authenticated and delivered by the Trustee or its agent on original issue from time to time upon the written order delivered to the Trustee or its agent by Persons designated in such Company Order and that such Persons are authorized to determine, consistent with the Officers' Certificate, supplemental indenture or resolution of the Board of Directors relating to such Company Order, such terms and conditions of such Debt Securities as are specified in such Officers' Certificate, supplemental indenture or such resolution. SECTION 2.17. Defaulted Interest. ------------------- (a) Any interest on any Debt Security of a particular series which is payable, but is not punctually paid or duly provided for, on the dates and in the manner provided in the Debt Securities of such series and in this Indenture (herein called "Defaulted Interest") shall, if such Debt Security is a Registered Security, forthwith cease to be payable to the Registered Holder thereof on the relevant record date by virtue of having been such Registered Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below: 28 (i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series 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 such Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage pre-paid, to each Holder thereof at its address as it appears in the Security Register, not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series are registered at the close of business on such special record date. In case a Coupon Security of any such series is surrendered in exchange for a Registered Security of such series after the close of business (at an office or agency in a Place of Payment for such series) on any special record date and before the opening of business (at such office or agency) on the related proposed date of payment of Defaulted Interest, such Coupon Security shall be surrendered without the Coupon relating to such proposed date of payment and Defaulted Interest will not be payable on such proposed date of payment in respect of the Registered Security issued in exchange for such Coupon Security, but will be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. (ii) The Company may make payment of any Defaulted Interest on the Registered Securities of such series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Registered Securities of such series 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. 29 (b) Any Defaulted Interest payable in respect of Bearer Securities of any series shall be payable pursuant to such procedures as may be satisfactory to the Trustee in such manner that there is no discrimination between the Holders of Registered Securities (if any) and Bearer Securities of such series, and notice of the payment date therefor shall be given by the Trustee, in the name and at the expense of the Company, in the manner provided in Section 12.03 not more than 25 days and not less than 20 days prior to the date of the proposed payment. SECTION 2.18 Judgments. The Company may provide pursuant to Section ---------- 2.03 for Debt Securities of any series that (a) the obligation, if any, of the Company to pay the principal of, and premium, if any, and interest on, the Debt Securities of any series in a Foreign Currency or Dollars (the "Designated Currency") as may be specified pursuant to Section 2.03 is of the essence and agrees that, to the fullest extent possible under applicable law, judgments in respect of Debt Securities of such series shall be given in the Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency of the principal of, and premium, if any, and interest on, such Debt Securities shall, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency that the Holder receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other Currency (after any premium and cost of exchange) on the business day in the country of issue of the Designated Currency or in the international banking community (in the case of a composite currency) immediately following the day on which such Holder receives such payment; (c) if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and (d) any obligation of the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect. ARTICLE III Redemption of Debt Securities ----------------------------- SECTION 3.01. Applicability of Article. The provisions of this ------------------------- Article shall be applicable to the Debt Securities of any series which are redeemable before their Stated Maturity except as otherwise specified as contemplated by Section 2.03 for Debt Securities of such series. SECTION 3.02. Tax Redemption; Special Tax Redemption. (a) Unless --------------------------------------- otherwise specified pursuant to Section 2.03, Bearer Securities of any series may be redeemed at the option of the Company in whole, but not in part, at any time, on giving not less than 30 or more than 60 days' notice in accordance with Section 3.03 (which 30 notice shall be irrevocable), at the redemption price thereof (calculated without premium), plus interest accrued to the redemption date, if the Company has or will become obligated to pay additional interest on such Bearer Securities pursuant to Section 4.06 as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or any change in the application or official interpretation of such laws, regulations or rulings, which change or amendment becomes effective on or after the date on which any Person (including any Person acting as underwriter, broker or dealer) agrees to purchase any of such Bearer Securities pursuant to their original issuance, and such obligation cannot be avoided by the Company taking reasonable measures available to it; provided, that no such notice of -------- redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay such additional interest were a payment in respect of the Bearer Securities of that series then due. Prior to the publication of any notice of redemption pursuant to this Section 3.02(a), the Company shall deliver to the Trustee (i) an Officers' Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred and (ii) an Opinion of Counsel to the effect that the Company has or will become obligated to pay such additional interest as a result of such change or amendment. (b) Unless otherwise specified pursuant to Section 2.03, if the Company shall determine that any payment made outside the United States by the Company or any of its paying agents in respect of any Bearer Security or Coupon, if any, that is not a Floating Rate Security (an "Affected Security") would, under any present or future laws or regulations of the United States, be subject to any certification, documentation, information or other reporting requirement of any kind, the effect of which requirement is the disclosure to the Company, any paying agent or any governmental authority of the nationality, residence or identity of a beneficial owner of such Affected Security that is a United States Alien (other than the certification requirements specified in Treas. Reg. 1.163- 5(c)(2)(i)(D)(3) and other than such a requirement (i) that would not be applicable to a payment made by the Company or any one of its paying agents (A) directly to the beneficial owner or (B) to a custodian, nominee or other agent of the beneficial owner, or (ii) that can be satisfied by such custodian, nominee or other agent certifying to the effect that the beneficial owner is a United States Alien; provided, that, in any case referred to in clause (i)(B) or -------- (ii), payment by the custodian, nominee or agent to the beneficial owner is not otherwise subject to any such requirement), then the Company shall elect either (x) to redeem such Affected Securities in whole, but not in part, at the redemption price thereof (calculated without premium), plus interest accrued to the redemption date, or (y) if the conditions of the next succeeding paragraph are satisfied, to pay the additional interest specified in such paragraph. The Company shall make such determination as soon as practicable and publish prompt notice thereof in accordance with Section 12.03 (the "Determination Notice"), stating the effective date of such certification, documentation, information or other reporting requirement, whether the Company elects to redeem the Affected Securities or to pay the additional interest 31 specified in the next succeeding paragraph and (if applicable) the last date by which the redemption of the Affected Securities must take place, as provided in the next succeeding sentence. If any Affected Securities are to be redeemed pursuant to this paragraph, the redemption shall take place on such date, not later than one year after the publication of the Determination Notice, as the Company shall specify by notice given to the Trustee at least 60 days before the redemption date. Notice of such redemption shall be given to the Holders of the Affected Securities not more than 60 days or less than 30 days prior to the redemption date in accordance with Section 3.03. Notwithstanding the foregoing, the Company shall not so redeem the Affected Securities if the Company shall subsequently determine, not less than 30 days prior to the redemption date, that subsequent payments on the Affected Securities would not be subject to any such certification, documentation, information or other reporting requirement, in which case the Company shall publish prompt notice of such subsequent determination in accordance with Section 12.03, and any earlier redemption notice given pursuant to this paragraph shall be revoked and of no further effect. Prior to the publication of any Determination Notice pursuant to this paragraph, the Company shall deliver to the Trustee (i) an Officers' Certificate stating that the Company is entitled to make such determination and setting forth a statement of facts showing that the conditions precedent to the obligation of the Company to redeem the Affected Securities or to pay the additional interest specified in the next succeeding paragraph have occurred and (ii) an Opinion of Counsel to the effect that such conditions have occurred. If and so long as the certification, documentation, information or other reporting requirement referred to in the preceding paragraph would be fully satisfied by payment of a backup withholding tax or similar charge, the Company may elect to pay as additional interest such amounts as may be necessary so that every net payment made outside the United States following the effective date of such requirement by the Company or any of its paying agents in respect of any Affected Security of which the beneficial owner is a United States Alien (but without any requirement that the nationality, residence or identity of such beneficial owner be disclosed to the Company, any paying agent or any governmental authority) (after deduction or withholding for or on account of such backup withholding tax or similar charge that (i) would not be applicable in the circumstances referred to in the parenthetical clause of the first sentence of the preceding paragraph or (ii) is imposed as a result of presentation of any such Affected Security for payment more than 15 days after the date on which such payment became due and payable or on which payment thereof was duly provided for, whichever occurred later), will not be less than the amount provided in any such Affected Security to be then due and payable. If the Company elects to pay additional interest pursuant to this paragraph, the Company shall have the right to redeem the Affected Securities at any time in whole, but not in part, at the redemption price thereof (calculated without premium), plus interest accrued to the redemption date, subject to the provisions of the last three sentences of the immediately preceding paragraph. If the Company elects to pay additional interest pursuant to this paragraph and the condition specified in the first sentence of this paragraph should no longer be satisfied, then the Company shall redeem 32 the Affected Securities in whole, but not in part, at the redemption price thereof (calculated without premium), plus interest accrued to the redemption date, subject to the provisions of the last three sentences of the immediately preceding paragraph. Any redemption payments made by the Company pursuant to the two immediately preceding sentences shall be subject to the continuing obligation of the Company to pay additional interest pursuant to this paragraph. If the Company elects to, or is required to, redeem the Affected Securities pursuant to this paragraph, it shall publish prompt notice thereof in accordance with Section 12.03 . If the Affected Securities are to be redeemed pursuant to this paragraph, the redemption shall take place on such date, not later than one year after publication of the notice of redemption, as the Company shall specify by notice to the Trustee at least 60 days prior to the redemption date. SECTION 3.03. Notice of Redemption; Selection of Debt Securities. In --------------------------------------------------- case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of the Debt Securities of any series in accordance with their terms, the Company shall notify the Trustee and deliver certain documents as set forth in the third paragraph of this Section 3.03 and shall fix a date for redemption and shall give notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the Holders of Debt Securities of such series so to be redeemed as a whole or in part, in the manner provided in Section 12.03. The notice if given in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Debt Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security of such series. Each such notice of redemption shall specify the date fixed for redemption, the redemption price at which Debt Securities of such series are to be redeemed, the Place or Places of Payment that payment will be made upon presentation and surrender of such Debt Securities, that any interest accrued to the date fixed for redemption will be paid as specified in said notice, that the redemption is for a sinking fund payment (if applicable), that, unless otherwise specified in such notice, Coupon Securities of any series, if any, surrendered for redemption must be accompanied by all Coupons maturing subsequent to the date fixed for redemption, failing which the amount of any such missing Coupon or Coupons will be deducted from the redemption price, if the Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on the applicable redemption date pursuant to Section 2.15(c) or otherwise, the last date on which such exchanges may be made, that, unless the Company defaults in making such redemption payment or the paying agent is prohibited from making such payment pursuant to the terms of this Indenture, on and after the redemption date any interest thereon or on the portions thereof to be redeemed will cease to accrue, that in the case of Original Issue Discount Securities, original issue discount accrued after the date fixed for redemption will cease to accrue, 33 and the terms of the Debt Securities of that series pursuant to which the Debt Securities of that series are being redeemed. If less than all the Debt Securities of a series are to be redeemed the notice of redemption shall specify the CUSIP numbers of the Debt Securities of that series to be redeemed. In case any Debt Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a new Debt Security or Debt Securities of that series in principal amount equal to the unredeemed portion thereof, and with appropriate Coupons, will be issued. At least 60 days before the redemption date unless the Trustee consents to a shorter period, the Company shall give notice to the Trustee of the redemption date, the principal amount of Debt Securities to be redeemed and the series and terms of the Debt Securities pursuant to which such redemption will occur. Such notice shall be accompanied by an Officers' Certificate (which shall be signed by the Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer of the Company) and an Opinion of Counsel from the Company to the effect that such redemption will comply with the conditions herein. If fewer than all the Debt Securities of a series are to be redeemed, the record date relating to such redemption shall be selected by the Company and given to the Trustee, which record date shall be not less than 15 days after the date of notice to the Trustee. On or prior to the redemption date for any Registered Securities, 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) an amount of money in the Currency in which such Debt Securities are denominated (except as provided pursuant to Section 2.03) sufficient to pay the redemption price, plus interest accrued to the redemption date, of such Registered Securities or any portions thereof that are to be redeemed on that date. In the case of any redemption pertaining to Bearer Securities or Coupon Securities, the Company shall, no later than the business day prior to such redemption date, deposit with the Trustee or with a paying agent (other than the Company) an amount of money in the Currency in which such Debt Securities are denominated (except as provided pursuant to Section 2.03) sufficient to pay the redemption price, plus interest accrued to the redemption date, of such Bearer Securities or Coupon Securities or any portion thereof that are to be redeemed on the redemption date. If less than all the Debt Securities of like tenor and terms of a series are to be redeemed (other than pursuant to mandatory sinking fund redemptions) the Trustee shall select, in such manner as in its sole discretion it shall deem appropriate and fair, the Debt Securities of that series or portions thereof (in multiples of $1,000) to be redeemed. In any case where more than one Registered Security of such series is registered in the same name, the Trustee in its discretion may treat the aggregate principal amount so registered as if it were represented by one Registered Security of such series. The Trustee shall promptly notify the Company in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial redemption, the 34 principal amount thereof to be redeemed. If any Debt Security called for redemption shall not be so paid upon surrender thereof on such redemption date, the principal, premium, if any, and interest shall bear interest until paid from the redemption date at the rate borne by the Debt Securities of that series. If less than all the Debt Securities of unlike tenor and terms of a series are to be redeemed, the particular Debt Securities to be redeemed shall be selected by the Company. Provisions of this Indenture that apply to Debt Securities called for redemption also apply to portions of Debt Securities called for redemption. SECTION 3.04. Payment of Debt Securities Called for Redemption. If ------------------------------------------------- notice of redemption has been given as provided in Section 3.03, the Debt Securities or portions of Debt Securities of the series with respect to which such notice has been given shall become due and payable on the date and at the Place or Places of Payment stated in such notice at the applicable redemption price, together with any interest accrued to the date fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Debt Securities at the applicable redemption price, together with any interest accrued to said date) any interest on the Debt Securities or portions of Debt Securities of any series so called for redemption shall cease to accrue, any original issue discount in the case of Original Issue Discount Securities shall cease to accrue and any Coupons for such interest appertaining to any Coupon Securities to be redeemed, except to the extent described below, shall be void. On presentation and surrender of such Debt Securities at the Place or Places of Payment in said notice specified, the said Debt Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with any interest accrued thereon to the date fixed for redemption (except for interest accrued in respect of any Debt Securities or portions thereof called for redemption that have been delivered by the Company to the Trustee for cancellation). If any Coupon Security surrendered for redemption shall not be accompanied by all Coupons appertaining thereto maturing on or after the applicable redemption date, the redemption price for such Coupon Security may be reduced by an amount equal to the face amount of all such missing Coupons. If thereafter the Holder of such Coupon shall surrender to any paying agent outside the United States any such missing Coupon in respect of which a deduction shall have been made from the redemption price, such Holder shall be entitled to receive the amount so deducted. The surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee, if there be furnished to them such security or indemnity as they may require to save each of them and any paying agent harmless. Any Debt Security that is to be redeemed only in part shall be surrendered at the corporate trust office of the Trustee or such other office or agency of the Company as is specified pursuant to Section 2.03 (in the case of Registered Securities) and at the principal London office of the Trustee or such other office or agency of the Company outside the United States as is specified pursuant to Section 2.03 (in the case of Bearer 35 Securities) with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing, and the Company shall execute, and, upon receipt of a Company Order requesting authentication and delivery, the Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge, a new Debt Security or Debt Securities of the same series, of like tenor and form, 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 Debt Security so surrendered, and, in the case of a Coupon Security, with appropriate Coupons attached; except that if a Global Security is so surrendered, the Company shall execute, and, upon receipt of a Company Order requesting authentication and delivery, the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered. In the case of a Debt Security providing appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make a notation on such Debt Security of the payment of the redeemed portion thereof. SECTION 3.05. Mandatory and Optional Sinking Funds. The minimum ------------------------------------- amount of any sinking fund payment provided for by the terms of Debt Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Debt Securities of any series is herein referred to as an "optional sinking fund payment". In lieu of making all or any part of any mandatory sinking fund payment with respect to any Debt Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Debt Securities of that series (together with the unmatured Coupons, if any, appertaining thereto) theretofore purchased or otherwise acquired by the Company or (b) receive credit for the principal amount of Debt Securities of that series which have been redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Debt Securities; provided, that such Debt -------- Securities have not been previously so credited. Such Debt Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Debt Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly. SECTION 3.06. Redemption of Debt Securities for Sinking Fund. Not ----------------------------------------------- less than 60 days prior to each sinking fund payment date for any series of Debt Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Debt Securities of such series are denominated (except as provided 36 pursuant to Section 2.03) and the portion thereof, if any, which is to be satisfied by delivering and crediting Debt Securities of that series pursuant to this Section 3.06 (which Debt Securities, if not previously redeemed, will accompany such certificate) and whether the Company intends to exercise its right to make any permitted optional sinking fund payment with respect to such series. Such certificate shall also state that no Event of Default has occurred and is continuing with respect to such series. Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company to deliver such certificate (or to deliver the Debt Securities and Coupons, if any, specified in this paragraph) shall not constitute a Default, but such failure shall require that the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Debt Securities subject to a mandatory sinking fund payment without the option to deliver or credit Debt Securities as provided in this Section 3.06 and without the right to make any optional sinking fund payment, if any, with respect to such series. Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000 (or a lesser sum if the Company shall so request) with respect to the Debt Securities of any particular series shall be applied by the Trustee on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such Debt Securities at the redemption price specified by the terms of such Debt Securities for operation of the sinking fund together with any accrued interest to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Debt Securities shall be added to the next cash sinking fund payment received by the Trustee for such series and, together with such payment, shall be applied in accordance with the provisions of this Section 3.06. Any and all sinking fund moneys with respect to the Debt Securities of any particular series held by the Trustee on the last sinking fund payment date with respect to Debt Securities of such series and not held for the payment or redemption of particular Debt Securities shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Debt Securities of that series at its Stated Maturity. The Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment date in the manner specified in the last paragraph of Section 3.03 and the Company shall cause notice of the redemption thereof to be given in the manner provided in Section 3.03 except that the notice of redemption shall also state that the Debt Securities are being redeemed by operation of the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in Section 3.04. 37 At least one business day before each sinking fund payment date, the Company shall pay to the Trustee (or, if the Company is acting as its own paying agent, the Company shall segregate and hold in trust) in cash a sum in the Currency in which the Debt Securities of such series are denominated (except as provided pursuant to Section 2.03) equal to any interest accrued to the date fixed for redemption of Debt Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 3.06. The Trustee shall not redeem any Debt Securities of a series with sinking fund moneys or mail any notice of redemption of such Debt Securities by operation of the sinking fund for such series during the continuance of a Default in payment of interest on such Debt Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to such Debt Securities, except that if the notice of redemption of any such Debt Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance with the terms of this Article III. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such Default or Event of Default, be held as security for the payment of such Debt Securities; provided, however, that in case such Event of Default or Default shall have been - -------- ------- cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Debt Securities on which such moneys may be applied pursuant to the provisions of this Section 3.06. ARTICLE IV Covenants of the Company ------------------------ SECTION 4.01. Payment of Principal of, and Premium, If Any, and ------------------------------------------------- Interest on, Debt Securities. The Company, for the benefit of each series of - ----------------------------- Debt Securities, will duly and punctually pay or cause to be paid the principal of, and premium, if any, and interest on, each of the Debt Securities and pay any Coupons at the Place of Payment, at the respective times and in the manner provided herein, in the Debt Securities and in the Coupons. Each installment of interest on the Registered Securities may, at the Company's option, be paid by mailing checks for such interest payable to the Person entitled thereto pursuant to Section 2.07(a) to the address of such Person as it appears on the Debt Security Register, or if provided by the terms of the Registered Securities pursuant to Section 2.03 and in accordance with arrangements satisfactory to the Trustee, at the option of the Registered Holder by wire transfer to an account designated by the Registered Holder. Any interest due on Coupon Securities on or before the Stated Maturity of the related Debt Security, other than additional interest, if any, payable as provided in Section 4.06 in respect of principal of, or premium, if any, on such 38 a Debt Security, shall be payable only upon presentation and surrender of the several Coupons for such interest installments as are evidenced thereby as they severally mature. Payments of principal of or premium, if any, on any Debt Security shall be payable only upon presentation and surrender of the Debt Security. Principal, premium and interest of Debt Securities of any series shall be considered paid on the date due if on such date the Trustee or any paying agent holds in accordance with this Indenture money sufficient to pay in the Currency in which the Debt Securities of such series are denominated with respect to Bearer Securities or in Dollars with respect to Registered Securities (in each case, except as otherwise provided pursuant to Section 2.03) all principal, premium and interest then due. The Company shall pay interest on overdue principal at the rate specified therefor in the Debt Securities and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. SECTION 4.02. Maintenance of Offices or Agencies for Registration of ------------------------------------------------------ Transfer, Exchange and Payment of Debt Securities. The Company will maintain in - -------------------------------------------------- each Place of Payment for any series of Debt Securities and Coupons, if any, an office or agency where Debt Securities and Coupons of such series (but, except as otherwise provided in Section 2.12, unless such Place of Payment is located outside the United States, not Bearer Securities or Coupons) may be presented or surrendered for payment, where Debt Securities of such series may be surrendered for transfer or exchange and where notices and demands to or upon the Company in respect of the Debt Securities and Coupons of such series and this Indenture may be served. So long as any Bearer Securities of any series remain outstanding, the Company will maintain for such purposes one or more offices or agencies outside the United States in such city or cities specified pursuant to Section 2.03 and, if any Bearer Securities are listed on a securities exchange that requires an office or agency for the payment of principal of, and premium, if any, or interest on, such Bearer Securities in a location other than the location of an office or agency specified pursuant to Section 2.03, the Company will maintain for such purposes an office or agency in such location so long as any Bearer Securities are listed on such securities exchange and such exchange so requires. 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 (in the case of Registered Securities) and at the principal London office of the Trustee (in the case of Bearer Securities), and the Company hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands. The Company may also from time to time designate different or additional offices or agencies to be maintained for such purposes (in or outside of such Place of Payment), and may from time to time rescind any such designation; provided, however, -------- ------- 39 that no such designation or rescission shall in any manner relieve the Company of its obligations described in the preceding paragraph. The Company will give prompt written notice to the Trustee of any such additional designation or rescission of designation and any change in the location of any such different or additional office or agency. SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee. ------------------------------------------------------ The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder with respect to each series of Debt Securities. SECTION 4.04. Duties of Paying Agents, etc.. (a) The Company shall ------------------------------ cause each paying agent, if any, other than the Trustee, to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04, (i) that it will hold all sums held by it as such agent for the payment of the principal of, and premium, if any, or interest on, the Debt Securities of any series and the payment of any related Coupons (whether such sums have been paid to it by the Company or by any other obligor on the Debt Securities or Coupons of such series) in trust for the benefit of the Holders of the Debt Securities and Coupons of such series; (ii) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Debt Securities or Coupons of such series) to make any payment of the principal of, and premium, if any, or interest on, the Debt Securities of such series or any payment on any related Coupons when the same shall be due and payable; and (iii) that it will at any time during the continuance of an Event of Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held by it as such agent. (b) If the Company shall act as its own paying agent, it will, on or before each due date of the principal of, and premium, if any, or interest on, the Debt Securities and Coupons, if any, of any series, set aside, segregate and hold in trust for the benefit of the Holders of the Debt Securities and Coupons of such series a sum sufficient to pay such principal, premium, if any, or interest so becoming due. The Company will promptly notify the Trustee of any failure by the Company to take such action or the failure by any other obligor on such Debt Securities or Coupons to make any payment of the principal of, and premium, if any, or interest on, such Debt Securities or Coupons when the same shall be due and payable. (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of 40 this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent, as required by this Section 4.04, 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. (d) Whenever the Company shall have one or more paying agents with respect to any series of Debt Securities and Coupons, it will, prior to each due date of the principal of, and premium, if any, or interest on, any Debt Securities of such series, deposit with any such paying agent a sum sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless any such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. (e) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04 is subject to the provisions of Section 11.05. (f) The Company initially appoints the Trustee as the paying agent hereunder. SECTION 4.05. Statement by Officers as to Default. The Company will ------------------------------------ deliver to the Trustee, on or before a date not more than four months after the end of each fiscal year of the Company (currently on a calendar year basis) ending after the date hereof, an Officers' Certificate stating, as to each officer signing such certificate, that (i) in the course of his performance of his duties as an officer of the Company he would normally have knowledge of any Default, (ii) whether or not to the best of his knowledge any Default occurred during such year and (iii) if to the best of his knowledge the Company is in Default, specifying all such Defaults and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with Section 314(a)(4) of the Trust Indenture Act. SECTION 4.06. Payment of Additional Interest. Unless otherwise ------------------------------- provided pursuant to Section 2.03, the provisions of this Section 4.06 shall be applicable to Bearer Securities of any series. The Company will, subject to the exceptions and limitations set forth below, pay as additional interest to the Holder of any Bearer Security or Coupon that is a United States Alien such amounts as may be necessary so that every net payment on such Bearer Security or Coupon, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge by the United States (or any political subdivision or taxing authority thereof or therein) imposed upon or as a result of such payment, will not be less than the amount provided in such Bearer Security or Coupon to be then due and payable. However, the Company will not be required to make any such payment of additional interest for or on account of: 41 (a) any tax, assessment or other governmental charge that would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor or beneficiary of, or a Person holding a power over, such Holder, if such Holder is an estate or a trust, or a member or shareholder of such Holder, if such Holder is a partnership or corporation) and the United States, including such Holder (or such fiduciary, settlor, beneficiary, Person holding a power, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in trade or business or present therein or having or having had a permanent establishment therein or (ii) such Holder's past or present status as a personal holding company, foreign personal holding company or private foundation or other tax-exempt organization with respect to the United States or as a corporation that accumulates earnings to avoid United States Federal income tax; (b) any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment or other governmental charge; (c) any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of a Bearer Security or Coupon for payment more than 15 days after the date on which such payment became due and payable or on which payment thereof was duly provided for, whichever occurs later; (d) any tax, assessment or other governmental charge that is payable otherwise than by deduction or withholding from a payment on a Bearer Security or Coupon; (e) any tax, assessment or other governmental charge which is required to be deducted or withheld from a payment on a Bearer Security or Coupon because such payment is made by or through a U.S. middleman (as defined in Proposed Treasury Regulation Section 1.6049-5(d)(1)) that, as a custodian or nominee of the Holder, collects the payment for, or on behalf of, the Holder; (f) any tax, assessment or other governmental charge that would not have been imposed but for a failure to comply with applicable certification, documentation, information or other reporting requirement concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of a Bearer Security or Coupon if, without regard to any tax treaty, such compliance is required by statute or regulation of the United States as a precondition to relief or exemption from such tax, assessment or other governmental charge; (g) any tax, assessment or other governmental charge imposed on a Holder that actually or constructively owns ten percent or more of the combined voting power of all classes of stock of the Company or that is a controlled foreign corporation related to the Company through stock ownership; or 42 (h) any tax, assessment, or other governmental charge imposed on a Holder that is a foreign bank pursuant to a determination that amounts paid or accrued with respect to a Bearer Security or Coupon constitute interest received by the bank on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of the bank's trade or business (within the meaning of Section 881(c)(3)(A) of the Code); nor shall additional interest be paid with respect to a payment on a Bearer Security or Coupon to a Holder that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to the additional interest had such beneficiary, settlor, member or beneficial owner been the Holder of such Bearer Security or Coupon. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of, or premium, if any, or interest on, any Debt Security or payment with respect to any Coupon of any series, such mention shall be deemed to include mention of the payment of additional interest provided for in the terms of such Debt Securities and this Section 4.06 to the extent that, in such context, additional interest is, was or would be payable in respect thereof pursuant to the provisions of this Section 4.06 and express mention of the payment of additional interest (if applicable) in any provisions hereof shall not be construed as excluding additional interest in those provisions hereof where such express mention is not made. If the payment of additional interest becomes required in respect of the Debt Securities of a series, at least ten days prior to the first interest payment date with respect to which such additional interest will be payable (or if the Debt Securities of that series will not bear interest prior to its Stated Maturity, the first day on which a payment of principal, and premium, if any, is made and on which such additional interest will be payable), and at least ten days prior to each date of payment of principal, and premium, if any, or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company will furnish the Trustee and each paying agent with an Officers' Certificate that shall specify by country the amount, if any, required to be withheld on such payments to Holders of Debt Securities or Coupons that are United States Aliens, and the Company will pay to the Trustee or such paying agent the additional interest, if any, required by the terms of such Debt Securities and this Section 4.06. The Company covenants to indemnify the Trustee and any paying agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section 4.06. SECTION 4.07. Limitation on Liens. The Company will not itself, and -------------------- will not permit any Restricted Subsidiary to, incur, issue, assume or guarantee any notes, 43 bonds, debentures or other similar evidences of indebtedness for money borrowed (notes, bonds, debentures or other similar evidences of indebtedness for money borrowed being hereinafter called "Debt") secured by pledge of, or mortgage or other lien on, any Real Property of the Company or any Restricted Subsidiary, or any shares of stock or Debt of any Restricted Subsidiary (pledges, mortgages and other liens being hereinafter called "Mortgage" or "Mortgages"), without effectively providing that the Debt Securities (together with, if the Company shall so determine, any other Debt of the Company or that Restricted Subsidiary then existing or thereafter created that is not subordinate to such Securities) shall be secured equally and ratably with (or prior to) such secured Debt (for the purpose of providing such equal and ratable security the principal amount of such Debt Securities shall mean and shall not be less than that principal amount which could be declared to be due and payable pursuant to Section 6.01 on the date of the making of such effective provision and the extent of such equal and ratable security shall be adjusted, to the extent permitted by law, as and when that principal amount changes over time pursuant to Section 6.01 and any other provision hereof), so long as such secured Debt shall be so secured, unless, after giving effect thereto, the aggregate amount of all such secured Debt plus all Attributable Debt of the Company and its Restricted Subsidiaries in respect of Sale and Leaseback Transactions (other than such Sale and Leaseback Transactions the proceeds of which are applied to reduce indebtedness under clause (2) of Section 4.08) would not exceed 10% of Consolidated Net Tangible Assets; provided, however, that this Section shall not apply to, and there shall be excluded from secured Debt in any computation under this Section, Debt secured by: (1) Mortgages existing as of the date of this Indenture; (2) Mortgages on property of, or on any shares of stock (or other interest in) or Debt of, any corporation, association, partnership or other entity existing at the time such entity becomes a Restricted Subsidiary or an obligor under this Indenture; (3) Mortgages in favor of the Company or any Restricted Subsidiary by a Restricted Subsidiary; (4) Mortgages (including the assignment of moneys due or to become due thereon) in favor of the United States of America or any state thereof, or any agency, department or other instrumentality thereof, to secure progress, advance or other payments pursuant to any contract or provision of any statute; (5) Mortgages on property, shares of stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price, construction cost, or development cost thereof or to secure any Debt incurred prior to, at the time of, or within 360 days after, the acquisition of such property or shares or Debt or the completion of any such construction or development for the purpose of financing all 44 or any part of the purchase price or construction cost or development cost thereof; and (6) any extension, renewal or refinancing (or successive extensions, renewals or refinancings), as a whole or in part, of any Mortgage referred to in the foregoing clauses (1) to (5), inclusive; provided, however, that (i) such extension, renewal or refinancing Mortgage shall be limited to all or a part of the same property, shares of stock or Debt that secured the Mortgage extended, renewed or refinanced (plus improvements on such property) and (ii) the principal amount of Debt secured by such Mortgage at such time is not increased in an amount exceeding 105% thereof. SECTION 4.08. Limitation on Sales and Leasebacks. The Company will ----------------------------------- not itself, and it will not permit any Restricted Subsidiary to, enter into any arrangement with any bank, insurance company or other lender or investor (not including the Company or any Restricted Subsidiary) or to which any such lender or investor is a party, providing for the leasing by the Company or any such Restricted Subsidiary for a period, including renewals, in excess of three years of any Real Property that has been or is to be sold or transferred, more than 360 days after the completion of construction and commencement of full operation thereof, by the Company or any such Restricted Subsidiary to such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor on the security of such Real Property (herein referred to as a "Sale and Leaseback Transaction") unless either: (1) the Company or such Restricted Subsidiary could create Debt secured by a Mortgage pursuant to Section 4.07 on the Real Property to be leased back in an amount equal to the Attributable Debt with respect to such Sale and Leaseback Transaction without equally and ratably securing the Securities, or (2) the Company or such Restricted Subsidiary within 120 days after the sale or transfer shall have been made by the Company or by any such Restricted Subsidiary, applies an amount equal to the net proceeds of the sale of the Real Property sold and leased back pursuant to such arrangement to the retirement of Debt Securities or Funded Debt of the Company or any of its Restricted Subsidiaries. SECTION 4.09. Waiver of Certain Covenants. The Company may omit in ---------------------------- any particular instance to comply with any term, provision or condition set forth in Sections 4.07 and 4.08 with respect to the Debt Securities of any series if before or after the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Debt Securities of such series shall 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 45 Company in respect of any such term, provision or condition shall remain in full force and effect. SECTION 4.10. Existence. Other than in connection with a transaction ---------- permitted pursuant to Article X, 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 an officer of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the Company's business. SECTION 4.11. Further Instruments and Acts. The Company will, upon ----------------------------- request of the Trustee, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectually the purposes of this Indenture. ARTICLE V Holders' Lists and Reports -------------------------- by the Company and the Trustee ------------------------------ SECTION 5.01. Company to Furnish Trustee Information as to Names and ------------------------------------------------------ Addresses of Holders; Preservation of Information. The Company covenants and - -------------------------------------------------- agrees that it will furnish or cause to be furnished to the Trustee with respect to the Registered Securities of each series: (a) not more than 15 days after each record date with respect to the payment of interest, if any, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Registered Holders as of such record date, and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and contents as of a date not more than 15 days prior to the time such list is furnished; provided, however, that so long as the Trustee shall be the Registrar, such - -------- ------- lists shall not be required to be furnished. The Company shall also be required to furnish to the Trustee at all such times set forth above all information in the possession or control of the Company or any of its paying agents other than the Trustee as to the names and addresses of the Bearer Holders of all series; provided, however, that the -------- ------- Company shall have no obligation to investigate any matter relating to any Bearer Holders. 46 The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders (1) contained in the most recent list furnished to it as provided in this Section 5.01 or (2) received by it in the capacity of paying agent or Registrar (if so acting) hereunder. The Trustee may destroy any list furnished to it as provided in this Section 5.01 upon receipt of a new list so furnished. SECTION 5.02. Communications to Holders. Holders may communicate -------------------------- pursuant to Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or the Debt Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust Indenture Act. SECTION 5.03. Reports by Company. (a) The Company covenants and ------------------- agrees, and any obligor hereunder shall covenant and agree, to file with the Trustee and the Holders (in the manner and to the extent provided in Section 5.04), within 15 days after the Company or such obligor, as the case may be, is required to file the same with the Securities and Exchange Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as said Commission may from time to time by rules and regulations prescribe) which the Company or such obligor, as the case may be, may be required to file with said Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company or such obligor, as the case may be, is not required to file information, documents or reports pursuant to either of such Sections, then to file with the Trustee, the Holders (in the manner and to the extent provided in Section 5.04) and said Commission, in accordance with rules and regulations prescribed from time to time by said Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. (b) The Company covenants and agrees, and any obligor hereunder shall covenant and agree, to file with the Trustee, the Holders (in the manner and to the extent provided in Section 5.04) and the Securities and Exchange Commission, in accordance with the rules and regulations prescribed from time to time by said Commission, such additional information, documents, and reports with respect to compliance by the Company or such obligor, as the case may be, with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. SECTION 5.04. Reports by Trustee. As promptly as practicable after ------------------- each January 1 beginning with the January 1 following the date of this Indenture, and in 47 any event prior to March 1 in each year, the Trustee shall mail to each Holder a brief report dated as of December 31 of the prior year if and to the extent required by Section 313(a) of the Trust Indenture Act. The Trustee also shall comply with Section 313(b) of the Trust Indenture Act. Reports pursuant to this Section 5.04 shall be transmitted by mail: (1) to all Registered Holders, as the names and addresses of such Holders appear in the Debt Security Register; (2) to such Bearer Holders of any series as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such series for that purpose; and (3) except in the cases of reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a Debt Security of any series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 5.02. A copy of each report at the time of its mailing to Holders shall be filed with the Securities and Exchange Commission and each stock exchange (if any) on which the Debt Securities of any series are listed. The Company agrees to notify promptly the Trustee whenever the Debt Securities of any series become listed on any stock exchange and of any delisting thereof. SECTION 5.05. Record Dates for Action by Holders. If the Company ----------------------------------- shall solicit from the Holders of Debt Securities of any series any action (including the making of any demand or request, the giving of any direction, notice, consent or waiver or the taking of any other action), the Company may, at its option, by resolution of the Board of Directors, fix in advance a record date for the determination of Holders of Debt Securities entitled to take such action, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company's discretion. If such a record date is fixed, such action may be sought or given before or after the record date, but only the Holders of Debt Securities of record at the close of business on such record date shall be deemed to be Holders of Debt Securities for the purpose of determining whether Holders of the requisite proportion of Debt Securities of such series Outstanding have authorized or agreed or consented to such action, and for that purpose the Debt Securities of such series Outstanding shall be computed as of such record date. 48 ARTICLE VI Remedies of the Trustee and Holders in Event of Default ------------------------------------------------------- SECTION 6.01. Events of Default. If any one or more of the following ------------------ shall have occurred and be continuing with respect to Debt Securities of any series (each of the following, an "Event of Default"): (a) default in the payment of any installment of interest upon any Debt Securities of that series or any payment with respect to the related Coupons, if any, as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of or premium, if any, on any Debt Securities of that series as and when the same shall become due and payable, whether at maturity, upon redemption, by declaration, upon required repurchase or otherwise; or (c) default in the payment of any sinking fund payment with respect to any Debt Securities of that series as and when the same shall become due and payable; or (d) default in the performance, or breach, of any covenant of the Company in this Indenture, including failure on the part of the Company to comply with Article X, (other than a covenant or 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 a series of Debt Securities other than that series), and continuance of such default or breach for a period of 90 days after the date on which written notice specifying such failure, stating that such notice is a "notice of default" hereunder, and requiring the Company to remedy the same shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Debt Securities of that series at the time Outstanding; or (e) if an event of default as defined in any mortgage, indenture, bonds, debentures, notes or instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness of the Company for money borrowed, whether such indebtedness now exists or shall hereafter be created, shall happen and shall result in more than $50,000,000 (or its equivalent in any other currency) in principal amount of such indebtedness becoming or being declared due and payable before the date on which it would otherwise become due and payable, and that acceleration shall not be rescinded or annulled, or that indebtedness shall not have been discharged, within a period of 10 days after there has been given, by 49 registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Debt Securities of that series at the time outstanding a written notice specifying the event of default and requiring the Company to cause the acceleration to be rescinded or annulled or to cause that indebtedness to be discharged and stating that such notice is a "notice of default" hereunder; or (f) the Company shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other Federal or State bankruptcy, insolvency or similar law, (ii) consent to the institution of, or fail to controvert within the time and in the manner prescribed by law, any such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Company or for a substantial part of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) admit in writing its inability or fail generally to pay its debts as they become due, (vii) take corporate action for the purpose of effecting any of the foregoing, or (viii) take any comparable action under any foreign laws relating to insolvency; or (g) the entry of an order or decree by a court having competent jurisdiction in the premises for (i) relief in respect of the Company or a substantial part of any of its property under Title 11 of the United States Code or any other Federal or State bankruptcy, insolvency or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Company or for a substantial part of any of its property or (iii) the winding-up or liquidation of the Company, and such order or decree shall continue unstayed and in effect for 60 consecutive days; or any similar relief is granted under any foreign laws and the order or decree stays in effect for 60 consecutive days; or (h) any other Event of Default provided with respect to Debt Securities of that series; then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e) or (h) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt 50 Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding. If an Event of Default described in clause (f) or (g) occurs, then and in each and every such case, unless the principal of and interest on all the Debt Securities shall have become due and payable, the principal of (or, if any Debt Securities are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms thereto) and interest on all the Debt Securities then Outstanding hereunder shall ipso facto become and be immediately due and payable without any ---- ----- declaration or other act on the part of the Trustee or any Holders, anything in this Indenture or in the Debt Securities contained to the contrary notwithstanding. In case the Trustee or any Holder shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee or such Holder, then and in every such case the parties hereto shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the parties hereto shall continue as though no such proceeding had been taken. The Holders of a majority in principal amount of the Debt Securities of a particular series by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree already rendered and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of acceleration. Upon any such rescission, the parties hereto shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the parties hereto shall continue as though no such proceeding had been taken. The foregoing Events of Default shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is 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. The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers' Certificate of any event which with the giving of notice and the lapse of time would become an Event of Default under clause (d), (e) or (h) indicating its status and what action the Company is taking or proposes to take with respect thereto. SECTION 6.02. Collection of Indebtedness by Trustee, etc.. If an -------------------------------------------- Event of Default occurs and is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid or enforce the performance of any provision of the Debt Securities of the affected series or this 51 Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon the Debt Securities, and the Coupons, if any, appertaining thereto, of such series (and collect in the manner provided by law out of the property of the Company or any other obligor wherever situated upon the Debt Securities and Coupons of such series) the moneys adjudged or decreed to be payable. In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor upon the Debt Securities and Coupons, if any, of any series under Title 11 of the United States Code or any other Federal or State bankruptcy, insolvency or similar law, or in case a receiver, trustee or other similar official shall have been appointed for its property, or in case of any other similar judicial proceedings relative to the Company or any other obligor upon the Debt Securities of any series, its creditors or its property, the Trustee, irrespective of whether the principal of Debt Securities and Coupons, if any, of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal, premium, if any, and interest (or, if the Debt Securities of such series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Debt Securities and Coupons of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or bad faith) and of the Holders thereof allowed in any such judicial proceedings relative to the Company, or any other obligor upon the Debt Securities and Coupons of such series, its creditors or its property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of such Holders and of the Trustee on their behalf, and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of such Holders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to such Holders, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or bad faith. All rights of action and of asserting claims under this Indenture, or under any of the Debt Securities and the Coupons, if any, appertaining thereto, of any series, may be enforced by the Trustee without the possession of any such Debt Securities or Coupons, or the production thereof in any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name 52 as trustee of an express trust, and any recovery of judgment (except for any amounts payable to the Trustee pursuant to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt Securities or Coupons in respect of which such action was taken. In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys ------------------------------------------- collected by the Trustee pursuant to Section 6.02 with respect to Debt Securities and Coupons, if any, of any series shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several Debt Securities or Coupons of such series in respect of which moneys have been collected, and the notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid: FIRST: To the payment of all money due the Trustee pursuant to Section 7.06; SECOND: In case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall not have become due, to the payment of interest on the Debt Securities or Coupons of such series in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities) borne by the Debt Securities or Coupons of such series, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference; THIRD: In case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Debt Securities or Coupons of such series for principal and premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities) borne by the Debt Securities or Coupons of such series; and, in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Debt Securities and Coupons of such series, then to the payment of such principal and premium, if any, and interest, 53 without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Debt Security or Coupon of such series over any Debt Security or Coupon of such series, ratably to the aggregate of such principal and premium, if any, and interest; and FOURTH: The remainder, if any, shall be paid to the Company, its successors or assigns, or to whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.03. At least 15 days before such record date, the Company shall mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid. SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt ------------------------------- Security or Coupon of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default with respect to Debt Securities of that same series and of the continuance thereof and unless the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt Securities of that series shall have made written request upon the Trustee to institute such action or proceedings in respect of such Event of Default in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the Holder of every Debt Security or Coupon with every other Holder and the Trustee, that no one or more Holders shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any Holders, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all such Holders. For the protection and enforcement of the provisions of this Section 6.04, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity. Notwithstanding any other provision in this Indenture, however, the right of any Holder of any Debt Security or Coupon to receive payment of the principal of, and premium, if any, and (subject to Section 2.12) interest on, such Debt Security or Coupon, on or after the respective due dates expressed in such Debt Security, and to institute suit 54 for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of ----------------------------------------------------- Rights Not a Waiver of Default. All powers and remedies given by this Article - ------------------------------- VI to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any Default occurring and continuing as aforesaid, shall impair any such right or power, or shall be construed to be a waiver of any such Default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders. SECTION 6.06. Rights of Holders of Majority in Principal Amount of ---------------------------------------------------- Debt Securities to Direct Trustee and to Waive Default. The Holders of a - ------------------------------------------------------- majority in aggregate principal amount of the Debt Securities of any series at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Debt Securities of such series; provided, however, that such direction shall not be -------- ------- otherwise than in accordance with law and the provisions of this Indenture, and that subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel shall determine that the action so directed may not lawfully be taken, or if the Trustee shall by a responsible officer or officers determine that the action so directed would involve it in personal liability or would be unjustly prejudicial to Holders of Debt Securities of such series not taking part in such direction; and provided, further, however, that nothing in this Indenture contained shall -------- ------- ------- impair the right of the Trustee to take any action deemed proper by the Trustee and which is not inconsistent with such direction by such Holders. Prior to the acceleration of the maturity of the Debt Securities of any series, as provided in Section 6.01, the Holders of a majority in aggregate principal amount of the Debt Securities of that series at the time Outstanding may on behalf of the Holders of all the Debt Securities and any related Coupons of that series waive any past Default or Event of Default and its consequences for that series specified in the terms thereof as contemplated by Section 2.03, except (i) a Default in the payment of the principal of, and premium, if any, or interest on, any of the Debt Securities or in the payment of any related Coupon and (ii) a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder affected thereby. In case of any such waiver, such Default shall cease to exist, any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture, and the Company, the Trustee and the Holders of the Debt Securities of that series shall be restored to their former positions 55 and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May ------------------------------------------------------- Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90 - ---------------------------------------------- days after the occurrence of a Default known to it with respect to a series of Debt Securities or Coupons, if any, give to the Holders thereof, in the manner provided in Section 12.03, notice of all Defaults with respect to such series known to the Trustee, unless such Defaults shall have been cured or waived before the giving of such notice; provided, that, except in the case of Default -------- in the payment of the principal of, or premium, if any, or interest on, any of the Debt Securities or Coupons of such series or in the making of any sinking fund payment with respect to the Debt Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a committee of directors or responsible officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders thereof and provided further that, in -------- ------- the case of any Default as described in Section 6.01(d) with respect to Debt Securities of such series, no such notice to Holders of Debt securities of such series shall be given until the 90th day after the date of the notice specified in such Section shall have been given. Except with respect to a Default or an Event of Default pursuant to Section 6.01(a), (b) or (c), the Trustee will not be charged with knowledge of any Default or Event of Default unless written notice thereof shall have been given to a responsible officer by the Company or any Holder and such notice references the Debt Securities generally, the Company or this Indenture. SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain ----------------------------------------------------- Suits under the Indenture or Against the Trustee. All parties to this Indenture - ------------------------------------------------- agree, and each Holder of any Debt Security or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit in the manner and to the extent provided in the Trust Indenture Act, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.08 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than ten percent in principal amount of the Outstanding Debt Securities of that series or to any suit instituted by any Holder for the enforcement of the payment of the principal of, or premium, if any, or interest on, any Debt Security or Coupon on or after the due date for such payment expressed in such Debt Security or Coupon. 56 ARTICLE VII Concerning the Trustee ---------------------- SECTION 7.01. Certain Duties and Responsibilities. The Trustee, ------------------------------------ prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (a) this subsection shall not be construed to limit the effect of the first paragraph of this Section 7.01; (b) prior to the occurrence of an Event of Default with respect to the Debt Securities of a series and after the curing or waiving of all Events of Default with respect to such series which may have occurred: (1) the duties and obligations of the Trustee with respect to Debt Securities and Coupons, if any, of any series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations with respect to such series as are specifically set forth in this Indenture, and no implied covenants or obligations with respect to such series shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; 57 (c) the Trustee shall not be liable for an error of judgment made in good faith by a responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (d) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to Debt Securities of any series in good faith in accordance with the direction of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities of that series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to Debt Securities of such series. None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be 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 7.02. Certain Rights of Trustee. Except as otherwise -------------------------- provided in Section 7.01: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Order (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; (c) whenever in the administration of the 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 provided) may, in the absence of bad faith on its part, rely on an Officers' Certificate; 58 (d) the Trustee may consult with counsel or require an Opinion of Counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders of Debt Securities or Coupons of any series pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; (f) the Trustee shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (g) prior to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, 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, approval, bond, debenture, note, coupon, other evidence of indebtedness, or other paper or document, unless requested in writing to do so by the Holders of a majority in aggregate principal amount of the then Outstanding Debt Securities of a series affected by such matter; provided, however, that if the payment -------- ------- within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is not, in the opinion of the Trustee, reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such investigation shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; (h) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care hereunder; (i) if any property other than cash shall at any time be subject to a Lien in favor of the Holders, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be entitled to make advances for the 59 purpose of preserving such property or of discharging tax Liens or other prior Liens or encumbrances thereon; and (j) for all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default (other than under Section 6.01(a), (b) or (c)) unless written notice of such Default or Event of Default is received by a responsible officer from the Company or a Holder and such notice references the Debt Securities generally, the Company or this Indenture. SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt ------------------------------------------------------- Securities. The recitals contained herein, in the Debt Securities (except the - ----------- Trustee's certificate of authentication) and in any Coupons shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Debt Securities or Coupons, if any, of any series or any prospectus related to the Debt Securities of any series. The Trustee shall not be accountable for the use or application by the Company of any of the Debt Securities or of the proceeds thereof. SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt ----------------------------------------------- Securities. The Trustee or any paying agent or Registrar, in its individual or - ----------- any other capacity, may become the owner or pledgee of Debt Securities or Coupons and subject to the provisions of the Trust Indenture Act relating to conflicts of interest and preferential claims may otherwise deal with the Company with the same rights it would have if it were not Trustee, paying agent or Registrar. SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. ----------------------------------------------- Subject to the provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any moneys received by it hereunder. So long as no Event of Default shall have and be continuing, all interest allowed on any such moneys shall be paid from time to time to the Company upon a Company Order. SECTION 7.06. Compensation and Reimbursement. The Company covenants ------------------------------- and agrees to pay in Dollars to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel and of all Persons not 60 regularly in its employ and including all costs, expenses and losses associated with the payment of principal of, premium, if any, and interest on any Debt Securities denominated in a Foreign Currency) except any such expense, disbursement or advances as may arise from its negligence or bad faith. The Company also covenants to indemnify in Dollars the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence, willful misconduct or bad faith on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities and Coupons. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(f) or (g) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency, reorganization or other similar law. SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate ---------------------------------------------------- Where No Other Evidence Specifically Prescribed. Except as otherwise provided - ------------------------------------------------ in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof. SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company ----------------------------------------- may, but need not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving notice to the Company. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove the Trustee if: (1) the Trustee fails to comply with Section 7.10; 61 (2) the Trustee is adjudged bankrupt or insolvent; (3) a receiver or other public officer takes charge of the Trustee or its property; or (4) the Trustee otherwise becomes incapable of acting. If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee with respect to the affected series of Debt Securities. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08. If no successor Trustee with respect to the Debt Securities of any series shall have been so appointed by the Company or the Holders and accepted in the manner required by this Section 7.08, any Holder who has been a bona fide Holder of a Debt 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 Debt Securities of such series. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.06. The Company shall give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each appointment of a successor Trustee with respect to the Debt Securities of any series to all Holders of Debt Securities of such series in the manner provided in Section 12.03. Each notice shall include the name of the successor Trustee with respect to the Debt Securities of such series and the address of the corporate trust office of such successor Trustee. If a successor Trustee does not take office within 60 days after the retiring Trustee gives notice of resignation or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such series. 62 If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series. Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.06 shall continue for the benefit of the retiring Trustee. In the case of the appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more (but not all) series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that 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 separate, retiring or successor 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. SECTION 7.09. Successor Trustee by Merger. If the Trustee ---------------------------- consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or banking association without any further act shall be the successor Trustee. In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Debt Securities so authenticated; and in case at that time any of the Debt Securities shall not have been authenticated, any successor to the Trustee may authenticate such Debt Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Debt Securities or in this Indenture provided that the certificate of the Trustee shall have. SECTION 7.10. Eligibility; Disqualification. The Trustee shall at ------------------------------ all times satisfy the requirements of Section 310(a) of the Trust Indenture Act. The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most 63 recent published annual report of condition. No obligor upon the Debt Securities or Coupons, if any, of a particular series or Person directly or indirectly controlling, controlled by or under common control with such obligor shall serve as Trustee upon the Debt Securities and Coupons of such series. The Trustee shall comply with Section 310(b) of the Trust Indenture Act; provided, however, --------- -------- that there shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act this Indenture or any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are met. SECTION 7.11. Preferential Collection of Claims Against Company. -------------------------------------------------- The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein. SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to ------------------------- comply with all U.S. Federal income tax information reporting and withholding requirements applicable to it with respect to payments of premium (if any) and interest on the Debt Securities, whether acting as Trustee, Registrar, paying agent or otherwise with respect to the Debt Securities. ARTICLE VIII Concerning the Holders ---------------------- SECTION 8.01. Evidence of Action by Holders. Whenever in this ------------------------------ Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Debt Securities of any or all series may take action (including the making of any demand or request, the giving of any direction, notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in Person or by agent or proxy appointed in writing, (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Section 5.02 or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. SECTION 8.02. Proof of Execution of Instruments and of Holding of --------------------------------------------------- Debt Securities. Subject to the provisions of Sections 7.01, 7.02 and 12.11, - ---------------- proof of the execution of any instrument by a Holder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. 64 The ownership of Registered Securities of any series shall be proved by the Debt Security Register or by a certificate of the Registrar for such series. The ownership of Bearer Securities shall be proved by production of such Bearer Securities or by a certificate executed by any bank or trust company, which certificate shall be dated and shall state on the date thereof a Bearer Security bearing a specified identifying number or other mark was deposited with or exhibited to the Person executing such certificate by the Person named in such certificate, or by any other proof of possession reasonably satisfactory to the Trustee. The holding by the Person named in any such certificate of any Bearer Security specified therein shall be presumed to continue for a period of one year unless at the time of determination of such holding (1) another certificate bearing a later date issued in respect of the same Bearer Security shall be produced, (2) such Bearer Security shall be produced by some other Person, (3) such Bearer Security shall have been registered on the Debt Security Register, if, pursuant to Section 2.03, such Bearer Security can be so registered, or (4) such Bearer Security shall have been canceled or paid. The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall deem necessary. SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to ------------------------------------------- due presentment for registration of transfer of any Registered Security, the Company, the Trustee, any paying agent and any Registrar may deem and treat the Person in whose name any Registered Security shall be registered upon the books of the Company as the absolute owner of such Registered Security (whether or not such Registered Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and premium, if any, and (subject to Section 2.03) interest on such Registered Security and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any Registrar shall be affected by any notice to the contrary; and all such payments so made to any such Holder for the time being, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Registered Security. The Company, the Trustee and any paying agent may deem and treat the Holder of any Bearer Security or Coupon as the absolute owner of such Bearer Security or Coupon (whether or not such Debt Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and premium, if any, and (subject to Section 2.03) interest on such Bearer Security or Coupon and for all other purposes, and neither the Company nor the Trustee nor any paying agent shall be affected by any notice to the contrary; and all such payments so made to any such Holder for the time being, or upon 65 his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Bearer Security or Coupon. None of the Company, the Trustee, any paying agent or the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. SECTION 8.04. Instruments Executed by Holders Bind Future Holders. ---------------------------------------------------- At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debt Securities of any series specified in this Indenture in connection with such action and subject to the following paragraph, any Holder of a Debt Security which is shown by the evidence to be included in the Debt Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its corporate trust office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Holder. Except as aforesaid, any such action taken by the Holder of any Debt Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Debt Security and all past, present and future Holders of Coupons, if any, appertaining thereto, and of any Debt Security issued upon transfer thereof or in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon such Debt Security or such other Debt Securities or Coupons. Any action taken by the Holders of the percentage in aggregate principal amount of the Debt Securities of any series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities and Coupons of such series. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders of Registered Securities entitled to give their consent or take any other action required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders of Registered Securities at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders of Registered Securities after such record date. No such consent shall be valid or effective for more than 120 days after such record date unless the consent of the Holders of the percentage in aggregate principal amount of the Debt Securities of such series specified in this Indenture shall have been received within such 120-day period. 66 ARTICLE IX Supplemental Indentures ----------------------- SECTION 9.01. Purposes for Which Supplemental Indenture May Be ------------------------------------------------ Entered into Without Consent of Holders. The Company and the Trustee may from - ---------------------------------------- time to time and at any time, without the consent of Holders, enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof) for one or more of the following purposes: (a) to evidence the succession pursuant to Article X of another Person to the Company, or successive successions, and the assumption by the Successor Company (as defined in Section 10.01) of the covenants, agreements and obligations of the Company in this Indenture and in the Debt Securities; (b) to surrender any right or power herein conferred upon the Company, to add to the covenants of the Company such further covenants, restrictions, conditions or provisions for the protection of the Holders of all or any series of Debt Securities and the Coupons, if any, appertaining thereto (and if such covenants are to be for the benefit of less than all series of Debt Securities, stating that such covenants are expressly being included solely for the benefit of such series), and to make the occurrence, or the occurrence and continuance, of a Default in any of such additional covenants, restrictions, conditions or provisions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture; provided, that in respect of any such -------- additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after Default (which period may be shorter or longer than that allowed in the case of other Defaults) or may provide for an immediate enforcement upon such Default or may limit the right of the Holders of a majority in aggregate principal amount of any or all series of Debt Securities to waive such default; (c) to cure any ambiguity or to correct or supplement any provision contained herein, in any supplemental indenture or in any Debt Security of any series that may be defective or inconsistent with any other provision contained herein, in any supplemental indenture or in the Debt Securities of such series; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to make such other provisions in regard to matters or questions arising under this Indenture, provided that any such action shall not adversely affect the interests of any Holders of Debt Securities of any series; (d) to modify or amend this Indenture in such a manner as to permit the qualification of this Indenture or any Indenture supplemental hereto under the 67 Trust Indenture Act as then in effect, except that nothing herein contained shall permit or authorize the inclusion in any Indenture supplemental hereto of the provisions referred to in Section 316(a)(2) of the Trust Indenture Act; (e) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registerable as to principal, to change or eliminate any restrictions on the payment of principal of, or premium, if any, on, Registered Securities or of principal of, or premium, if any, or interest on, Bearer Securities or to permit Registered Securities to be exchanged for Bearer Securities; provided, that any such -------- action shall not adversely affect the interests of the Holders of Debt Securities or any Coupons of any series in any material respect or permit or facilitate the issuance of Debt Securities of any series in uncertificated form; (f) to comply with Article X; (g) to add guarantees with respect to the Debt Securities or to secure the Debt Securities; (h) to make any change that does not adversely affect the rights of any Holder; (i) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Debt Securities; provided, -------- however, that any such addition, change or elimination (i) shall neither ------- (A) apply to any Debt Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Debt Security with respect to such provision or (ii) shall become effective only when there is no such Debt Security Outstanding; (j) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt 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; and (k) to establish the form or terms of Debt Securities and Coupons, if any, of any series as permitted by Sections 2.01 and 2.03. The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. 68 Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Debt Securities or Coupons, if any, appertaining thereto at the time Outstanding, notwithstanding any of the provisions of Section 9.02. After an amendment under this Section 9.01 becomes effective, the Company shall mail to Holders of Debt Securities of each series affected thereby a notice briefly describing such amendment. The failure to give such notice to all such Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 9.01. SECTION 9.02. Modification of Indenture with Consent of Holders of ---------------------------------------------------- Debt Securities. Without notice to any Holder but with the consent (evidenced - ---------------- as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities of each series affected by such supplemental indenture, the Company, when authorized by a resolution of the Board of Directors, and the Trustee may from time to time and at any time enter into an Indenture or Indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of execution thereof) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Debt Securities of such series; provided, that no such -------- supplemental indenture, without the consent of the Holders of each Debt Security so affected, shall (i) reduce the percentage in principal amount of Debt Securities of any series whose Holders must consent to an amendment; (ii) reduce the rate of or extend the time for payment of interest on any Debt Security or Coupon or reduce the amount of any payment to be made with respect to any Coupon; (iii) reduce the principal of or change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Debt Security or reduce the amount of principal of any Original Issue Discount Security that would be due and payable upon declaration of acceleration of maturity; (iv) reduce the premium payable upon the redemption of any Debt Security or change the time at which any Debt Security may or shall be redeemed in accordance with Article III; (v) make any Debt Security payable in Currency other than that stated in the Debt Security; (vi) release any security that may have been granted in respect of the Debt Securities; (vii) make any change in Section 6.06 or the second sentence of this Section 9.02; (viii) change any obligation of the Company to pay additional interest pursuant to Section 4.06; (ix) limit the obligation of the Company to maintain a paying agency outside the United States for payment on Bearer Securities as provided in Section 4.02 or limit the obligation of the Company to redeem an Affected Security as provided in Section 3.02(b); (x) change any Place of Payment where any Debt Security or any premium or interest thereon is payable; (xi) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity of any Debt Security (or in the case of redemption, on or after the date fixed for redemption); or (xii) modify any of the provisions of this Section, Section 4.09 or Section 69 6.06, 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 Debt Security affected thereby, provided, -------- however, that this Section 9.02 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, Section 4.09, or the deletion of this proviso, in accordance with the requirements of Section 7.08 and 9.01(j). A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has been expressly included solely for the benefit of one or more particular series of Debt Securities and Coupons, if any, or which modifies the rights of the Holders of Debt Securities and Coupons 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 Debt Securities and Coupons, if any, of any other series. Upon the request of the Company, accompanied by a copy of a resolution of the Board of Directors authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon (subject to Section 7.01), an Officers' Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. After an amendment under this Section 9.02 becomes effective, the Company shall mail to Holders of Debt Securities of each series affected thereby a notice briefly describing such amendment. The failure to give such notice to all such Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 9.02. SECTION 9.03. Effect of Supplemental Indentures. Upon the execution ---------------------------------- of any supplemental indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. 70 SECTION 9.04. Debt Securities May Bear Notation of Changes by ----------------------------------------------- Supplemental Indentures. Debt Securities and Coupons, if any, of any series - ------------------------ authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article IX 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. New Debt Securities and Coupons of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange for the Debt Securities and Coupons of such series then Outstanding. Failure to make the appropriate notation or to issue a new Debt Security or Coupon of such series shall not affect the validity of such amendment. SECTION 9.05. Payment for Consent. Neither the Company nor any -------------------- Affiliate of the Company shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Debt Securities or Coupons, if any, appertaining thereto unless such consideration is offered to be paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement. ARTICLE X Consolidation, Merger, Sale or Conveyance ----------------------------------------- SECTION 10.01. Consolidations and Mergers of the Company. The ------------------------------------------ Company shall not consolidate with, or sell or convey or lease all or substantially all of its assets to, or merge with or into any other Person, unless: (i) either (a) the Company shall be the continuing corporation in the case of a merger or (b) the resulting, surviving or transferee Person if other than the Company (the "Successor Company") shall be a corporation organized and existing under the laws of the United States, any State thereof or the District of Columbia and the Successor Company shall expressly assume, by an Indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Debt Securities and Coupons, if any, according to their tenor, and this Indenture; (ii) immediately after giving effect to such transaction, no Default or Event of Default would occur or be continuing; (iii) the Successor Company waives any right to redeem any Bearer Security under circumstances in which the Successor Company would be entitled to redeem such Bearer Security but the Company would not have been so entitled to redeem if the consolidation, merger, conveyance, transfer or lease had not occurred; and (iv) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating 71 that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. SECTION 10.02. Rights and Duties of Successor Corporation. In case ------------------------------------------- of any consolidation or merger, or conveyance or sale of the assets of the Company as an entirety or substantially as an entirety in accordance with Section 10.01, the Successor Company shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and the predecessor corporation shall be relieved of any further obligation under the Indenture and the Securities. The Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all the Debt Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of the Successor Company, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt Securities and Coupons, if any, appertaining thereto, which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Debt Securities and Coupons, if any, appertaining thereto, which the Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Debt Securities and Coupons, if any, appertaining thereto so issued shall in all respects have the same legal rank and benefit under this Indenture as the Debt Securities and Coupons, if any, appertaining thereto theretofore or thereafter issued in accordance with the terms of this Indenture as though all such Debt Securities and Coupons had been issued at the date of the execution hereof. In case of any such consolidation, merger, sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Debt Securities and Coupons, if any, appertaining thereto thereafter to be issued as may be appropriate. ARTICLE XI Satisfaction and Discharge of Indenture; Defeasance; --------------------------------------------------- Unclaimed Moneys ---------------- SECTION 11.01. Applicability of Article. If, pursuant to Section ------------------------- 2.03, provision is made for the defeasance of Debt Securities of a series and if the Debt Securities of such series are Registered Securities and denominated and payable only in Dollars (except as provided pursuant to Section 2.03), then the provisions of this Article XI relating to defeasance of Debt Securities shall be applicable except as otherwise specified pursuant to Section 2.03 for Debt Securities of such series. Defeasance provisions, if any, for Debt Securities denominated in a Foreign Currency or for Bearer Securities may be specified pursuant to Section 2.03. 72 SECTION 11.02. Satisfaction and Discharge of Indenture; Defeasance. --------------------------------------------------- (a) If at any time (i) the Company shall have delivered to the Trustee for cancellation all Debt Securities of any series theretofore authenticated and delivered (other than (1) Coupons appertaining to Bearer Securities of such series called for redemption and maturing after the relevant redemption date, surrender of which has been waived, (2) any Debt Securities and Coupons of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09 and (3) Debt Securities and Coupons for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company as provided in Section 11.05) or (ii) all Debt Securities and the Coupons, if any, of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, whether by redemption or at Stated Maturity or otherwise, and the Company shall deposit with the Trustee as trust funds the entire amount in the Currency in which such Debt Securities are denominated with respect to Bearer Securities or in Dollars with respect to Registered Securities (in each case except as otherwise provided pursuant to Section 2.03) sufficient to pay at maturity or upon redemption all Debt Securities of such series not theretofore delivered to the Trustee for cancellation, including principal and premium, if any, and interest due or to become due on such date of maturity or redemption date, as the case may be, and if in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of such Debt Securities herein expressly provided for and rights to receive payments of principal of, and premium, if any, and interest on, such Debt Securities and any right to receive additional interest as provided in Section 4.06 and rights of the Trustee under Section 7.06) with respect to the Debt Securities of such series, and the Trustee, on demand of the Company accompanied by an Officers' Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture. (b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any time may terminate, with respect to Debt Securities of a particular series, (i) all its obligations under the Debt Securities of such series and this Indenture with respect to the Debt Securities of such series ("legal defeasance option") or (ii) its obligations with respect to the Debt Securities of such series under Sections 4.07 and 4.08 and clause (iii) of Section 10.01 and the related operation of Section 6.01(d) and the operation of Sections 6.01(d) and (h) ("covenant defeasance option"). The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. If the Company exercises its legal defeasance option, payment of the Debt Securities of the defeased series may not be accelerated because of an Event of Default. If the Company exercises its covenant defeasance option, payment of the Debt Securities 73 of the defeased series may not be accelerated because of an Event of Default specified in Sections 6.01(c), (d) and (h) (except to the extent covenants or agreements referenced in such Sections remain applicable). Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates. (c) Notwithstanding clauses (a) and (b) above, the Company's obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06 and 11.07 shall survive until the Debt Securities of the defeased series have been paid in full. Thereafter, the Company's obligations in Sections 7.06, 11.05 and 11.06 shall survive. SECTION 11.03. Conditions of Defeasance. The Company may exercise ------------------------- its legal defeasance option or its covenant defeasance option with respect to Debt Securities of a particular series only if: (1) the Company irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of principal of, and premium, if any, and interest on, the Debt Securities of such series to maturity or redemption, as the case may be; (2) the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal, premium and interest when due on all the Debt Securities of such series to maturity or redemption, as the case may be; (3) 123 days pass after the deposit is made and during the 123- day period no Default specified in Section 6.01(f) or (g) with respect to the Company occurs which is continuing at the end of the period; (4) no Default has occurred and is continuing on the date of such deposit and after giving effect thereto; (5) the deposit does not constitute a default under any other agreement binding on the Company; (6) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940; 74 (7) in the event of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a ruling, or (ii) since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case of the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred; (8) in the event of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; (9) the Company shall have delivered to the Trustee an Officers' Certificate to the effect that the Debt Securities of such series, if then listed on any securities exchange, will not be delisted as a result of such deposit. (10) 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); and (11) the Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Debt Securities of such series as contemplated by this Article XI have been complied with. Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Debt Securities of such series at a future date in accordance with Article III. SECTION 11.04. Application of Trust Money. The Trustee shall hold --------------------------- in trust money or U.S. Government Obligations deposited with it pursuant to this Article XI. It shall apply the deposited money and the money from U.S. Government Obligations through any paying agent and in accordance with this Indenture to the payment of principal of, and premium, if any, and interest on, the Debt Securities and Coupons, if any, of the defeased series. 75 SECTION 11.05. Repayment to Company. The Trustee and any paying --------------------- agent shall promptly turn over to the Company upon request any excess money or securities held by them at any time. Subject to any applicable abandoned property law, the Trustee and any paying agent shall pay to the Company upon request any money held by them for the payment of principal, premium or interest that remains unclaimed for two years, and, thereafter, Holders entitled to such money must look to the Company for payment as general creditors. SECTION 11.06. Indemnity for U.S. Government Obligations. The ------------------------------------------ Company shall pay and shall indemnify the Trustee and the Holders against any tax, fee or other change imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations. SECTION 11.07. Reinstatement. If the Trustee or any paying agent is -------------- unable to apply any money or U.S. Government Obligations in accordance with this Article XI by reason of any legal proceeding or by reason of any order or judgment of any court or government authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture and the Debt Securities of the defeased series shall be revived and reinstated as though no deposit had occurred pursuant to this Article XI until such time as the Trustee or any paying agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article XI. ARTICLE XII Miscellaneous Provisions ------------------------ SECTION 12.01. Successors and Assigns of Company Bound by Indenture. ----------------------------------------------------- All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Company or the Trustee shall bind its successors and assigns, whether so expressed or not. SECTION 12.02. Acts of Board, Committee or Officer of Successor ------------------------------------------------ Company Valid. Any act or proceeding by any provision of this Indenture - -------------- authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any Successor Company. SECTION 12.03. Required Notices or Demands. Except as otherwise ---------------------------- expressly provided in this Indenture, any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders to or on the Company may be given or served by being deposited postage prepaid in a 76 post office letter box in the United States addressed (until another address is filed by the Company with the Trustee) as follows: Electronic Data Systems Corporation, 5400 Legacy Drive, Mail Stop H2-8W-40, Plano, Texas 75024-3199, Attention: Chief Financial Officer. Except as otherwise expressly provided in this Indenture, any notice, direction, request or demand by the Company or by any Holder to or upon the Trustee may be given or made, for all purposes, by being deposited postage prepaid in a post office letter box in the United States addressed to the corporate trust office of the Trustee initially at 600 Travis, 8th Floor, Houston, Texas 77002, Attention: Global Trust Services - EDS. The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice required or permitted to a Registered Holder by the Company or the Trustee pursuant to the provisions of this Indenture shall be deemed to be properly mailed by being deposited postage prepaid in a post office letter box in the United States addressed to such Holder at the address of such Holder as shown on the Debt Security Register. Any report pursuant to Section 313 of the Trust Indenture Act shall be transmitted in compliance with subsection (c) therein. Any notice required or permitted to a Bearer Holder by the Company or the Trustee pursuant to this Indenture shall be deemed to be properly given if published on two separate business days in an Authorized Newspaper or Newspapers in such Place or Places of Payment specified pursuant to Section 2.03, the first such publication to be not earlier than the earliest date and not later than two business days prior to the latest date prescribed for the giving of such notice. Notwithstanding the foregoing, any notice to Holders of Floating Rate Debt Securities regarding the determination of a periodic rate of interest, if such notice is required pursuant to Section 2.03, shall be sufficiently given if given in the manner specified pursuant to Section 2.03. In the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder. In the event of suspension of publication of any Authorized Newspaper or by reason of any other cause it shall be impracticable to give notice by publication, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder. Failure to mail a notice or communication to a Holder or any defect in it or any defect in any notice by publication as to a Holder shall not affect the sufficiency of such notice with respect to other Holders. If a notice or communication is mailed or published in the manner provided above, it is conclusively presumed duly given. 77 SECTION 12.04. Indenture and Debt Securities to Be Construed in ------------------------------------------------ Accordance with the Laws of the State of New York. This Indenture, each Debt - -------------------------------------------------- Security and each Coupon shall be deemed to be New York contracts, and for all purposes shall be construed in accordance with the laws of said State (without reference to principles of conflicts of law). SECTION 12.05. Officers' Certificate and Opinion of Counsel to Be -------------------------------------------------- Furnished upon Application or Demand by the Company. Upon any application or - ---------------------------------------------------- demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such document is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the Person making such certificate or opinion has read such covenant or condition, (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 such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with. SECTION 12.06. Payments Due on Legal Holidays. In any case where the ------------------------------- date of maturity of interest on or principal of and premium, if any, on the Debt Securities of a series or the date fixed for redemption or repayment of any Debt Security or the making of any sinking fund payment shall not be a business day at any Place of Payment for the Debt Securities of such series, then payment of interest or principal and premium, if any, or the making of such sinking fund payment need not be made on such date at such Place of Payment, 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 date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date. If a record date is not a business day, the record date shall not be affected. SECTION 12.07. Provisions Required by Trust Indenture Act to Control. ------------------------------------------------------ If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 318, inclusive, of the Trust Indenture Act, such required provision shall control. 78 SECTION 12.08. Computation of Interest on Debt Securities. Interest, ------------------------------------------- if any, on the Debt Securities shall be computed on the basis of a 360-day year of twelve 30-day months, except as may otherwise be provided pursuant to Section 2.03. SECTION 12.09. Rules by Trustee, Paying Agent and Registrar. The --------------------------------------------- Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar and any paying agent may make reasonable rules for their functions. SECTION 12.10. No Recourse Against Others. An incorporator or any --------------------------- past, present or future director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Debt Securities, the Coupons or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Debt Security or Coupon, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Debt Securities and Coupons. SECTION 12.11. Severability. In case any provision in this ------------- Indenture, the Debt Securities or the Coupons 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 12.12. Effect of Headings. The article and section headings ------------------- herein and in the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 12.13. Indenture May Be Executed in Counterparts. This ------------------------------------------ Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. The Trustee hereby accepts the trusts in this Indenture upon the terms and conditions hereinafter set forth. 79 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly signed as of the date first written above. ELECTRONIC DATA SYSTEMS CORPORATION By: /s/ Joseph M. Grant ------------------------------------- Name: Joseph M. Grant Title: Executive Vice President and Chief Financial Officer TEXAS COMMERCE BANK NATIONAL ASSOCIATION By: /s/ Terry Stewart ------------------------------------- Name: Terry Stewart Title: Assistant Vice President and Trust Officer 80 EXHIBIT A --------- FOREST LANE DESCRIPTION The Forest Lane property consists of 175.3498 acres located in the City of Dallas, Dallas County, Texas, Being part of Block 7462 of Electronic Data Systems Addition M.J. Sanchez Survey Abstract 1272 and Hiram Wilburn Survey Abstract 1568. The site is bound by White Rock Creek on the East, Forest Lane on the South, Hillcrest Road on the West and Churchill Way on the North. PLANO TEXAS DESCRIPTION The Plano Texas property consists of 363 acres (plus the approximately 18-acre parcel on which the Education Buildings referred to below are located) located in the City of Plano, Collin County, Texas, bound by White Rock Creek on the East, Tennyson Parkway on the South, Parkwood Drive on the West and Legacy Drive on the North. The property currently contains the following principal facilities; EDS Centre Building, Cluster I, Cluster II, Cluster III; IPC I, IPC II, IPC III, IPC IV; IMC Command Center; Health and Fitness Facility; Vehicle Service Center; Heliport; and Ground Maintenance Facility. Also included in this Plano Texas Description is Education Building I, Education Building 2, Education Building 3, and Education Building 4 located in the City of Plano, Collin County, Texas, bound by Tennyson Parkway on the North and Democracy Drive on the West. A-1 EX-5 4 LEGAL OPINION OF D. GILBERT FREIDLANDER EXHIBIT 5 [EDS Letterhead] August 13, 1996 Electronic Data Systems Corporation 5400 Legacy Drive Plano, Texas 75024-3199 Ladies and Gentlemen: I have acted as counsel to Electronic Data Systems Corporation, a Delaware corporation ("EDS"), in connection with the registration by EDS under the Securities Act of 1933, as amended (the "Securities Act"), on a Registration Statement on Form S-3 (the "Registration Statement") of the offer and sale from time to time pursuant to Rule 415 under the Securities Act of debt securities of EDS with an aggregate initial offering price not to exceed $2,000,000,000 (the "Debt Securities"). The Debt Securities may be issued in one or more series under an Indenture dated as of August 12, 1996 (the "Indenture") between EDS and Texas Commerce Bank National Association, as trustee (the "Trustee"). This opinion is being furnished to you for filing as Exhibit 5 to the Registration Statement. In reaching the opinions set forth herein, I have reviewed the Restated Certificate of Incorporation and By-laws of EDS, resolutions adopted by the Board of Directors of EDS, and the Indenture. Based upon the undersigned's examination as aforesaid, and subject to the limitations and qualifications hereinafter set forth, the undersigned is of the opinion that when (A) the Chief Financial Officer of EDS has taken all necessary action to approve the issuance and terms of the Debt Securities, the terms of the offering thereof and related matters and (B) the Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and the applicable definitive purchase, underwriting or similar agreement approved by an authorized officer of EDS upon payment of the consideration therefor provided for therein, such Debt Securities will be legally issued and will constitute (assuming the due authentication of the Debt Securities by the Trustee) valid and binding obligations of EDS, enforceable against EDS in accordance with their terms, except as such enforcement is subject to (i) any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other law relating to or affecting creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at equity or at law). The opinion expressed above is subject in all respects to the following assumptions, exceptions and qualifications: (a) I have assumed that (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and comply with all applicable laws; (ii) the Registration Statement will be effective and will comply with all applicable laws at the time the Debt Securities are offered or issued as contemplated by the Registration Statement (if such offering or issuance requires the delivery of a prospectus under the Securities Act or pursuant to any other law); (iii) the Indenture will have been duly qualified under the Trust Indenture Act of 1939, as amended, (iv) a Prospectus Supplement will have been prepared and filed with the Securities and Exchange Commission describing the Debt Securities offered thereby and will comply with all applicable laws; (v) all Debt Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate Prospectus Supplement; and (vi) a definitive purchase, underwriting or similar agreement with respect to any Debt Securities offered or issued will have been duly authorized, executed and delivered by EDS and the other parties thereto, that such agreement will constitute the legal, valid and binding obligation of each such other party, enforceable against each such other party in accordance with its terms, and that each such other party will have the requisite power and authority to perform its obligations thereunder and to effect the purchase of the Debt Securities. (b) I have assumed that the trustee is qualified to act as trustee under the Indenture and that the Trustee has duly executed and delivered the Indenture. (c) I express no opinion as to (i) the enforceability of provisions in the Indenture or any other agreement or instrument with respect to delay or omission of enforcement of rights or remedies, or waivers or defenses, or waivers of benefits of stay, extension, moratorium, redemption, statutes of limitation or other nonwaivable benefits bestowed by operation of law, or (ii) the enforceability of indemnification provisions to the extent they purport to related to liabilities resulting from or based upon negligence or any violation of federal or state securities or blue sky laws. (d) I express no opinion as to the requirements of or compliance with federal or state securities laws or regulations. (e) The opinions expressed above are limited to the laws of the State of Texas, the General Corporation Law of the State of Delaware, and the federal laws of the United States of America. I am not admitted to the practice of law in the State of Delaware. I note that the Indenture is, and the Debt Securities will be, governed by the laws of the State of New York. While I express no opinion with respect to the laws of the State of New York, I have assumed, without any independent investigation, that the laws of the State of New York are the same as the laws of the State of Texas. The undersigned hereby consents to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement and to the reference to the undersigned beneath the caption "Legal Matters" in the Prospectus forming a part of the Registration Statement. Very truly yours, /S/ D. GILBERT FRIEDLANDER D. Gilbert Friedlander Senior Vice President and General Counsel EX-12 5 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES EXHIBIT 12 ELECTRONIC DATA SYSTEMS CORPORATION COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
YEAR TO DATE JUNE YEARS ENDED DECEMBER 31, 1996 1995 1994 1993 1992 1991 ------------- -------- -------- -------- --------- -------- (DOLLARS IN MILLIONS) Income (loss) before cumulative effect of accounting change $(107.7) $ 938.9 $ 821.9 $ 724.0 $ 635.5 $ 563.0 United States, foreign, and other income taxes (60.6) 528.1 462.3 407.3 365.3 330.7 Equity in (income) losses of affiliates 2.4 8.8 6.2 4.9 (3.4) 9.5 Cash dividends received from affiliates 3.0 2.2 -- 0.6 0.6 0.5 Amortization of capitalized interest 0.3 0.5 0.5 0.5 -- -- ------- -------- -------- -------- -------- -------- Income before income taxes, undistributed (income) losses of affiliates, and amortization of capitalized interest (162.6) 1,478.5 1,290.9 1,137.3 998.0 903.7 ------- -------- -------- -------- -------- -------- Fixed charges included in net income: Interest and related charges on debt 72.3 120.8 51.7 34.5 43.0 28.3 Portion of rentals deemed to be interest 111.8 228.0 176.9 189.9 206.1 194.1 ------- -------- -------- -------- -------- -------- Total fixed charges included in net income 184.1 348.8 228.6 224.4 249.1 222.4 ------- -------- -------- -------- -------- -------- Earnings available for fixed charges $ 21.5 $1,827.3 $1,519.5 $1,361.7 $1,247.1 $1,126.1 ======= ======== ======== ======== ======== ======== Fixed charges: Fixed charges included in net income $ 184.1 $ 348.8 $ 228.6 $ 224.4 $ 249.1 $ 222.4 Interest capitalized in the period -- -- 1.2 5.4 18.1 15.5 ------- -------- -------- -------- -------- -------- Total fixed charges $ 184.1 $ 348.8 $ 229.8 $ 229.8 $ 267.2 $ 237.9 ------- -------- -------- -------- -------- -------- Fixed charge coverage (deficiency) $(162.6) $1,478.5 $1,289.7 $1,131.9 $ 979.9 $ 888.2 ======= ======== ======== ======== ======== ======== Ratio of earnings to fixed charges n/a 5.24 6.61 5.93 4.67 4.73 ======= ======== ======== ======== ======== ========
EX-23.A 6 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23(A) CONSENT OF INDEPENDENT AUDITORS THE BOARD OF DIRECTORS ELECTRONIC DATA SYSTEMS CORPORATION: We consent to the use of our reports incorporated herein by reference and to the reference to our firm under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ KPMG PEAT MARWICK LLP Dallas, Texas August 13, 1996 EX-25 7 FORM T-1 EXHIBIT 25 ================================================================================ 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)______ _______________ TEXAS COMMERCE BANK NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) 74-0800980 (I.R.S. Employer Identification No.) 712 MAIN STREET HOUSTON, TEXAS 77002 (Address of principal executive offices) (Zip Code) ___________________ ELECTRONIC DATA SYSTEMS CORPORATION (Exact name of obligor as specified in its charter) DELAWARE 75-2548221 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 5400 LEGACY DRIVE PLANO, TEXAS 75024 (Address of principal executive offices) (Zip Code) DEBT SECURITIES (Title of the indenture securities) ================================================================================ 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, Washington, D.C. Federal Deposit Insurance Corporation, Washington, D.C. Board of Governors of The Federal Reserve System, Washington, D.C. (B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. Yes. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. The obligor is not an affiliate of the trustee. (See Note on Page 5.) ITEM 3. VOTING SECURITIES OF THE TRUSTEE. FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES OF THE TRUSTEE: COL. A COL. B TITLE OF CLASS AMOUNT OUTSTANDING -------------- ------------------ Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES. IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION: (A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE. Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. (B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER INDENTURE. Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR UNDERWRITERS. IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION. Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS. FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF THE OBLIGOR. COL. A COL. B COL. C COL. D PERCENTAGE OF VOTING SECURITIES REPRESENTED BY AMOUNT OWNED AMOUNT GIVEN NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C ------------- -------------- ------------- ----------------- Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS. FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER. COL. A COL. B COL. C COL. D PERCENTAGE OF VOTING SECURITIES REPRESENTED BY AMOUNT OWNED AMOUNT GIVEN NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C ------------- -------------- ------------- ----------------- Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE. FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY THE TRUSTEE. COL. A COL. B COL. C COL. D WHETHER THE AMOUNT OWNED SECURITIES BENEFICIALLY OR HELD PERCENT OF CLASS ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN TITLE OF CLASS SECURITIES IN DEFAULT IN COL. C -------------- ------------ --------------------- ---------------- Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE. COL. A COL. B COL. C COL. D AMOUNT OWNED BENEFICIALLY OR HELD PERCENT OF CLASS AS COLLATERAL SECURITY REPRESENTED BY NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C -------------- ------------ --------------------- ---------------- Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR. IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON: COL. A COL. B COL. C COL. D AMOUNT OWNED BENEFICIALLY OR HELD PERCENT OF CLASS AS COLLATERAL SECURITY REPRESENTED BY NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C ------------------ ------------ --------------------- ---------------- Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR. IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE. COL. A COL. B COL. C COL. D AMOUNT OWNED BENEFICIALLY OR HELD PERCENT OF CLASS AS COLLATERAL SECURITY REPRESENTED BY NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C ------------------ ------------ --------------------- ---------------- Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE. EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION: COL. A COL. B COL. C NATURE OF AMOUNT INDEBTEDNESS OUTSTANDING DATE DUE ------------ ----------- -------- Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 13. DEFAULTS BY THE OBLIGOR. (A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT. There is not, nor has there been, a default with respect to the securities under this indenture. (See Note on Page 5.) (B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT. There has not been a default under any such indenture or series. (See Note on Page 5.) ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS. IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. Not applicable by virtue of Form T-1 General Instruction B and response to Item 13. ITEM 15. FOREIGN TRUSTEE. IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE ACT. Not applicable. ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY. .1 -- A copy of the articles of association of the trustee as now in effect. #2 -- A copy of the certificate of authority of the trustee to commence business. *3 -- A copy of the authorization of the trustee to exercise corporate trust powers. []4 -- A copy of the existing by-laws of the trustee. 5 -- Not applicable. *6 -- The consent of the trustee required by Section 321(b) of the Act. 7 -- A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8 -- Not applicable. 9 -- Not applicable. - -------------
. Incorporated by reference to exhibit bearing the same designation and previously filed with the Securities and Exchange Commission as exhibits to the Form S-3 File No. 33-56195. # Incorporated by reference to exhibit bearing the same designation and previously filed with the Securities and Exchange Commission as an exhibit to the Form S-3 File No. 33-42814. * Incorporated by reference to exhibit bearing the same designation and previously filed with the Securities and Exchange Commission as exhibits to the Form S-11 File No. 33-25132. [] Incorporated by reference to exhibit bearing the same designation and previously filed with the Securities and Exchange Commission as exhibits to the Form S-3 File No. 33-65055. _______________________________ NOTE Inasmuch as this Form T-1 is filed prior to the ascertainment by the trustee of all facts on which to base responsive answers to Items 2 and 13, the answers to said Items are based on incomplete information. Such Items may, however, be considered as correct unless amended by an amendment to this Form T-1. SIGNATURE PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE TRUSTEE, TEXAS COMMERCE BANK 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 HOUSTON AND STATE OF TEXAS, ON THE 7TH DAY OF AUGUST, 1996. TEXAS COMMERCE BANK NATIONAL ASSOCIATION By: /s/ Terry L. Stewart ----------------------- Terry L. Stewart Assistant Vice President EXHIBIT 7 Board of Governors of the Federal Reserve System OMB Number: 7100-0036 Federal Deposit Insurance Corporation OMB Number: 3064-0052 Office of the Comptroller of the Currency OMB Number: 1557-0081 Expires March 31, 1999 FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL - -------------------------------------------------------------------------------- [1] [LOGO OF Please refer to page i, EDS APPEARS Table of Contents, for HERE] the required disclosure of estimated burden. - -------------------------------------------------------------------------------- CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR A BANK WITH DOMESTIC AND FOREIGN OFFICES-FFIEC 031 REPORT AT THE CLOSE OF BUSINESS JUNE 30, 1996 This report is required by law: 12 U.S.C. (S) 324 (State member banks); 12 U.S.C. (S) 1817 (State nonmember banks); and 12 U.S.C. (S) 161 (National banks). - -------------------------------------------------------------------------------- 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, Kenneth L. Tilton, Executive Vice President ------------------------------------------- Name and Title of Officer Authorized to Sign Report of the named bank do hereby declare that these Reports of Condition and Income (including the supporting schedules) have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief. /s/ Kenneth L. Tilton - ------------------------------------------- Signature of Officer Authorized to Sign Report July 31, 1996 - ------------------------------------------- Date of Signature - -------------------------------------------------------------------------------- FOR BANKS SUBMITTING HARD COPY REPORT FORMS: STATE MEMBER BANKS: Return the original and one copy to the appropriate Federal Reserve District Bank. STATE NONMEMBER BANKS: Return the original only in the special return address envelope provided. If express mail is used in lieu of the special return address envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114. - -------------------------------------------------------------------------------- FDIC Certificate Number |0|3|2|6|3| ___________ (RCRI 9050) (960630) ___________ (RCRI 9999) 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. - -------------------------------------------------------------------------------- The Reports of Condition and Income are to be prepared in accordance wth 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/ Signature Appears Here - ------------------------------------ Director (Trustee) /s/ Signature Appears Here - ------------------------------------ Director (Trustee) /s/ Signature Appears Here - ------------------------------------ Director (Trustee) - -------------------------------------------------------------------------------- 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. - -------------------------------------------------------------------------------- CALL NO. 196 31 06-30-96 STBK:P 48-3926 00373 STCERT: 48-03263 TEXAS COMMERCE BANK NATIONAL ASSOCIA 712 MAIN STREET HOUSTON, TX 77001 Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency FFIEC 031 Page i [2] Consolidated Reports of Condition and Income for A Bank With Domestic and Foreign Offices - -------------------------------------------------------------------------------- TABLE OF CONTENTS Signature Page Cover Report of Income Schedule RI-Income Statement..................................... RI-1, 2, 3 Schedule RI-A-Changes in Equity Capital.......................... RI-4 Schedule RI-B-Charge-offs and Recoveries and Changes in Allowance for Loan and Lease Losses....................................... RI-4, 5 Schedule RI-C-Applicable Income Taxes by Taxing Authority........ RI-5 Schedule RI-D-Income from International Operations............... RI-6 Schedule RI-E-Explanations....................................... RI-7, 8
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 Report of Condition Schedule RC-Balance Sheet........................................ RI-1, 2 Schedule RC-A-Cash and Balances Due From Depository Instituions.. RC-3 Schedule RC-B-Securities......................................... RC-3, 4, 5 Schedule RC-C-Loans and Lease Financing Receivables: Part I. Loans and Leases...................................... RC-6, 7 Part II. Loans to Small Businesses and Small Farms (included in the forms for June 30 only).............................. RC-7a, 7b Schedule RC-D-Trading Assets and Liabilities (to be completed only by selected banks)........................................ RC-8 Schedule RC-E-Deposit Liabilities................................ RC-9, 10, 11 Schedule RC-F-Other Assets....................................... RC-11 Schedule RC-G-Other Liabilities.................................. RC-11 Schedule RC-H-Selected Balance Sheet Items for Domestic Offices.. RC-12 Schedule RC-I-Selected Assets and Liabilities of IBFs............ RC-13 Schedule RC-K-Quarterly Averages................................. RC-13 Schedule RC-L-Off-Balance Sheet Items............................ RC-14, 15, 16 Schedule RC-M-Memoranda.......................................... RC-17, 18 Schedule RC-N-Past Due and Nonaccrual Loans, Leases, and Other Assets......................................................... RC-19, 20 Schedule RC-O-Other Data for Deposit Insurance Assessments....... RC-21, 22 Schedule RC-R-Regulatory Capital................................. RC-23, 24 Optional Narrative Statement Concerning the Amounts Reported in the Reports of Condition and Income......................... RC-25 Special Report (to be completed by all banks) Schedule RC-J-Repricing Opportunities (sent only to and to be completed only by savings banks)
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.
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RI-1 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Consolidated Report of Income for the period January 1, 1996-June 30, 1996 All Report of Income schedules are to be reported on a calendar year-to-date basis in thousands of dollars. Schedule RI--Income Statement __________ | I480 | (- ____________ ________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | _______________________________________________________________________________________________ ____________________ 1. Interest income: | ////////////////// | a. Interest and fee income on loans: | ////////////////// | (1) In domestic offices: | ////////////////// | (a) Loans secured by real estate ................................................... | 4011 107,276 | 1.a.(1)(a) (b) Loans to depository institutions ............................................... | 4019 1,488 | 1.a.(1)(b) (c) Loans to finance agricultural production and other loans to farmers ............ | 4024 2,430 | 1.a.(1)(c) (d) Commercial and industrial loans ................................................ | 4012 215,606 | 1.a.(1)(d) (e) Acceptances of other banks ..................................................... | 4026 0 | 1.a.(1)(e) (f) Loans to individuals for household, family, and other personal expenditures: | ////////////////// | (1) Credit cards and related plans ............................................. | 4054 8,181 | 1.a.(1)(f)(1) (2) Other ...................................................................... | 4055 93,852 | 1.a.(1)(f)(2) (g) Loans to foreign governments and official institutions ......................... | 4056 5,601 | 1.a.(1)(g) (h) Obligations (other than securities and leases) of states and political | ////////////////// | subdivisions in the U.S.: | ////////////////// | (1) Taxable obligations ........................................................ | 4503 0 | 1.a.(1)(h)(1) (2) Tax-exempt obligations ..................................................... | 4504 712 | 1.a.(1)(h)(2) (i) All other loans in domestic offices ............................................ | 4058 38,817 | 1.a.(1)(i) (2) In foreign offices, Edge and Agreement subsidiaries, and IBFs ...................... | 4059 4,362 | 1.a.(2) b. Income from lease financing receivables: | ////////////////// | (1) Taxable leases ..................................................................... | 4505 5,225 | 1.b.(1) (2) Tax-exempt leases .................................................................. | 4307 0 | 1.b.(2) c. Interest income on balances due from depository institutions:(1) | ////////////////// | (1) In domestic offices ................................................................ | 4105 127 | 1.c.(1) (2) In foreign offices, Edge and Agreement subsidiaries, and IBFs ...................... | 4106 0 | 1.c.(2) d. Interest and dividend income on securities: | ////////////////// | (1) U.S. Treasury securities and U.S. Government agency and corporation obligations .... | 4027 137,514 | 1.d.(1) (2) Securities issued by states and political subdivisions in the U.S.: | ////////////////// | (a) Taxable securities ............................................................. | 4506 15 | 1.d.(2)(a) (b) Tax-exempt securities .......................................................... | 4507 8 | 1.d.(2)(b) (3) Other domestic debt securities ..................................................... | 3657 103 | 1.d.(3) (4) Foreign debt securities ............................................................ | 3658 0 | 1.d.(4) (5) Equity securities (including investments in mutual funds) .......................... | 3659 1,384 | 1.d.(5) e. Interest income from trading accounts .................................................. | 4069 234 | 1.e. ______________________ ____________ (1) Includes interest income on time certificates of deposit not held for trading.
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RI-2 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RI--Continued ________________ Dollar Amounts in Thousands | Year-to-date | ___________________________________________________________________________________ ______________ 1. Interest income (continued) | RIAD Bil Mil Thou | f. Interest income on federal funds sold and securities purchased | ////////////////// | under agreements to resell in domestic offices of the bank and of | ////////////////// | its Edge and Agreement subsidiaries, and in IBFs .................... | 4020 13,714 | 1.f. g. Total interest income (sum of items 1.a through 1.f) ................ | 4107 636,649 | 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 2,772 | 2.a.(1)(a) (b) Nontransaction accounts: | ////////////////// | (1) Money market deposit accounts (MMDAs) ................... | 4509 20,998 | 2.a.(1)(b)(1) (2) Other savings deposits .................................. | 4511 51,941 | 2.a.(1)(b)(2) (3) Time certificates of deposit of $100,000 or more ........ | 4174 21,216 | 2.a.(1)(b)(3) (4) All other time deposits ................................. | 4512 67,067 | 2.a.(1)(b)(4) (2) Interest on deposits in foreign offices, Edge and Agreement | ////////////////// | subsidiaries, and IBFs .......................................... | 4172 8,097 | 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 26,377 | 2.b. c. Interest on demand notes issued to the U.S. Treasury, trading | ////////////////// | liabilities and other borrowed money ................................ | 4185 18,422 | 2.c. d. Interest on mortgage indebtedness and obligations under | ////////////////// | capitalized leases .................................................. | 4072 774 | 2.d. e. Interest on subordinated notes and debentures ....................... | 4200 14,452 | 2.e. f. Total interest expense (sum of items 2.a through 2.e) ............... | 4073 232,116 | 2.f. ___________________________ 3. Net interest income (item 1.g minus 2.f) ............................... | ////////////////// | RIAD 4074 | 404,533 | 3. ___________________________ 4. Provisions: | ////////////////// | ___________________________ a. Provision for loan and lease losses ................................. | ////////////////// | RIAD 4230 | 0 | 4.a. b. Provision for allocated transfer risk ............................... | ////////////////// | RIAD 4243 | 0 | 4.b. ___________________________ 5. Noninterest income: | ////////////////// | a. Income from fiduciary activities .................................... | 4070 59,200 | 5.a. b. Service charges on deposit accounts in domestic offices ............. | 4080 71,312 | 5.b. c. Trading gains (must equal Schedule RI, sum of Memorandum | ////////////////// | items 8.a through 8.d)............................................... | A220 14,259 | 5.c. d. Other foreign transaction gains (losses) ............................ | 4076 0 | 5.d. e. Not applicable....................................................... | ////////////////// | f. Other noninterest income: | ////////////////// | (1) Other fee income ................................................ | 5407 38,944 | 5.f.(1) (2) All other noninterest income* ................................... | 5408 20,107 | 5.f.(2) ___________________________ g. Total noninterest income (sum of items 5.a through 5.f) ............. | ////////////////// | RIAD 4079 | 203,822 | 5.g. 6. a. Realized gains (losses) on held-to-maturity securities .............. | ////////////////// | RIAD 3521 | 0 | 6.a. b. Realized gains (losses) on available-for-sale securities ............ | ////////////////// | RIAD 3196 | 4,389 | 6.b. ___________________________ 7. Noninterest expense: | ////////////////// | a. Salaries and employee benefits ...................................... | 4135 209,683 | 7.a. b. Expenses of premises and fixed assets (net of rental income) | ////////////////// | (excluding salaries and employee benefits and mortgage interest) .... | 4217 75,228 | 7.b. c. Other noninterest expense* .......................................... | 4092 113,758 | 7.c. ___________________________ d. Total noninterest expense (sum of items 7.a through 7.c) ............ | ////////////////// | RIAD 4093 | 398,669 | 7.d. ___________________________ 8. Income (loss) before income taxes and extraordinary items and other | ////////////////// |___________________________ adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d)| ////////////////// | RIAD 4301 | 214,075 | 8. | ////////////////// | | | 9. Applicable income taxes (on item 8) .................................... | ////////////////// | RIAD 4302 | 78,165 | 9. | ////////////////// ___________________________ 10. Income (loss) before extraordinary items and other adjustments | ////////////////// | RIAD 4300 | 135,910 | 10. (item 8 minus 9) ....................................................... _________________________________________________ ____________ *Describe on Schedule RI-E--Explanations.
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RI-3 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RI--Continued ________________ | Year-to-date | ______ ______________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | ___________________________________________________________________________ ____________________ 11. Extraordinary items and other adjustments: | ////////////////// | a. Extraordinary items and other adjustments, gross of income taxes* . | 4310 0 | 11.a. b. Applicable income taxes (on item 11.a)* ........................... | 4315 0 | 11.b. c. Extraordinary items and other adjustments, net of income taxes | ////////////////// |___________________________ (item 11.a minus 11.b) ............................................ | ////////////////// | RIAD 4320 | 0 | 11.c. | ////////////////// |___________________________ 12. Net income (loss) (sum of items 10 and 11.c) ......................... | ////////////////// | RIAD 4340 | 135,910 | 12. _________________________________________________ __________ | I481 | (- ________________ Memoranda | Year-to-date | ______ ______________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | ______________________________________________________________________________________________________ ____________________ 1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after | ////////////////// | August 7, 1986, that is not deductible for federal income tax purposes .......................... | 4513 100 | M.1. 2. Income from the sale and servicing of mutual funds and annuities in domestic offices | ////////////////// | (included in Schedule RI, item 8).. ............................................................. | 8431 8,458 | M.2. 3.-4. Not applicable. | ////////////////// | 5. Number of full-time equivalent employees on payroll at end of current period (round to | //// Number | nearest whole number) ........................................................................... | 4150 8,754 | 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 | 7. accounting this calendar year, report the date of the bank's acquisition......................... | 9106 00/00/00 | M.7. 8. Trading revenue (from cash instruments and off-balance sheet derivative instruments) | ////////////////// | (sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c): | //// Bil Mil Thou | a. Interest rate exposures....................................................................... | 8757 6,911 | M.8.a. b. Foreign exchange exposures.................................................................... | 8758 7,348 | 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 8,763 | M.9.a. b. Net (increase) decrease to interest expense................................................... | 8762 (870)| M.9.b. c. Other (noninterest) allocations............................................................... | 8763 (616)| M.9.c. 10. Credit losses on off-balance sheet derivatives (see instructions)................................ | A251 0 | M.10. ______________________ ____________ *Describe on Schedule RI-E--Explanations.
5 [NO COPY OR DATA SUPPLIED FOR PAGE 6?????] 6
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RI-5 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RI-B--Continued Part I. Continued _________________________________ ________ | (Column A) | (Column B) | | Charge-offs | Recoveries | ____________________ ____________________ | Calendar year-to-date | _________________________________________ Memoranda Dollar Amounts in Thousands | RIAD Bil Mil Thou | RIAD Bil Mil Thou | ______________________________________________________________________________ ____________________ ____________________ 1-3. Not applicable | ////////////////// | ////////////////// | 4. Loans to finance commercial real estate, construction, and land | ////////////////// | ////////////////// | development activities (not secured by real estate) included in | ////////////////// | ////////////////// | Schedule RI-B, part I, items 4 and 7, above............................... | 5409 0 | 5410 51 | 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 450 | 3583 148 | 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.c.(1) (2) All other loans secured by 1-4 family residential properties....... | 5413 866 | 5414 263 | M.5.c.(2) d. Secured by multifamily (5 or more) residential properties.............. | 3588 0 | 3589 4 | M.5.d. e. Secured by nonfarm nonresidential properties........................... | 3590 5 | 3591 2,044 | M.5.e. ___________________________________________ Part II. Changes in Allowance for Loan and Lease Losses _____________________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | ______________________________________________________________________________ ____________________ ____________________ 1. Balance originally reported in the December 31, 1995, Reports of Condition and Income.......... | 3124 290,221 | 1. 2. Recoveries (must equal part I, item 9, column B above)......................................... | 4605 10,272 | 2. 3. LESS: Charge-offs (must equal part I, item 9, column A above).................................. | 4635 46,095 | 3. 4. Provision for loan and lease losses (must equal Schedule RI, item 4.a)......................... | 4230 0 | 4. 5. Adjustments* (see instructions for this schedule).............................................. | 4815 0 | 5. 6. Balance end of current period (sum of items 1 through 5) (must equal Schedule RC, | ////////////////// | item 4.b)...................................................................................... | 3123 254,398 | 6. ______________________ ____________ *Describe on Schedule RI-E--Explanations. Schedule RI-C--Applicable Income Taxes by Taxing Authority Schedule RI-C is to be reported with the December Report of Income. __________ | I489 | (- ____________ ________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | ___________________________________________________________________________________________________ ____________________ 1. Federal ....................................................................................... | 4780 N/A | 1. 2. State and local................................................................................ | 4790 N/A | 2. 3. Foreign ....................................................................................... | 4795 N/A | 3. 4. Total (sum of items 1 through 3) (must equal sum of Schedule RI, items 9 and 11.b) ............ | 4770 N/A | 4. ____________________________ 5. Deferred portion of item 4 ........................................ | RIAD 4772 | N/A | ////////////////// | 5. __________________________________________________
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RI-6 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ 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 | (- ______ ________ | Year-to-date | ______ ______________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | _________________________________________________________________________________________________ ____________________ 1. Interest income and expense booked at foreign offices, Edge and Agreement subsidiaries, | ////////////////// | and IBFs: | ////////////////// | a. Interest income booked ................................................................... | 4837 N/A | 1.a. b. Interest expense booked .................................................................. | 4838 N/A | 1.b. c. Net interest income booked at foreign offices, Edge and Agreement subsidiaries, and | ////////////////// | IBFs (item 1.a minus 1.b) ................................................................ | 4839 N/A | 1.c. 2. Adjustments for booking location of international operations: | ////////////////// | a. Net interest income attributable to international operations booked at domestic offices .. | 4840 N/A | 2.a. b. Net interest income attributable to domestic business booked at foreign offices .......... | 4841 N/A | 2.b. c. Net booking location adjustment (item 2.a minus 2.b) ..................................... | 4842 N/A | 2.c. 3. Noninterest income and expense attributable to international operations: | ////////////////// | a. Noninterest income attributable to international operations .............................. | 4097 N/A | 3.a. b. Provision for loan and lease losses attributable to international operations ............. | 4235 N/A | 3.b. c. Other noninterest expense attributable to international operations ....................... | 4239 N/A | 3.c. d. Net noninterest income (expense) attributable to international operations (item 3.a minus | ////////////////// | 3.b and 3.c) ............................................................................. | 4843 N/A | 3.d. 4. Estimated pretax income attributable to international operations before capital allocation | ////////////////// | adjustment (sum of items 1.c, 2.c, and 3.d) ................................................. | 4844 N/A | 4. 5. Adjustment to pretax income for internal allocations to international operations to reflect | ////////////////// | the effects of equity capital on overall bank funding costs ................................. | 4845 N/A | 5. 6. Estimated pretax income attributable to international operations after capital allocation | ////////////////// | adjustment (sum of items 4 and 5) ........................................................... | 4846 N/A | 6. 7. Income taxes attributable to income from international operations as estimated in item 6 .... | 4797 N/A | 7. 8. Estimated net income attributable to international operations (item 6 minus 7) .............. | 4341 N/A | 8. ______________________ Memoranda ______________________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | _________________________________________________________________________________________________ ____________________ 1. Intracompany interest income included in item 1.a above ..................................... | 4847 N/A | M.1. 2. Intracompany interest expense included in item 1.b above .................................... | 4848 N/A | M.2. ______________________ Part II. Supplementary Details on Income from International Operations Required by the Departments of Commerce and Treasury for Purposes of the U.S. International Accounts and the U.S. National Income and Product Accounts ________________ | Year-to-date | ______ ______________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | _________________________________________________________________________________________________ ____________________ 1. Interest income booked at IBFs .............................................................. | 4849 N/A | 1. 2. Interest expense booked at IBFs ............................................................. | 4850 N/A | 2. 3. Noninterest income attributable to international operations booked at domestic offices | ////////////////// | (excluding IBFs): | ////////////////// | a. Gains (losses) and extraordinary items ................................................... | 5491 N/A | 3.a. b. Fees and other noninterest income ........................................................ | 5492 N/A | 3.b. 4. Provision for loan and lease losses attributable to international operations booked at | ////////////////// | domestic offices (excluding IBFs) ........................................................... | 4852 N/A | 4. 5. Other noninterest expense attributable to international operations booked at domestic offices | ////////////////// | (excluding IBFs) ............................................................................ | 4853 N/A | 5. ______________________
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RI-7 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ 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 | (- ______ ________ | Year-to-date | ______ ______________ Dollar Amounts in Thousands | RIAD Bil Mil Thou | __________________________________________________________________________________________________ ____________________ 1. All other noninterest income (from Schedule RI, item 5.f.(2)) | ////////////////// | Report amounts that exceed 10% of Schedule RI, item 5.f.(2): | ////////////////// | a. Net gains on other real estate owned ..................................................... | 5415 5,813 | 1.a. b. Net gains on sales of loans .............................................................. | 5416 0 | 1.b. c. Net gains on sales of premises and fixed assets .......................................... | 5417 0 | 1.c. Itemize and describe the three largest other amounts that exceed 10% of Schedule RI, | ////////////////// | item 5.f.(2): | ////////////////// | _____________ CHECK PRINTING INCOME d. | TEXT 4461 |______________________________________________________________________________| 4461 5,121 | 1.d. ___________ INTERBANK CONTRACT SERVICES e. | TEXT 4462 |______________________________________________________________________________| 4462 5,480 | 1.e. ___________ f. | TEXT 4463 |______________________________________________________________________________| 4463 | 1.f. _____________ 2. Other noninterest expense (from Schedule RI, item 7.c): | ////////////////// | a. Amortization expense of intangible assets ................................................ | 4531 22,682 | 2.a. Report amounts that exceed 10% of Schedule RI, item 7.c: | ////////////////// | b. Net losses on other real estate owned .................................................... | 5418 0 | 2.b. c. Net losses on sales of loans ............................................................. | 5419 0 | 2.c. d. Net losses on sales of premises and fixed assets ......................................... | 5420 0 | 2.d. Itemize and describe the three largest other amounts that exceed 10% of Schedule RI, | ////////////////// | item 7.c: | ////////////////// | _____________ e. | TEXT 4464 |______________________________________________________________________________| 4464 | 2.e. ___________ f. | TEXT 4467 |______________________________________________________________________________| 4467 | 2.f. ___________ g. | TEXT 4468 |______________________________________________________________________________| 4468 | 2.g. _____________ 3. Extraordinary items and other adjustments (from Schedule RI, item 11.a) and applicable | ////////////////// | income tax effect (from Schedule RI, item 11.b) (itemize and describe all extraordinary | ////////////////// | items and other adjustments): | ////////////////// | _____________ a. (1) | TEXT 4469 |__________________________________________________________________________| 4469 | 3.a.(1) _____________ (2) Applicable income tax effect | RIAD 4486 | | ////////////////// | 3.a.(2) _____________ ____________________________ b. (1) | TEXT 4487 |__________________________________________________________________________| 4487 | 3.b.(1) _____________ (2) Applicable income tax effect | RIAD 4488 | | ////////////////// | 3.b.(2) _____________ ____________________________ c. (1) | TEXT 4489 |__________________________________________________________________________| 4489 | 3.c.(1) _____________ (2) Applicable income tax effect | RIAD 4491 | | ////////////////// | 3.c.(2) ____________________________ 4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A, item 2) | ////////////////// | (itemize and describe all adjustments): | ////////////////// | _____________ a. | TEXT 4492 |______________________________________________________________________________| 4492 | 4.a. ___________ b. | TEXT 4493 |______________________________________________________________________________| 4493 | 4.b. _____________ 5. Cumulative effect of changes in accounting principles from prior years | ////////////////// | (from Schedule RI-A, item 9) (itemize and describe all changes in accounting principles): | ////////////////// | _____________ a. | TEXT 4494 |______________________________________________________________________________| 4494 | 5.a. ___________ b. | TEXT 4495 |______________________________________________________________________________| 4495 | 5.b. _____________ 6. Corrections of material accounting errors from prior years (from Schedule RI-A, item 10) | ////////////////// | (itemize and describe all corrections): | ////////////////// | _____________ a. | TEXT 4496 |______________________________________________________________________________| 4496 | 6.a. ____________ b. | TEXT 4497 |______________________________________________________________________________| 4497 | 6.b. _________________________________________________________________________________________________________________
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RI-8 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RI-E--Continued ________________ | Year-to-date | ---------------------- Dollar Amounts in Thousands | RIAD Bil Mil Thou | __________________________________________________________________________________________________ ____________________ 7. Other transactions with parent holding company (from Schedule RI-A, item 13) | ////////////////// | (itemize and describe all such transactions): | ////////////////// | _____________ a. | TEXT 4498 |______________________________________________________________________________| 4498 | 7.a. ___________ b. | TEXT 4499 |______________________________________________________________________________| 4499 | 7.b. _____________ 8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, part II, item 5) | ////////////////// | (itemize and describe all adjustments): | ////////////////// | _____________ a. | TEXT 4521 |______________________________________________________________________________| 4521 | 8.a. ___________ b. | TEXT 4522 |______________________________________________________________________________| 4522 | 8.b. _____________ --------------------- 9. Other explanations (the space below is provided for the bank to briefly describe, at its | I498 | I499 | (- option, any other significant items affecting the Report of Income): ______________________ ___ No comment | | (RIAD 4769) ___ Other explanations (please type or print clearly): (TEXT 4769)
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-1 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for June 30, 1996 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC--Balance Sheet __________ | C400 | (- ____________ ________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | _________________________________________________________________________________________________ ____________________ ASSETS | ////////////////// | 1. Cash and balances due from depository institutions (from Schedule RC-A): | ////////////////// | a. Noninterest-bearing balances and currency and coin(1) ................................... | 0081 2,008,330 | 1.a. b. Interest-bearing balances(2) ............................................................ | 0071 5,108 | 1.b. 2. Securities: | ////////////////// | a. Held-to-maturity securities (from Schedule RC-B, column A) .............................. | 1754 592,121 | 2.a. b. Available-for-sale securities (from Schedule RC-B, column D) ............................ | 1773 3,158,919 | 2.b. 3. Federal funds sold and securities purchased under agreements to resell in domestic offices | ////////////////// | of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | ////////////////// | a. Federal funds sold ...................................................................... | 0276 1,774,300 | 3.a. b. Securities purchased under agreements to resell ......................................... | 0277 14,896 | 3.b. 4. Loans and lease financing receivables: ____________________________| ////////////////// | a. Loans and leases, net of unearned income (from Schedule RC-C) | RCFD 2122 | 12,062,066 | ////////////////// | 4.a. b. LESS: Allowance for loan and lease losses ................... | RCFD 3123 | 254,398 | ////////////////// | 4.b. c. LESS: Allocated transfer risk reserve ....................... | RCFD 3128 | 0 | ////////////////// | 4.c. ____________________________ d. Loans and leases, net of unearned income, | ////////////////// | allowance, and reserve (item 4.a minus 4.b and 4.c) ..................................... | 2125 11,807,668 | 4.d. 5. Trading assets (from Schedule RC-D)......................................................... | 3545 26,501 | 5. 6. Premises and fixed assets (including capitalized leases) ................................... | 2145 555,173 | 6. 7. Other real estate owned (from Schedule RC-M) ............................................... | 2150 13,643 | 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 10,277 | 9. 10. Intangible assets (from Schedule RC-M) ..................................................... | 2143 442,399 | 10. 11. Other assets (from Schedule RC-F) .......................................................... | 2160 398,765 | 11. 12. Total assets (sum of items 1 through 11) ................................................... | 2170 20,808,100 | 12. ______________________ ____________ (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held in trading accounts.
11
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-2 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC--Continued ___________________________ Dollar Amounts in Thousands | ///////// Bil Mil Thou | _______________________________________________________________________________________________ _________________________ LIABILITIES | /////////////////////// | 13. Deposits: | /////////////////////// | a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, | /////////////////////// | part I) ............................................................................... | RCON 2200 15,341,444 | 13.a. ____________________________ (1) Noninterest-bearing(1) ................................ | RCON 6631 6,104,891 | /////////////////////// | 13.a.(1) (2) Interest-bearing ...................................... | RCON 6636 9,236,553 | /////////////////////// | 13.a.(2) ____________________________ b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, | /////////////////////// | part II) .............................................................................. | RCFN 2200 320,667 | 13.b. ____________________________ (1) Noninterest-bearing ................................... | RCFN 6631 0 | /////////////////////// | 13.b.(1) (2) Interest-bearing ...................................... | RCFN 6636 320,667 | /////////////////////// | 13.b.(2) ____________________________ 14. Federal funds purchased and securities sold under agreements to repurchase in domestic | /////////////////////// | offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | /////////////////////// | a. Federal funds purchased ............................................................... | RCFD 0278 261,294 | 14.a. b. Securities sold under agreements to repurchase ........................................ | RCFD 0279 950,307 | 14.b. 15. a. Demand notes issued to the U.S. Treasury .............................................. | RCON 2840 1,565,030 | 15.a. b. Trading liabilities (from Schedule RC-D) .............................................. | RCFD 3548 15,672 | 15.b. 16. Other borrowed money: | /////////////////////// | a. With a remaining maturity of one year or less ......................................... | RCFD 2332 14,797 | 16.a. b. With a remaining maturity of more than one year ....................................... | RCFD 2333 96 | 16.b. 17. Mortgage indebtedness and obligations under capitalized leases ........................... | RCFD 2910 26,820 | 17. 18. Bank's liability on acceptances executed and outstanding ................................. | RCFD 2920 10,277 | 18. 19. Subordinated notes and debentures ........................................................ | RCFD 3200 345,000 | 19. 20. Other liabilities (from Schedule RC-G) ................................................... | RCFD 2930 296,931 | 20. 21. Total liabilities (sum of items 13 through 20) ........................................... | RCFD 2948 19,148,335 | 21. | /////////////////////// | 22. Limited-life preferred stock and related surplus ......................................... | RCFD 3282 0 | 22. EQUITY CAPITAL | /////////////////////// | 23. Perpetual preferred stock and related surplus ............................................ | RCFD 3838 0 | 23. 24. Common stock ............................................................................. | RCFD 3230 612,893 | 24. 25. Surplus (exclude all surplus related to preferred stock).................................. | RCFD 3839 924,675 | 25. 26. a. Undivided profits and capital reserves ................................................ | RCFD 3632 206,260 | 26.a. b. Net unrealized holding gains (losses) on available-for-sale securities ................ | RCFD 8434 (84,063)| 26.b. 27. Cumulative foreign currency translation adjustments ...................................... | RCFD 3284 0 | 27. 28. Total equity capital (sum of items 23 through 27) ........................................ | RCFD 3210 1,659,765 | 28. 29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, | /////////////////////// | and 28) .................................................................................. | RCFD 3300 20,808,100 | 29. ___________________________ Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the Number most comprehensive level of auditing work performed for the bank by independent external __________________ auditors as of any date during 1995 .............................................................. | RCFD 6724 N/A | M.1. __________________ 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 external submits a report on the consolidated holding company auditors (but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work) 3 = Directors' examination of the bank conducted in 8 = No external audit work accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) ____________ (1) Includes total demand deposits and noninterest-bearing time and savings deposits.
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-3 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-A--Cash and Balances Due From Depository Institutions Exclude assets held for trading. ________ | C405 | (- _________________________________ ________ | (Column A) | (Column B) | | Consolidated | Domestic | | Bank | Offices | ___________________________________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou | _____________________________________________________________________________ ____________________ ____________________ 1. Cash items in process of collection, unposted debits, and currency and | ////////////////// | ////////////////// | coin .................................................................... | 0022 1,751,651 | ////////////////// | 1. a. Cash items in process of collection and unposted debits .............. | ////////////////// | 0020 1,475,135 | 1.a. b. Currency and coin .................................................... | ////////////////// | 0080 276,516 | 1.b. 2. Balances due from depository institutions in the U.S. ................... | ////////////////// | 0082 41,717 | 2. a. U.S. branches and agencies of foreign banks (including their IBFs) ... | 0083 5,008 | ////////////////// | 2.a. b. Other commercial banks in the U.S. and other depository institutions | ////////////////// | ////////////////// | in the U.S. (including their IBFs) ................................... | 0085 36,709 | ////////////////// | 2.b. 3. Balances due from banks in foreign countries and foreign central banks .. | ////////////////// | 0070 10,483 | 3. a. Foreign branches of other U.S. banks ................................. | 0073 16 | ////////////////// | 3.a. b. Other banks in foreign countries and foreign central banks ........... | 0074 10,472 | ////////////////// | 3.b. 4. Balances due from Federal Reserve Banks ................................. | 0090 209,582 | 0090 209,582 | 4. 5. Total (sum of items 1 through 4) (total of column A must equal | ////////////////// | ////////////////// | Schedule RC, sum of items 1.a and 1.b) .................................. | 0010 2,013,438 | 0010 2,013,433 | 5. ___________________________________________ ______________________ Memorandum Dollar Amounts in Thousands |RCON Bil Mil Thou| __________________________________________________________________________________________________ ____________________ 1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item 2, | ////////////////// | column B above) .............................................................................. | 0050 36,609 | M.1. ______________________ Schedule RC-B--Securities Exclude assets held for trading. __________ | C410 | (- ___________________________________________________________________________ ________ | Held-to-maturity | Available-for-sale | _________________________________________ _________________________________________ | (Column A) | (Column B) | (Column C) | (Column D) | | Amortized Cost | Fair Value | Amortized Cost | Fair Value(1) | ____________________ ____________________ ____________________ ____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | ______________________________________ ____________________ ____________________ ____________________ ____________________ 1. U.S. Treasury securities ......... | 0211 17,973 | 0213 17,950 | 1286 602,162 | 1287 581,488 | 1. 2. U.S. Government agency | ////////////////// | ////////////////// | ////////////////// | ////////////////// | and corporation obligations | ////////////////// | ////////////////// | ////////////////// | ////////////////// | (exclude mortgage-backed | ////////////////// | ////////////////// | ////////////////// | ////////////////// | securities): | ////////////////// | ////////////////// | ////////////////// | ////////////////// | a. Issued by U.S. Govern- | ////////////////// | ////////////////// | ////////////////// | ////////////////// | ment agencies(2) .............. | 1289 0 | 1290 0 | 1291 0 | 1293 0 | 2.a. b. Issued by U.S. | ////////////////// | ////////////////// | ////////////////// | ////////////////// | Government-sponsored | ////////////////// | ////////////////// | ////////////////// | ////////////////// | agencies(3) ................... | 1294 36 | 1295 20 | 1297 0 | 1298 0 | 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 National Mortgage Association, the Financing Corporation, Resolution Funding Corporation, the Student Loan Marketing Association, and the Tennessee Valley Authority.
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-4 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-B--Continued ___________________________________________________________________________ ________ | Held-to-maturity | Available-for-sale | _________________________________________ _________________________________________ | (Column A) | (Column B) | (Column C) | (Column D) | | Amortized Cost | Fair Value | Amortized Cost | Fair Value(1) | ____________________ ____________________ ____________________ ____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | ______________________________________ ____________________ ____________________ ____________________ ____________________ 3. Securities issued by states | ////////////////// | ////////////////// | ////////////////// | ////////////////// | and political subdivisions | ////////////////// | ////////////////// | ////////////////// | ////////////////// | in the U.S.: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | a. General obligations ........... | 1676 259 | 1677 259 | 1678 0 | 1679 0 | 3.a. b. Revenue obligations ........... | 1681 40 | 1686 49 | 1690 0 | 1691 0 | 3.b. c. Industrial development | ////////////////// | ////////////////// | ////////////////// | ////////////////// | and similar obligations ....... | 1694 0 | 1695 0 | 1696 0 | 1697 0 | 3.c. 4. Mortgage-backed | ////////////////// | ////////////////// | ////////////////// | ////////////////// | securities (MBS): | ////////////////// | ////////////////// | ////////////////// | ////////////////// | a. Pass-through securities: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | (1) Guaranteed by | ////////////////// | ////////////////// | ////////////////// | ////////////////// | GNMA ...................... | 1698 0 | 1699 0 | 1701 1,279,661 | 1702 1,273,466 | 4.a.(1) (2) Issued by FNMA | ////////////////// | ////////////////// | ////////////////// | ////////////////// | and FHLMC ................. | 1703 573,813 | 1705 563,957 | 1706 1,285,738 | 1707 1,254,570 | 4.a.(2) (3) Other pass-through | ////////////////// | ////////////////// | ////////////////// | ////////////////// | securities ................ | 1709 0 | 1710 0 | 1711 0 | 1713 0 | 4.a.(3) b. Other mortgage-backed | ////////////////// | ////////////////// | ////////////////// | ////////////////// | securities (include CMOs, | ////////////////// | ////////////////// | ////////////////// | ////////////////// | REMICs, and stripped | ////////////////// | ////////////////// | ////////////////// | ////////////////// | MBS): | ////////////////// | ////////////////// | ////////////////// | ////////////////// | (1) Issued or guaranteed | ////////////////// | ////////////////// | ////////////////// | ////////////////// | by FNMA, FHLMC, | ////////////////// | ////////////////// | ////////////////// | ////////////////// | or GNMA ................... | 1714 0 | 1715 0 | 1716 0 | 1717 0 | 4.b.(1) (2) Collateralized | ////////////////// | ////////////////// | ////////////////// | ////////////////// | by MBS issued or | ////////////////// | ////////////////// | ////////////////// | ////////////////// | guaranteed by FNMA, | ////////////////// | ////////////////// | ////////////////// | ////////////////// | FHLMC, or GNMA ............ | 1718 0 | 1719 0 | 1731 3,230 | 1732 3,268 | 4.b.(2) (3) All other mortgage- | ////////////////// | ////////////////// | ////////////////// | ////////////////// | backed securities ......... | 1733 0 | 1734 0 | 1735 0 | 1736 0 | 4.b.(3) 5. Other debt securities: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | a. Other domestic debt | ////////////////// | ////////////////// | ////////////////// | ////////////////// | securities .................... | 1737 0 | 1738 0 | 1739 0 | 1741 0 | 5.a. b. Foreign debt | ////////////////// | ////////////////// | ////////////////// | ////////////////// | securities .................... | 1742 0 | 1743 0 | 1744 0 | 1746 0 | 5.b. 6. Equity securities: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | a. Investments in mutual | ////////////////// | ////////////////// | ////////////////// | ////////////////// | funds ......................... | ////////////////// | ////////////////// | 1747 0 | 1748 0 | 6.a. b. Other equity securities | ////////////////// | ////////////////// | ////////////////// | ////////////////// | with readily determin- | ////////////////// | ////////////////// | ////////////////// | ////////////////// | able fair values .............. | ////////////////// | ////////////////// | 1749 0 | 1751 0 | 6.b. c. All other equity | ////////////////// | ////////////////// | ////////////////// | ////////////////// | securities(1) ................. | ////////////////// | ////////////////// | 1752 46,127 | 1753 46,127 | 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 592,121 | 1771 582,235 | 1772 3,216,918 | 1773 3,158,919 | 7. _____________________________________________________________________________________ _____________ (1) Includes equity securities without readily determinable fair values at historical cost in item 6.c, column D.
14
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-5 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-B--Continued ___________ Memoranda | C412 | (- ___________ _________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | ___________________________________________________________________________________________________ ____________________ 1. Pledged securities(2) ......................................................................... | 0416 2,237,322 | 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 18,265 | M.2.a.(1) (2) Over three months through 12 months .................................................... | 0344 198,548 | M.2.a.(2) (3) Over one year through five years ....................................................... | 0345 1,045,308 | M.2.a.(3) (4) Over five years ........................................................................ | 0346 2,437,988 | M.2.a.(4) (5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1) through 2.a.(4)) ..... | 0347 3,700,109 | M.2.a.(5) b. Floating rate debt securities with a repricing frequency of: | ////////////////// | (1) Quarterly or more frequently ........................................................... | 4544 4,804 | M.2.b.(1) (2) Annually or more frequently, but less frequently than quarterly ........................ | 4545 0 | M.2.b.(2) (3) Every five years or more frequently, but less frequently than annually ................. | 4551 0 | M.2.b.(3) (4) Less frequently than every five years .................................................. | 4552 0 | M.2.b.(4) (5) Total floating rate debt securities (sum of Memorandum items 2.b.(1) through 2.b.(4)) .. | 4553 4,804 | M.2.b.(5) c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal total | ////////////////// | debt securities from Schedule RC-B, sum of items 1 through 5, columns A and D, minus | ////////////////// | nonaccrual debt securities included in Schedule RC-N, item 9, column C) .................... | 0393 3,704,913 | 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 0 | M.6. 7. Amortized cost of held-to-maturity securities sold or transferred to available-for-sale or | ////////////////// | trading securities during the calendar year-to-date (report the amortized cost at date of sale | ////////////////// | or transfer) .................................................................................. | 1778 0 | M.7. 8. High-risk mortgage securities (included in the held-to-maturity and available-for-sale | ////////////////// | accounts in Schedule RC-B, item 4.b): | ////////////////// | a. Amortized cost ............................................................................. | 8780 0 | M.8.a. b. Fair value ................................................................................. | 8781 0 | M.8.b. 9. Structured notes (included in the held-to-maturity and available-for-sale accounts in | ////////////////// | Schedule RC-B, items 2, 3, and 5): | ////////////////// | a. Amortized cost ............................................................................. | 8782 0 | M.9.a. b. Fair value ................................................................................. | 8783 0 | M.9.b. ______________________ _____________ (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.
15
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-6 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-C--Loans and Lease Financing Receivables Part I. Loans and Leases __________ Do not deduct the allowance for loan and lease losses from amounts | C415 | (- reported in this schedule. Report total loans and leases, net of unearned _________________________________ ________ income. Exclude assets held for trading. | (Column A) | (Column B) | | Consolidated | Domestic | | Bank | Offices | ____________________ ____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou | _____________________________________________________________________________ ____________________ ____________________ 1. Loans secured by real estate ........................................... | 1410 2,547,770 | ////////////////// | 1. a. Construction and land development ................................... | ////////////////// | 1415 527,540 | 1.a. b. Secured by farmland (including farm residential and other | ////////////////// | ////////////////// | improvements) ....................................................... | ////////////////// | 1420 17,748 | 1.b. c. Secured by 1-4 family residential properties: | ////////////////// | ////////////////// | (1) Revolving, open-end loans secured by 1-4 family residential | ////////////////// | ////////////////// | properties and extended under lines of credit ................... | ////////////////// | 1797 0 | 1.c.(1) (2) All other loans secured by 1-4 family residential properties: | ////////////////// | ////////////////// | (a) Secured by first liens ...................................... | ////////////////// | 5367 784,981 | 1.c.(2)(a) (b) Secured by junior liens ..................................... | ////////////////// | 5368 291,860 | 1.c.(2)(b) d. Secured by multifamily (5 or more) residential properties ........... | ////////////////// | 1460 155,522 | 1.d. e. Secured by nonfarm nonresidential properties ........................ | ////////////////// | 1480 770,119 | 1.e. 2. Loans to depository institutions: | ////////////////// | ////////////////// | a. To commercial banks in the U.S. ..................................... | ////////////////// | 1505 1,840 | 2.a. (1) To U.S. branches and agencies of foreign banks .................. | 1506 0 | ////////////////// | 2.a.(1) (2) To other commercial banks in the U.S. ........................... | 1507 1,840 | ////////////////// | 2.a.(2) b. To other depository institutions in the U.S. ........................ | 1517 10 | 1517 10 | 2.b. c. To banks in foreign countries ....................................... | ////////////////// | 1510 27,894 | 2.c. (1) To foreign branches of other U.S. banks ......................... | 1513 0 | ////////////////// | 2.c.(1) (2) To other banks in foreign countries ............................. | 1516 30,894 | ////////////////// | 2.c.(2) 3. Loans to finance agricultural production and other loans to farmers .... | 1590 63,053 | 1590 63,053 | 3. 4. Commercial and industrial loans: | ////////////////// | ////////////////// | a. To U.S. addressees (domicile) ....................................... | 1763 5,508,687 | 1763 5,472,190 | 4.a. b. To non-U.S. addressees (domicile) ................................... | 1764 177,066 | 1764 111,834 | 4.b. 5. Acceptances of other banks: | ////////////////// | ////////////////// | a. Of U.S. banks ....................................................... | 1756 0 | 1756 0 | 5.a. b. Of foreign banks .................................................... | 1757 0 | 1757 0 | 5.b. 6. Loans to individuals for household, family, and other personal | ////////////////// | ////////////////// | expenditures (i.e., consumer loans) (includes purchased paper) ......... | ////////////////// | 1975 2,346,447 | 6. a. Credit cards and related plans (includes check credit and other | ////////////////// | ////////////////// | revolving credit plans) ............................................. | 2008 127,685 | ////////////////// | 6.a. b. Other (includes single payment, installment, and all student loans) . | 2011 2,218,762 | ////////////////// | 6.b. 7. Loans to foreign governments and official institutions (including | ////////////////// | ////////////////// | foreign central banks) ................................................. | 2081 153,840 | 2081 148,417 | 7. 8. Obligations (other than securities and leases) of states and political | ////////////////// | ////////////////// | subdivisions in the U.S. (includes nonrated industrial development | ////////////////// | ////////////////// | obligations) ........................................................... | 2107 17,446 | 2107 17,446 | 8. 9. Other loans ............................................................ | 1563 1,064,591 | ////////////////// | 9. a. Loans for purchasing or carrying securities (secured and unsecured) . | ////////////////// | 1545 45,371 | 9.a. b. All other loans (exclude consumer loans) ............................ | ////////////////// | 1564 1,019,220 | 9.b. 10. Lease financing receivables (net of unearned income) ................... | ////////////////// | 2165 150,422 | 10. a. Of U.S. addressees (domicile) ....................................... | 2182 135,853 | ////////////////// | 10.a. b. Of non-U.S. addressees (domicile) ................................... | 2183 14,569 | ////////////////// | 10.b. 11. LESS: Any unearned income on loans reflected in items 1-9 above ........ | 2123 0 | 2123 0 | 11. 12. Total loans and leases, net of unearned income (sum of items 1 through | ////////////////// | ////////////////// | 10 minus item 11) (total of column A must equal Schedule RC, item 4.a) . | 2122 12,062,066 | 2122 11,951,914 | 12. ___________________________________________
16
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-7 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-C--Continued Part I. Continued ___________________________________________ | (Column A) | (Column B) | | Consolidated | Domestic | Memoranda | Bank | Offices | ____________________ ____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou | _____________________________________________________________________________ ____________________ ____________________ 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.a.(1) (2) To non-U.S. addressees (domicile) ............................... | 1689 0 | M.2.a.(2) b. All other loans and all lease financing receivables (exclude loans to | ////////////////// | individuals for household, family, and other personal expenditures) . | 8691 219,523 | 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 412,544 | M.3.a.(1) (2) Over three months through 12 months ............................. | 0349 618,804 | M.3.a.(2) (3) Over one year through five years ................................ | 0356 2,248,224 | M.3.a.(3) (4) Over five years ................................................. | 0357 1,421,160 | M.3.a.(4) (5) Total fixed rate loans and leases (sum of | ////////////////// | Memorandum items 3.a.(1) through 3.a.(4)) ....................... | 0358 4,700,732 | M.3.a.(5) b. Floating rate loans with a repricing frequency of: | ////////////////// | (1) Quarterly or more frequently .................................... | 4554 6,559,414 | M.3.b.(1) (2) Annually or more frequently, but less frequently than quarterly . | 4555 519,123 | M.3.b.(2) (3) Every five years or more frequently, but less frequently than | ////////////////// | annually ........................................................ | 4561 118,330 | M.3.b.(3) (4) Less frequently than every five years ........................... | 4564 31,362 | M.3.b.(4) (5) Total floating rate loans (sum of Memorandum items 3.b.(1) | ////////////////// | through 3.b.(4)) ................................................ | 4567 7,228,229 | M.3.b.(5) c. Total loans and leases (sum of Memorandum items 3.a.(5) and | ////////////////// | 3.b.(5)) (must equal the sum of total loans and leases, net, from | ////////////////// | Schedule RC-C, part I, item 12, plus unearned income from | ////////////////// | Schedule RC-C, part I, item 11, minus total nonaccrual loans and | ////////////////// | leases from Schedule RC-N, sum of items 1 through 8, column C) ...... | 1479 11,928,961 | M.3.c. d. Floating rate loans with a remaining maturity of one year or less | ////////////////// | (included in Memorandum items 3.b.(1) through 3.b.(4) above) ........ | A246 2,497,717 | 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 324,581 | M.4. 5. Loans and leases held for sale (included in Schedule RC-C, part I, | ////////////////// | above) ................................................................. | 5369 263,751 | 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 | ////////////////// | RCON Bil Mil Thou | ____________________ 1.c.(2)(a), column B, page RC-6) ....................................... | ////////////////// | 5370 207,766 | M.6. ___________________________________________ _____________ (1) Memorandum item 3 is not applicable to savings banks that must complete supplemental Schedule RC-J. (2) Exclude loans secured by real estate that are included in Schedule RC-C, part I, item 1, column A.
17
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-7a City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-C--Continued Part II. Loans to Small Businesses and Small Farms Schedule RC-D, Part II is to be reported only with the June Report of Condition. Report the number and amount currently outstanding as of June 30 of business loans with "original amounts" of $1,000,000 or less and farm loans with "original amounts" of $500,000 or less. The following guidelines should be used to determine the "original amount" of a loan: (1) For loans drawn down under lines of credit or loan commitments, the "original amount" of the loan is the size of the line of credit or loan commitment when the line of credit or loan commitment was most recently approved, extended, or renewed prior to the report date. However, if the amount currently outstanding as of the report date exceeds this size, the "original amount" is the amount currently outstanding on the report date. (2) For loan participations and syndications, the "original amount" of the loan participation or syndication is the entire amount of the credit originated by the lead lender. (3) For all other loans, the "original amount" is the total amount of the loan at origination or the amount currently outstanding as of the report date, whichever is larger. Loans to Small Businesses 1. Indicate in the appropriate box at the right whether all or substantially all of the dollar volume of your bank's "Loans secured by nonfarm nonresidential properties" in domestic offices reported in Schedule RC-C, part I, item 1.e, column B, and all or substantially all of the dollar volume of your bank's "Commercial and industrial loans to U.S. addressees" in domestic offices reported in Schedule RC-C, part I, item 4.a, column B, have original amounts of $100,000 or __________ less (If your bank has no loans outstanding in both of these two loan categories, place an | C418 |(- "X" in the box marked "NO" and go to item 5; otherwise, see instructions for further ____________ __________ information.) ........................................................................... | RCON YES NO | _______________________ | 6999| |/// | X | 1. ________________________ If YES, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5. If NO and your bank has loans outstanding in either loan category, skip items 2.a and 2.b, complete items 3 and 4 below, and go to item 5. ______________________ 2. Report the total number of loans currently outstanding for each of the | Number of Loans | ______________________ following Schedule RC-C, part I, loan categories: | RCON |//////////// | ______ a. "Loans secured by nonfarm nonresidential properties" in domestic | ////////////////// | offices reported in Schedule RC-C, part I, item 1.e, column B ........... | 5562 N/A | 2.a. b. "Commercial and industrial loans to U.S. addressees" in domestic | ////////////////// | offices reported in Schedule RC-C, part I, item 4.a, column B ........... | 5563 N/A | 2.b. ______________________ __________________________________________ | (Column A) | (Column B) | | | Amount | | | Currently | | Number of Loans | Outstanding | ______________________|___________________| Dollar Amounts in Thousands | RCON |///////////// | RCON Bil Mil Thou| ___________________________________________________________________________________________ ____________________| 3. Number and amount currently outstanding of "Loans secured by nonfarm | /////////////////////////////////////// | nonresidential properties" in domestic offices reported in Schedule RC-C, | /////////////////////////////////////// | part I, item 1.e, column B (sum of items 3.a through 3.c must be less than | /////////////////////////////////////// | or equal to Schedule RC-C, part I, item 1.e, column B): | /////////////////////////////////////// | a. With original amounts of $100,000 or less ................................ | 5564 781 | 5565 29,325 | 3.a. b. With original amounts of more than $100,000 through $250,000 ............. | 5566 597 | 5567 67,240 | 3.b. c. With original amounts of more than $250,000 through $1,000,000 ........... | 5568 656 | 5569 218,689 | 3.c. 4. Number and amount currently outstanding of "Commercial and industrial | /////////////////////////////////////// | loans to U.S. addressees" in domestic offices reported in Schedule RC-C, | /////////////////////////////////////// | part I, item 4.a, column B (sum of items 4.a through 4.c must be less than | /////////////////////////////////////// | or equal to Schedule RC-C, part I, item 4.a, column B): | /////////////////////////////////////// | a. With original amounts of $100,000 or less ................................ | 5570 11,332 | 5571 231,918 | 4.a. b. With original amounts of more than $100,000 through $250,000 ............. | 5572 1,410 | 5573 156,428 | 4.b. c. With original amounts of more than $250,000 through $1,000,000 ........... | 5574 1,470 | 5575 417,209 | 4.c. ___________________________________________
17a
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-7b City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-C--Continued Part II. Continued Agricultural Loans to Small Farms 5. Indicate in the appropriate box at the right whether all or substantially all of the dollar volume of your bank's "Loans secured by farmland (including farm residential and other improvements)" in domestic offices reported in Schedule RC-C, part I, item 1.b, column B, and all or substantially all of the dollar volume of your bank's "Loans to finance agricultural production and other loans to farmers" in domestic offices reported in Schedule RC-C, part I, item 3, column B, have original amounts of $100,000 or less (If your bank has no loans outstanding in both of these two loan categories, place an "X" in the box marked "NO" and do not complete items 7 YES NO and 8; otherwise, see instructions for further information.) ...................... _____________________________ | 6860| |///| X | 5. ----------------------------- If YES, complete items 6.a and 6.b below and do not complete items 7 and 8. If NO and your bank has loans outstanding in either loan category, skip items 6.a and 6.b and complete items 7 and 8 below. 6. Report the total number of loans currently outstanding for each of the _____________________ following Schedule RC-C, part I, loan categories: | Number of Loans | _____________________ a. "Loans secured by farmland (including farm residential and other | RCON |//////////// | |______| improvements)" in domestic offices reported in Schedule RC-C, part I, | ////////////////// | item 1.b, column B ....................................................... | 5576 N/A | 6.a. b. "Loans to finance agricultural production and other loans to farmers" in | ////////////////// | domestic offices reported in Schedule RC-C, part I, item 3, column B ..... | 5577 N/A | 6.b. ______________________ ___________________________________________ | (Column A) | (Column B) | | Amount | | Currently | | Number of Loans | Outstanding | ___________________________________________ Dollar Amounts in Thousands | RCON |/////////////| RCON Bil Mil Thou | ________________________________________________________________________________________ ____________________| 7. Number and amount currently outstanding of "Loans secured by farmland | /////////////////////////////////////// | (including farm residential and other improvements)" in domestic offices | /////////////////////////////////////// | reported in Schedule RC-C, part I, item 1.b, column B (sum of items 7.a | /////////////////////////////////////// | through 7.c must be less than or equal to Schedule RC-C, part I, item 1.b, | /////////////////////////////////////// | column B): | /////////////////////////////////////// | a. With original amounts of $100,000 or less .............................. | 5578 19 | 5579 519 | 7.a. b. With original amounts of more than $100,000 through $250,000 ........... | 5580 13 | 5581 1,916 | 7.b. c. With original amounts of more than $250,000 through $500,000 ........... | 5582 9 | 5583 2,232 | 7.c. 8. Number and amount currently outstanding of "Loans to finance agricultural | /////////////////////////////////////// | production and other loans to farmers" in domestic offices reported in | /////////////////////////////////////// | Schedule RC-C, part I, item 3, column B (sum of items 8.a through 8.c | /////////////////////////////////////// | must be less than or equal to Schedule RC-C, part I, item 3, column B): | /////////////////////////////////////// | a. With original amounts of $100,000 or less .............................. | 5584 125 | 5585 3,621 | 8.a. b. With original amounts of more than $100,000 through $250,000 ........... | 5586 31 | 5587 3,701 | 8.b. c. With original amounts of more than $250,000 through $500,000 ........... | 5588 18 | 5589 3,427 | 8.c. ___________________________________________
17B
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-8 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ 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 | ///////// Bil Mil Thou | __________________________________________________________________________________________________ _________________________ ASSETS | /////////////////////// | 1. U.S. Treasury securities in domestic offices ................................................ | RCON 3531 1,987 | 1. 2. U.S. Government agency and corporation obligations in domestic offices (exclude mortgage- | /////////////////////// | backed securities) .......................................................................... | RCON 3532 255 | 2. 3. Securities issued by states and political subdivisions in the U.S. in domestic offices ...... | RCON 3533 3,477 | 3. 4. Mortgage-backed securities (MBS) in domestic offices: | /////////////////////// | a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA ..................... | RCON 3534 0 | 4.a. b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA | /////////////////////// | (include CMOs, REMICs, and stripped MBS) ................................................. | RCON 3535 0 | 4.b. c. All other mortgage-backed securities ..................................................... | RCON 3536 0 | 4.c. 5. Other debt securities in domestic offices ................................................... | RCON 3537 0 | 5. 6. Certificates of deposit in domestic offices ................................................. | RCON 3538 0 | 6. 7. Commercial paper in domestic offices ........................................................ | RCON 3539 0 | 7. 8. Bankers acceptances in domestic offices ..................................................... | RCON 3540 0 | 8. 9. Other trading assets in domestic offices .................................................... | RCON 3541 15 | 9. 10. Trading assets in foreign offices ........................................................... | RCFN 3542 0 | 10. 11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and equity | /////////////////////// | contracts: | /////////////////////// | a. In domestic offices ...................................................................... | RCON 3543 20,767 | 11.a. b. In foreign offices ....................................................................... | RCFN 3544 0 | 11.b. 12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5) ........... | RCFD 3545 26,501 | 12. ___________________________ ___________________________ | ///////// Bil Mil Thou | LIABILITIES _________________________ 13. Liability for short positions ............................................................... | RCFD 3546 0 | 13. 14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and equity | /////////////////////// | contracts ................................................................................... | RCFD 3547 15,672 | 14. 15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item 15.b) ...... | RCFD 3548 15,672 | 15. ___________________________
18
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-9 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-E--Deposit Liabilities Part I. Deposits in Domestic Offices __________ | C425 | (- ______________________________________________________ ________ | | Nontransaction | | Transaction Accounts | Accounts | _________________________________________ ____________________ | (Column A) | (Column B) | (Column C) | | Total transaction | Memo: Total | Total | | accounts (including| demand deposits | nontransaction | | total demand | (included in | accounts | | deposits) | column A) | (including MMDAs) | ____________________ ____________________ ____________________ Dollar Amounts in Thousands | RCON Bil Mil Thou | RCON Bil Mil Thou | RCON Bil Mil Thou | __________________________________________________________ ____________________ ____________________ ____________________ Deposits of: | ////////////////// | ////////////////// | ////////////////// | 1. Individuals, partnerships, and corporations .......... | 2201 5,560,725 | 2240 5,158,932 | 2346 9,011,941 | 1. 2. U.S. Government ...................................... | 2202 39,213 | 2280 39,202 | 2520 245 | 2. 3. States and political subdivisions in the U.S. ........ | 2203 110,890 | 2290 47,345 | 2530 161,786 | 3. 4. Commercial banks in the U.S. ......................... | 2206 341,092 | 2310 341,092 | 2550 0 | 4. 5. Other depository institutions in the U.S. ............ | 2207 14,561 | 2312 14,561 | 2349 0 | 5. 6. Banks in foreign countries ........................... | 2213 15,563 | 2320 15,563 | 2236 0 | 6. 7. Foreign governments and official institutions | ////////////////// | ////////////////// | ////////////////// | (including foreign central banks) .................... | 2216 1,413 | 2300 1,413 | 2377 0 | 7. 8. Certified and official checks ........................ | 2330 84,015 | 2330 84,015 | ////////////////// | 8. 9. Total (sum of items 1 through 8) (sum of | ////////////////// | ////////////////// | ////////////////// | columns A and C must equal Schedule RC, | ////////////////// | ////////////////// | ////////////////// | item 13.a) ........................................... | 2215 6,167,472 | 2210 5,702,123 | 2385 9,173,972 | 9. ________________________________________________________________ ______________________ Memoranda Dollar Amounts in Thousands | RCON Bil Mil Thou | ____________________________________________________________________________________________________ ____________________ 1. Selected components of total deposits (i.e., sum of item 9, columns A and C): | ////////////////// | a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts ......................... | 6835 783,090 | M.1.a. b. Total brokered deposits ..................................................................... | 2365 0 | M.1.b. c. Fully insured brokered deposits (included in Memorandum item 1.b above): | ////////////////// | (1) Issued in denominations of less than $100,000 ........................................... | 2343 0 | M.1.c.(1) (2) Issued either in denominations of $100,000 or in denominations greater than $100,000 | ////////////////// | and participated out by the broker in shares of $100,000 or less ........................ | 2344 0 | M.1.c.(2) d. Maturity data for brokered deposits: | ////////////////// | (1) Brokered deposits issued in denominations of less than $100,000 with a remaining | ////////////////// | maturity of one year or less (included in Memorandum item 1.c.(1) above) ................ | A243 0 | M.1.d.(1) (2) Brokered deposits issued in denominations of $100,000 or more with a remaining | ////////////////// | maturity of one year or less (included in Memorandum item 1.b above) .................... | A244 0 | M.1.d.(2) e. Preferred deposits (uninsured deposits of states and political subdivisions in the U.S. | ////////////////// | reported in item 3 above which are secured or collateralized as required under state law) ... | 5590 244,686 | M.1.e. 2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.d | ////////////////// | must equal item 9, column C above): | ////////////////// | a. Savings deposits: | ////////////////// | (1) Money market deposit accounts (MMDAs) ................................................... | 6810 2,725,506 | M.2.a.(1) (2) Other savings deposits (exclude MMDAs) .................................................. | 0352 2,929,288 | M.2.a.(2) b. Total time deposits of less than $100,000 ................................................... | 6648 2,654,818 | M.2.b. c. Time certificates of deposit of $100,000 or more ............................................ | 6645 849,161 | M.2.c. d. Open-account time deposits of $100,000 or more .............................................. | 6646 15,199 | M.2.d. 3. All NOW accounts (included in column A above) .................................................. | 2398 465,349 | M.3. 4. Not applicable ______________________
19
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-10 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-E--Continued Part I. Continued Memoranda (continued) ______________________ Dollar Amounts in Thousands | RCON Bil Mil Thou | ___________________________________________________________________________________________________ ____________________ 5. Maturity and repricing data for time deposit of less than $100,000 (sum of Memorandum | ////////////////// | items 5.a.(1) through 5.b.(3) must equal Memorandum item 2.b above):(1) | ////////////////// | a. Fixed rate time deposits of less than $100,000 with a remaining maturity of: | ////////////////// | (1) Three months or less ................................................................... | A225 796,609 | M.5.a.(1) (2) Over three months through 12 months .................................................... | A226 1,166,979 | M.5.a.(2) (3) Over one year........................................................................... | A227 619,730 | M.5.a.(3) b. Floating rate time deposits of less than $100,000 with a repricing frequency of: | ////////////////// | (1) Quarterly or more frequently ........................................................... | A228 23,928 | M.5.b.(1) (2) Annually or more frequently, but less frequently than quarterly ........................ | A229 33,700 | M.5.b.(2) (3) Less frequently than annually........................................................... | A230 13,872 | M.5.b.(3) c. Floating rate time deposits of less than $100,000 with a remaining maturity of one year | ////////////////// | or less (included in Memorandum items 5.b.(1) through 5.b.(3) above) ....................... | A231 57,503 | M.5.c. 6. Maturity and repricing data for time deposits of $100,000 or more (i.e., time certificates | ////////////////// | of deposit of $100,000 or more and open-account time deposits of $100,000 or more) | ////////////////// | (sum of Memorandum items 6.a.(1) through 6.b.(4) must equal the sum of Memorandum items 2.c. | ////////////////// | and 2.d above):(1) | ////////////////// | a. Fixed rate time deposits of $100,000 or more with a remaining maturity of: | ////////////////// | (1) Three months or less ................................................................... | A232 478,226 | M.6.a.(1) (2) Over three months through 12 months .................................................... | A233 303,697 | M.6.a.(2) (3) Over one year through five years ....................................................... | A234 68,142 | M.6.a.(3) (4) Over five years ........................................................................ | A235 861 | M.6.a.(4) b. Floating rate time deposits of $100,000 or more with a repricing frequency of: | ////////////////// | (1) Quarterly or more frequently ........................................................... | A236 10,723 | M.6.b.(1) (2) Annually or more frequently, but less frequently than quarterly ........................ | A237 2,711 | M.6.b.(2) (3) Every five years or more frequently, but less frequently than annually ................. | A238 0 | M.6.b.(3) (4) Less frequently than every five years .................................................. | A239 0 | M.6.b.(4) c. Floating rate time deposits of $100,000 or more with a remaining maturity of one year or | ////////////////// | less (included in Memorandum items 6.b.(1) through 6.b.(4) above) ....................... | A240 10,696 | M.6.c. ---------------------- _____________ (1) Memorandum items 5 and 6 are not applicable to savings banks that must complete supplemental Schedule RC-J.
20
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-11 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-E--Continued Part II. Deposits in Foreign Offices (including Edge and Agreement subsidiaries and IBFs) ____________________ Dollar Amounts in Thousands | RCFN Bil Mil Thou | ___________________________________________________________________________________________________ ____________________ Deposits of: | ////////////////// | 1. Individuals, partnerships, and corporations ................................................... | 2621 320,667 | 1. 2. U.S. banks (including IBFs and foreign branches of U.S. banks) ................................ | 2623 0 | 2. 3. Foreign banks (including U.S. branches and | ////////////////// | agencies of foreign banks, including their IBFs) .............................................. | 2625 0 | 3. 4. Foreign governments and official institutions (including foreign central banks) ............... | 2650 0 | 4. 5. Certified and official checks ................................................................. | 2330 0 | 5. 6. All other deposits ............................................................................ | 2668 0 | 6. 7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b) .......................... | 2200 320,667 | 7. ______________________ Memorandum ____________________ Dollar Amounts in Thousands | RCFN Bil Mil Thou | __________________________________________________________________________________________________ _________________________ 1. Time deposits with a remaining maturity of one year or less (included in Part II, | ////////////////// | item 7 above) ................................................................................. | A245 320,160 | M.1. ___________________________ Schedule RC-F--Other Assets __________ | C430 | (- _________________ ________ Dollar Amounts in Thousands | ////////// Bil Mil Thou | __________________________________________________________________________________________________ _________________________ 1. Income earned, not collected on loans ........................................................ | RCFD 2164 102,082 | 1. 2. Net deferred tax assets(1) ................................................................... | RCFD 2148 98,069 | 2. 3. Excess residential mortgage servicing fees receivable ........................................ | RCFD 5371 0 | 3. 4. Other (itemize amounts that exceed 25% of this item) ......................................... | RCFD 2168 198,614 | 4. _____________ NET SWAP INTEREST RECEIVABLE ___________________________ a. | TEXT 3549 | ---------------------------------------------------| RCFD 3549 | 59,963 | /////////////////////// | 4.a. ___________ b. | TEXT 3550 |____________________________________________________| RCFD 3550 | | /////////////////////// | 4.b. ___________ c. | TEXT 3551 |____________________________________________________| RCFD 3551 | | /////////////////////// | 4.c. _____________ ___________________________ 5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11) ........................... | RCFD 2160 398,765 | 5. ___________________________ Memorandum ___________________________ Dollar Amounts in Thousands | ////////// Bil Mil Thou | __________________________________________________________________________________________________ _________________________ 1. Deferred tax assets disallowed for regulatory capital purposes ............................... | RCFD 5610 0 | M.1. ___________________________ Schedule RC-G--Other Liabilities __________ | C435 | (- _________________ ________ Dollar Amounts in Thousands | ////////// Bil Mil Thou | __________________________________________________________________________________________________ _________________________ 1. a. Interest accrued and unpaid on deposits in domestic offices(2) ............................ | RCON 3645 27,012 | 1.a. b. Other expenses accrued and unpaid (includes accrued income taxes payable) ................. | RCFD 3646 174,668 | 1.b. 2. Net deferred tax liabilities(1) .............................................................. | RCFD 3049 0 | 2. 3. Minority interest in consolidated subsidiaries ............................................... | RCFD 3000 0 | 3. 4. Other (itemize and describe amounts that exceed 25% of this item) ............................ | RCFD 2938 95,251 | 4. _____________ UNSETTLED SECURITY PURCHASE AFS ___________________________ a. | TEXT 3552 |____________________________________________________| RCFD 3552 | 68,924 | /////////////////////// | 4.a. ___________ b. | TEXT 3553 |____________________________________________________| RCFD 3553 | | /////////////////////// | 4.b. ___________ c. | TEXT 3554 |____________________________________________________| RCFD 3554 | | /////////////////////// | 4.c. _____________ ___________________________ 5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20) ........................... | RCFD 2930 296,931 | 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.
21
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-12 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-H--Selected Balance Sheet Items for Domestic Offices ________ | C440 | (- ____________ ________ | Domestic Offices | ____________________ Dollar Amounts in Thousands | RCON Bil Mil Thou | _____________________________________________________________________________________________________ ____________________ 1. Customers' liability to this bank on acceptances outstanding .................................... | 2155 10,277 | 1. 2. Bank's liability on acceptances executed and outstanding ........................................ | 2920 10,277 | 2. 3. Federal funds sold and securities purchased under agreements to resell .......................... | 1350 1,789,196 | 3. 4. Federal funds purchased and securities sold under agreements to repurchase ...................... | 2800 1,211,601 | 4. 5. Other borrowed money ............................................................................ | 3190 14,893 | 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 211,290 | 7. 8. Total assets (excludes net due from foreign offices, Edge and Agreement subsidiaries, and IBFs) . | 2192 20,676,867 | 8. 9. Total liabilities (excludes net due to foreign offices, Edge and Agreement subsidiaries, and IBFs)| 3129 18,805,812 | 9. ______________________ Items 10-17 include held-to-maturity and available-for-sale securities in domestic offices. ______________________ | RCON Bil Mil Thou | ____________________ 10. U.S. Treasury securities ....................................................................... | 1779 599,461 | 10. 11. U.S. Government agency and corporation obligations (exclude mortgage-backed | ////////////////// | securities) .................................................................................... | 1785 36 | 11. 12. Securities issued by states and political subdivisions in the U.S. ............................. | 1786 299 | 12. 13. Mortgage-backed securities: (MBS) | ////////////////// | a. Pass-through securities: | ////////////////// | (1) Issued or guaranteed by FNMA, FHLMC, or GNMA ............................................ | 1787 3,101,849 | 13.a.(1) (2) Other pass-through securities ........................................................... | 1869 0 | 13.a.(2) b. Other mortgage-backed securities (include CMOs, REMICs, and and stripped MBS): | ////////////////// | (1) Issued or guaranteed by FNMA, FHLMC, GNMA ............................................... | 1877 0 | 13.b.(1) (2) All other mortgage-backed securities .................................................... | 2253 3,268 | 13.b.(2) 14. Other domestic debt securities ................................................................. | 3159 0 | 14. 15. Foreign debt securities ........................................................................ | 3160 0 | 15. 16. Equity securities: | ////////////////// | a. Investments in mutual funds ................................................................. | 3161 0 | 16.a. b. Other equity securities with readily determinable fair values ............................... | 3162 0 | 16.b. c. All other equity securities ................................................................. | 3169 46,127 | 16.c. 17. Total held-to-maturity and available-for-sale securities (sum of items 10 through 16) .......... | 3170 3,751,040 | 17. ______________________ Memorandum (to be completed only by banks with IBFs and other "foreign" offices) ______________________ Dollar Amounts in Thousands | RCON Bil Mil Thou | _____________________________________________________________________________________________________ ____________________ EITHER | ////////////////// | 1. Net due from the IBF of the domestic offices of the reporting bank .............................. | 3051 N/A | M.1. OR | ////////////////// | 2. Net due to the IBF of the domestic offices of the reporting bank ................................ | 3059 N/A | M.2. ______________________
22
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-13 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ 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 | RCFN Bil Mil Thou | _____________________________________________________________________________________________________ ____________________ 1. Total IBF assets of the consolidated bank (component of Schedule RC, item 12) .................. | 2133 N/A | 1. 2. Total IBF loans and lease financing receivables (component of Schedule RC-C, part I, item 12, | ////////////////// | column A) ...................................................................................... | 2076 N/A | 2. 3. IBF commercial and industrial loans (component of Schedule RC-C, part I, item 4, column A) ..... | 2077 N/A | 3. 4. Total IBF liabilities (component of Schedule RC, item 21) ...................................... | 2898 N/A | 4. 5. IBF deposit liabilities due to banks, including other IBFs (component of Schedule RC-E, | ////////////////// | part II, items 2 and 3) ........................................................................ | 2379 N/A | 5. 6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5, and 6) ...... | 2381 N/A | 6. Schedule RC-K--Quarterly Averages (1) __________ | C455 | (- _________________ ________ Dollar Amounts in Thousands | ///////// Bil Mil Thou | _______________________________________________________________________________________________ _________________________ ASSETS | /////////////////////// | 1. Interest-bearing balances due from depository institutions ............................... | RCFD 3381 5,108 | 1. 2. U.S. Treasury securities and U.S. Government agency and corporation obligations(2) ....... | RCFD 3382 3,826,844 | 2. 3. Securities issued by states and political subdivisions in the U.S.(2) .................... | RCFD 3383 299 | 3. 4. a. Other debt securities(2) .............................................................. | RCFD 3647 3,300 | 4.a. b. Equity securities(3) (includes investments in mutual funds and Federal Reserve stock) . | RCFD 3648 46,127 | 4.b. 5. Federal funds sold and securities purchased under agreements to resell in domestic offices | /////////////////////// | of the bank and of its Edge and Agreement subsidiaries, and in IBFs ...................... | RCFD 3365 616,920 | 5. 6. Loans: | /////////////////////// | a. Loans in domestic offices: | /////////////////////// | (1) Total loans ....................................................................... | RCON 3360 11,947,333 | 6.a.(1) (2) Loans secured by real estate ...................................................... | RCON 3385 2,563,218 | 6.a.(2) (3) Loans to finance agricultural production and other loans to farmers ............... | RCON 3386 65,149 | 6.a.(3) (4) Commercial and industrial loans ................................................... | RCON 3387 5,998,153 | 6.a.(4) (5) Loans to individuals for household, family, and other personal expenditures ....... | RCON 3388 2,340,499 | 6.a.(5) b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs ............. | RCFN 3360 113,629 | 6.b. 7. Trading assets ........................................................................... | RCFD 3401 30,425 | 7. 8. Lease financing receivables (net of unearned income) ..................................... | RCFD 3484 152,674 | 8. 9. Total assets (4).......................................................................... | RCFD 3368 19,879,684 | 9. LIABILITIES | /////////////////////// | 10. Interest-bearing transaction accounts in domestic offices (NOW accounts, ATS accounts, | /////////////////////// | and telephone and preauthorized transfer accounts) (exclude demand deposits) ............. | RCON 3485 415,579 | 10. 11. Nontransaction accounts in domestic offices: | /////////////////////// | a. Money market deposit accounts (MMDAs) ................................................. | RCON 3486 2,794,960 | 11.a. b. Other savings deposits ................................................................ | RCON 3487 2,944,928 | 11.b. c. Time certificates of deposit of $100,000 or more ...................................... | RCON 3345 842,531 | 11.c. d. All other time deposits ............................................................... | RCON 3469 2,687,600 | 11.d. 12. Interest-bearing deposits in foreign offices, Edge and Agreement subsidiaries, and IBFs .. | RCFN 3404 343,692 | 12. 13. Federal funds purchased and securities sold under agreements to repurchase in domestic | /////////////////////// | offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs .............. | RCFD 3353 1,220,916 | 13. 14. Other borrowed money ..................................................................... | RCFD 3355 27,745 | 14. ___________________________ _____________ (1) For all items, banks have the option of reporting either (1) an average of daily figures for the quarter, or (2) an average of weekly figures (i.e., the Wednesday of each week of the quarter). (2) Quarterly averages for all debt securities should be based on amortized cost. (3) Quarterly averages for all equity securities should be based on historical cost. (4) The quarterly average for total assets should reflect all debt securities (not held for trading) at amortized cost, equity securities with readily determinable fair values at the lower of cost or fair value, and equity securities without readily determinable fair values at historical cost.
23
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-14 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ 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 | RCFD Bil Mil Thou | ____________________________________________________________________________________________________ ____________________ 1. Unused commitments: | ////////////////// | a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., home | ////////////////// | equity lines ............................................................................... | 3814 0 | 1.a. b. Credit card lines .......................................................................... | 3815 0 | 1.b. c. Commercial real estate, construction, and land development: | ////////////////// | (1) Commitments to fund loans secured by real estate ....................................... | 3816 376,776 | 1.c.(1) (2) Commitments to fund loans not secured by real estate ................................... | 6550 259,962 | 1.c.(2) d. Securities underwriting .................................................................... | 3817 0 | 1.d. e. Other unused commitments ................................................................... | 3818 7,920,509 | 1.e. 2. Financial standby letters of credit and foreign office guarantees ............................. | 3819 1,018,656 | 2. ___________________________ a. Amount of financial standby letters of credit conveyed to others | RCFD 3820 | 102,711 | ////////////////// | 2.a. ___________________________ 3. Performance standby letters of credit and foreign office guarantees ........................... | 3821 61,809 | 3. a. Amount of performance standby letters of credit conveyed to | ////////////////// | ___________________________ others .......................................................... | RCFD 3822 | 2,799 | ////////////////// | 3.a. ___________________________ 4. Commercial and similar letters of credit ...................................................... | 3411 194,001 | 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 79,067 | 7. 8. Securities lent (including customers' securities lent where the customer is indemnified | ////////////////// | against loss by the reporting bank) ........................................................... | 3433 17,973 | 8. 9. Loans transferred (i.e., sold or swapped) with recourse that have been treated as sold | ////////////////// | for Call Report purposes: | ////////////////// | a. FNMA and FHLMC residential mortgage loan pools: | ////////////////// | (1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3650 0 | 9.a.(1) (2) Amount of recourse exposure on these mortgages as of the report date ................... | 3651 0 | 9.a.(2) b. Private (nongovernment-issued or -guaranteed) residential mortgage loan pools: | ////////////////// | (1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3652 0 | 9.b.(1) (2) Amount of recourse exposure on these mortgages as of the report date ................... | 3653 0 | 9.b.(2) c. Farmer Mac agricultural mortgage loan pools: | ////////////////// | (1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3654 0 | 9.c.(1) (2) Amount of recourse exposure on these mortgages as of the report date ................... | 3655 0 | 9.c.(2) d. Small business obligations transferred with recourse under Section 208 of the Reigle | ////////////////// | 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 7,415 | 10.a. b. Gross commitments to sell .................................................................. | 3435 6,975 | 10.b. 11. Spot foreign exchange contracts................................................................ | 8765 482,982 | 11. 12. All other off-balance sheet liabilities (exclude off-balance sheet derivitives) (itemize and | ////////////////// | describe each component of this item over 25% of Schedule RC, item 28, "Total equity capital"). | 3430 0 | 12. _____________ _______________________________| ////////////////// | a. | TEXT 3555 | | RCFD 3555 | | ////////////////// | 12.a. -------------------------------------------------------------- b. | TEXT 3556 | | RCFD 3556 | | ////////////////// | 12.b. -------------------------------------------------------------- c. | TEXT 3557 | | RCFD 3557 | | ////////////////// | 12.c. -------------------------------------------------------------- d. | TEXT 3558 | | RCFD 3558 | | ////////////////// | 12.d. -------------------------------------------------------------------------------------------------------------------
24
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-15 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-L--Continued Dollar Amounts in Thousands | RCFD Bil Mil Thou | ______________________________________ ____________________ ____________________ ____________________ ____________________ 13. All other off-balance sheet assets (exclude off-balance sheet derivatives) (itemize and | ////////////////// | describe each component of this item over 25% of Schedule RC, item 28, "Total equity | ////////////////// | capital")....................................................................................... | 5591 0 | 13. _____________ _______________________________| ////////////////// | a. | TEXT 5592 | | RCFD 5592 | | ////////////////// | 13.a. b. | TEXT 5593 | | RCFD 5593 | | ////////////////// | 13.b. c. | TEXT 5594 | | RCFD 5594 | | ////////////////// | 13.C. d. | TEXT 5595 | | RCFD 5595 | | ////////////////// | 13.d. -------------------------------------------------------------------------------------------------------------------| __________ | C461 | (- |_________________________________________|_________________________________________ | (Column A) | (Column B) | (Column C) | (Column D) | Dollar Amounts in Thousands | Interest Rate | Foreign Exchange | Equity Derivative | Commodity and | _________________________________ | Contracts | Contracts | Contracts | Other Contracts | Off-balance Sheet Derivatives |____________________|____________________|____________________|____________________| Position Indicators | Tril Bil Mil Thou | Tril Bil Mil Thou | Tril Bil Mil Thou | Tril Bil Mil Thou | ______________________________________|____________________|____________________|____________________|____________________| 14. Gross amounts (e.g., notional | ////////////////// | ////////////////// | ////////////////// | ////////////////// | amounts) for each column, sum of | ////////////////// | ////////////////// | ////////////////// | ////////////////// | items 14.a through 14.e must | ////////////////// | ////////////////// | ////////////////// | ////////////////// | equal sum of items 15, 16.a, and | ////////////////// | ////////////////// | ////////////////// | ////////////////// | 16.b): | ////////////////// | ////////////////// | ////////////////// | ////////////////// | a. Futures contracts.............. | 0 | 0 | 0 | 0 | 14.a. | RCFD 8693 | RCFD 8694 | RCFD 8695 | RCFD 8696 | b. Forward contracts.............. | 33,476 | 320,460 | 0 | 0 | 14.b. | RCFD 8697 | RCFD 8698 | RCFD 8699 | RCFD 8700 | c. Exchange-traded option | ////////////////// | ////////////////// | ////////////////// | ////////////////// | contracts: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | (1) Written options............ | 1,500,000 | 0 | 0 | 0 | 14.c.(1) | RCFD 8701 | RCFD 8702 | RCFD 8703 | RCFD 8704 | (2) Purchased options.......... | 1,500,000 | 0 | 0 | 0 | 14.c.(2) | RCFD 8705 | RCFD 8706 | RCFD 8707 | RCFD 8708 | d. Over-the-counter option | ////////////////// | ////////////////// | ////////////////// | ////////////////// | contracts: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | (1) Written options............ | 275,423 | 0 | 0 | 1,025 | 14.d.(1) | RCFD 8709 | RCFD 8710 | RCFD 8711 | RCFD 8712 | (2) Purchased options.......... | 1,480,423 | 11,050 | 0 | 1,025 | 14.d.(2) | RCFD 8713 | RCFD 8714 | RCFD 8715 | RCFD 8716 | e. Swaps.......................... | 5,110,300 | 0 | 0 | 11,540 | 14.e. | RCFD 3450 | RCFD 3826 | RCFD 8719 | RCFD 8720 | 15. Total gross notional amount of | ////////////////// | ////////////////// | ////////////////// | ////////////////// | derivative contracts held for | ////////////////// | ////////////////// | ////////////////// | ////////////////// | trading.......................... | 3,030,092 | 331,510 | 0 | 13,590 | 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..... | 2,185,000 | 0 | 0 | 0 | 16.a. | RCFD 8725 | RCFD 8726 | RCFD 8727 | RCFD 8728 | b. Contracts not marked to market. | 4,684,530 | 0 | 0 | 0 | 16.b. | RCFD 8729 | RCFD 8730 | RCFD 8731 | RCFD 8732 | _____________________________________________________________________________________
25
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-16 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-L--Continued |_________________________________________|_________________________________________ ______________________________________| (Column A) | (Column B) | (Column C) | (Column D) | Dollar Amounts in Thousands | Interest Rate | Foreign Exchange | Equity Derivative | Commodity and | ______________________________________| Contracts | Contracts | Contracts | Other Contracts | Off-balance Sheet Derivatives |____________________|____________________|____________________|____________________| Position Indicators | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | ______________________________________|____________________|____________________|____________________|____________________| 17. Gross fair values of derivative | ////////////////// | ////////////////// | ////////////////// | ////////////////// | contracts: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | a. Contracts held for trading: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | (1) Gross positive fair value. | 8733 23,570 | 8734 6,112 | 8735 0 | 8736 3,230 | 17.a.(1) (2) Gross negative fair value. | 8737 18,724 | 8738 6,001 | 8739 0 | 8740 3,054 | 17.a.(2) b. Contracts held for purposes | ////////////////// | ////////////////// | ////////////////// | ////////////////// | other than trading that are | ////////////////// | ////////////////// | ////////////////// | ////////////////// | marked to market: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | (1) Gross positive fair value. | 8741 743 | 8742 0 | 8743 0 | 8744 0 | 17.b.(1) (2) Gross negative fair value. | 8745 2,787 | 8746 0 | 8747 0 | 8748 0 | 17.b.(2) c. Contracts held for purposes | ////////////////// | ////////////////// | ////////////////// | ////////////////// | other than trading that are | ////////////////// | ////////////////// | ////////////////// | ////////////////// | not marked to market: | ////////////////// | ////////////////// | ////////////////// | ////////////////// | (1) Gross positive fair value. | 8749 52,042 | 8750 0 | 8751 0 | 8752 0 | 17.c.(1) (2) Gross negative fair value. | 8753 955 | 8754 0 | 8755 0 | 8756 0 | 17.c.(2) _____________________________________________________________________________________ ____________________ Memoranda Dollar Amounts in Thousands | RCFD Bil Mil Thou | __________________________________________________________________________________________________________________________ 1.-2. Not applicable | ////////////////// | 3. Unused commitments with an original maturity exceeding one year that are reported in Schedule | ////////////////// | RC-L, items 1.a thorugh 1.e, above (report only the unused portions of commitments that are fee | ////////////////// | paid or otherwise legally binding).............................................................. | 3833 4,876,782 | M.3. a. Participations in commitments with an original maturity | ////////////////// | exceeding one year conveyed to others............................. | RCFD 3834 | 7,250 | ////////////////// | M.3.a. 4. To be completed only by banks with $1 billion or more in total assets: | ////////////////// | Standby letters of credit and foreign office guarantees (both financial and performance) issued | ////////////////// | to non-U.S. addressees (domicile) included in Schedule RC-L, items 2 and 3, above............... | 3377 46,326 | 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. ______________________
26
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-17 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-M--Memoranda ________ | C465 | (- ____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | __________________________________________________________________________________________________________________________ 1. Extensions of credit by the reporting bank to its executive officers, directors, principal | ////////////////// | shareholders, and their related interests as of the report date: | ////////////////// | a. Aggregate amount of all extensions of credit to all executive officers, directors, principal | ////////////////// | shareholders, and their related interests.................................................... | 6164 22,181 | 1.a. b. Number of executive officers, directors, and principal shareholders to whom the amount of | ////////////////// | all extensions of credit by the reporting bank (including extensions of credit to related | ////////////////// | interests) equals or exceeds the lesser of $500,000 or 5 percent Number | ////////////////// | of total capital as defined for this purpose in agency regulations. | RCFD 6165 | 3 | ////////////////// | 1.b. 2. Federal funds sold and securities purchased under agreements to resell with U.S. branches and | ////////////////// | agencies of foreign banks(1) (included in Schedule RC, items 3.a and 3.b)....................... | 3405 0 | 2. 3. Not applicable. | ////////////////// | 4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for others | ////////////////// | (include both retained servicing and purchased servicing): | ////////////////// | a. Mortgages serviced under a GNMA contract..................................................... | 5500 0 | 4.a. b. Mortgages serviced under a FHLMC contract: | ////////////////// | (1) Serviced with recourse to servicer....................................................... | 5501 0 | 4.b.(1) (2) Serviced without recourse to servicer.................................................... | 5502 0 | 4.b.(2) c. Mortgages serviced under a FNMA contract: | ////////////////// | (1) Serviced under a regular option contract................................................. | 5503 0 | 4.c.(1) (2) Serviced under a special option contract................................................. | 5504 0 | 4.c.(2) d. Mortgages serviced under other servicing contracts........................................... | 5505 0 | 4.d. 5. To be completed only by banks with $1 billion or more in total assets: | ////////////////// | Customers' liability to this bank on acceptances outstanding (sum of items 5.a and 5.b must | ////////////////// | equal Schedule RC, item 9): | ////////////////// | a. U.S. addressees (domicile)................................................................... | 2103 5,072 | 5.a. b. Non-U.S. addressees (domicile)............................................................... | 2104 5,205 | 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 106,238 | 6.b.(2) c. Goodwill..................................................................................... | 3163 336,161 | 6.c. d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10)....................... | 2143 442,399 | 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. ______________________
- ---------------- (1) Do not report federal funds sold and securities purchased under agreements to resell with other commercial banks in the U.S. in this item. 27
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-18 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-M--Continued ___________________________ Dollar Amounts in Thousands | ///////// Bil Mil Thou | _____________________________________________________________________________________________ _________________________ 8. a. Other real estate owned: | /////////////////////// | (1) Direct and indirect investments in real estate ventures ......................... | RCFD 5372 0 | 8.a.(1) (2) All other real estate owned: | /////////////////////// | (a) Construction and land development in domestic offices ....................... | RCON 5508 2,523 | 8.a.(2)(a) (b) Farmland in domestic offices ................................................ | RCON 5509 0 | 8.a.(2)(b) (c) 1-4 family residential properties in domestic offices ....................... | RCON 5510 339 | 8.a.(2)(c) (d) Multifamily (5 or more) residential properties in domestic offices .......... | RCON 5511 0 | 8.a.(2)(d) (e) Nonfarm nonresidential properties in domestic offices ....................... | RCON 5512 10,781 | 8.a.(2)(e) (f) In foreign offices .......................................................... | RCFN 5513 0 | 8.a.(2)(f) (3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7) ....... | RCFD 2150 13,643 | 8.a.(3) b. Investments in unconsolidated subsidiaries and associated companies: | /////////////////////// | (1) Direct and indirect investments in real estate ventures ......................... | RCFD 5374 0 | 8.b.(1) (2) All other investments in unconsolidated subsidiaries and associated companies ... | RCFD 5375 0 | 8.b.(2) (3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8) ....... | RCFD 2130 0 | 8.b.(3) c. Total assets of unconsolidated subsidiaries and associated companies ................ | RCFD 5376 0 | 8.c. 9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC, | /////////////////////// | item 23, "Perpetual preferred stock and related surplus" ............................... | RCFD 3778 0 | 9. 10. Mutual fund and annuity sales in domestic offices during the quarter (include | /////////////////////// | proprietary, private label, and third party products): | /////////////////////// | a. Money market funds .................................................................. | RCON 6441 7,017,685 | 10.a. b. Equity securities funds ............................................................. | RCON 8427 0 | 10.b. c. Debt securities funds ............................................................... | RCON 8428 0 | 10.c. d. Other mutual funds .................................................................. | RCON 8429 48,925 | 10.d. e. Annuities ........................................................................... | RCON 8430 11,720 | 10.e. f. Sales of proprietary actual funds and annuities (included in items 10.a through | /////////////////////// | 10.e above).......................................................................... | RCON 8784 4,047,691 | 10.f. ___________________________ _________________________________________________________________________________________________________________________________ | | ______________________ |Memorandum Dollar Amounts in Thousands | RCFD Bil Mil Thou | | _________________________________________________________________________________________________ ____________________ |1. Interbank holdings of capital instruments (to be completed for the December report only): | ////////////////// | | | a. Reciprocal holdings of banking organizations' capital instruments ........................ | 3836 N/A | M.1.a. | | b. Nonreciprocal holdings of banking organizations' capital instruments ..................... | 3837 N/A | M.1.b. | | ______________________ | | | _________________________________________________________________________________________________________________________________
28
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-19 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ 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 | (- __________________________________________________________________ | (Column A) | (Column B) | (Column C) | | Past due | Past due 90 | Nonaccrual | | 30 through 89 | days or more | | | days and still | and still | | | accruing | accruing | | __________________________________________________________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | _______________________________________________________________________________________________________________________ 1. Loans secured by real estate: | //////////////////// | ////////////////// | ////////////////// | a. To U.S. addressees (domicile) ................ | 1245 | 1246 15,054 | 1247 68,846 | 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 3 | 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 2,461 | 3. 4. Commercial and industrial loans: | //////////////////// | ////////////////// | ////////////////// | a. To U.S. addressees (domicile) ................ | 1251 0 | 1252 17,336 | 1253 57,982 | 4.a. b. To non-U.S. addressees (domicile) ............ | 1254 0 | 1255 0 | 1256 35 | 4.b. 5. Loans to individuals for household, family, and | //////////////////// | ////////////////// | ////////////////// | other personal expenditures: | //////////////////// | ////////////////// | ///////////////// | a. Credit cards and related plans ............... | 5383 0 | 5384 272 | 5385 0 | 5.a. b. Other (includes single payment, installment, | //////////////////// | ////////////////// | ////////////////// | and all student loans) ....................... | 5386 0 | 5387 18,299 | 5388 2,495 | 5.b. 6. Loans to foreign governments and official | //////////////////// | ////////////////// | ////////////////// | institutions .................................... | 5389 0 | 5390 0 | 5391 30 | 6. 7. All other loans ................................. | 5459 0 | 5460 11,174 | 5461 1,346 | 7. 8. Lease financing receivables: | //////////////////// | ////////////////// | ////////////////// | a. Of U.S. addressees (domicile) ................ | 1257 0 | 1258 0 | 1259 0 | 8.a. b. Of non-U.S. addressees (domicile) ............ | 1271 0 | 1272 0 | 1791 0 | 8.b. 9. Debt securities and other assets (exclude other | //////////////////// | ////////////////// | ////////////////// | real estate owned and other repossessed assets) . | 3505 0 | 3506 0 | 3507 0 | 9. __________________________________________________________________ ==================================================================================================================================== Amounts reported in items 1 through 8 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and leases. Report in item 10 below certain guaranteed loans and leases that have already been included in the amounts reported in items 1 through 8. _________________________________________________________________ | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | 10. Loans and leases reported in items 1 |____________________ _____________________ ____________________| through 8 above which are wholly or partially | /////////////////// | ////////////////// | ////////////////// | guaranteed by the U.S. Government ............... | 5612 11,919 | 5613 15,221 | 5614 3,141 | 10. a. Guaranteed portion of loans and leases | /////////////////// | ////////////////// | ////////////////// | included in item 10 above .................... | 5615 0 | 5616 15,221 | 5617 2,513 | 10.a. _________________________________________________________________
29
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-20 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-N--Continued _________ | C473 | (- ______________________________________________________ _________ | (Column A) | (Column B) | (Column C) | | Past due | Past due 90 | Nonaccrual | | 30 through 89 | days or more | | | days and still | and still | | Memoranda | accruing | accruing | | ____________________ _____________________ _____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | ______________________________________________________ ____________________ ____________________ _____________________ 1. Restructured loans and leases included in | ////////////////// | ////////////////// | ////////////////// | Schedule RC-N, items 1 through 8, above | ////////////////// | ////////////////// | ////////////////// | (and not reported in Schedule RC-C, part I, | ////////////////// | ////////////////// | ////////////////// | Memorandum item 2)............................... | 1658 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 914 | 6560 1,604 | M.2. ____________________ ____________________ ____________________ 3. Loans secured by real estate in domestic offices | RCON Bil Mil Thou | RCON Bil Mil Thou | RCON Bil Mil Thou | ____________________ ____________________ ____________________ (included in Schedule RC-N, item 1, above): | ////////////////// | ////////////////// | ////////////////// | a. Construction and land development ............ | 2759 0 | 2769 4,463 | 3492 42,747 | M.3.a. b. Secured by farmland .......................... | 3493 0 | 3494 0 | 3495 260 | M.3.b. c. Secured by 1-4 family residential properties: | ////////////////// | ////////////////// | ////////////////// | (1) Revolving, open-end loans secured by | ////////////////// | ////////////////// | ////////////////// | 1-4 family residential properties and | ////////////////// | ////////////////// | ////////////////// | extended under lines of credit ........... | 5398 0 | 5399 0 | 5400 0 | M.3.c.(1) (2) All other loans secured by 1-4 family | ////////////////// | ////////////////// | ////////////////// | residential properties ................... | 5401 0 | 5402 6,493 | 5403 10,118 | M.3.c.(2) d. Secured by multifamily (5 or more) | ////////////////// | ////////////////// | ////////////////// | residential properties ....................... | 3499 0 | 3500 941 | 3501 686 | M.3.d. e. Secured by nonfarm nonresidential properties . | 3502 0 | 3503 3.157 | 3504 15,107 | M.3.e. ________________________________________________________________ ___________________________________________ | (Column A) | (Column B) | | Past due 30 | Past due 90 | | through 89 days | days or more | ____________________ ____________________ | RCFD Bil Mil Thou | RCFD Bil Mil Thou | ____________________ ____________________ 4. Interest rate, foreign exchange rate, and other | ////////////////// | ////////////////// | commodity and equity contracts: | ////////////////// | ////////////////// | a. Book value of amounts carried as assets ...... | 3522 0 | 3528 0 | M.4.a. b. Replacement cost of contracts with a | ////////////////// | ////////////////// | positive replacement cost .................... | 3529 0 | 3530 0 | M.4.b. ___________________________________________
30
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-21 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-O--Other Data for Deposit Insurance Assessments _________ | C475 | (- ____________ ________ Dollar Amounts in Thousands | RCON Bil Mil Thou | ___________________________________________________________________________________________________ ____________________ 1. Unposted debits (see instructions): | ////////////////// | a. Actual amount of all unposted debits ...................................................... | 0030 N/A | 1.a. OR | ////////////////// | b. Separate amount of unposted debits: | ////////////////// | (1) Actual amount of unposted debits to demand deposits ................................... | 0031 0 | 1.b.(1) (2) Actual amount of unposted debits to time and savings deposits(1) ...................... | 0032 0 | 1.b.(2) 2. Unposted credits (see instructions): | ////////////////// | a. Actual amount of all unposted credits ..................................................... | 3510 N/A | 2.a. OR | ////////////////// | b. Separate amount of unposted credits: | ////////////////// | (1) Actual amount of unposted credits to demand deposits .................................. | 3512 0 | 2.b.(1) (2) Actual amount of unposted credits to time and savings deposits(1) ..................... | 3514 0 | 2.b.(2) 3. Uninvested trust funds (cash) held in bank's own trust department (not included in total | ////////////////// | deposits in domestic offices) ................................................................ | 3520 25,457 | 3. 4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in | ////////////////// | Puerto Rico and U.S. territories and possessions (not included in total deposits): | ////////////////// | a. Demand deposits of consolidated subsidiaries .............................................. | 2211 2,432 | 4.a. b. Time and savings deposits(1) of consolidated subsidiaries ................................. | 2351 16 | 4.b. c. Interest accrued and unpaid on deposits of consolidated subsidiaries ...................... | 5514 0 | 4.c. 5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions: | ////////////////// | a. Demand deposits in insured branches (included in Schedule RC-E, Part II) .................. | 2229 0 | 5.a. b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part II) ..... | 2383 0 | 5.b. c. Interest accrued and unpaid on deposits in insured branches | ////////////////// | (included in Schedule RC-G, item 1.b) ..................................................... | 5515 0 | 5.c. ______________________ ______________________ Item 6 is not applicable to state nonmember banks that have not been authorized by the | ////////////////// | Federal Reserve to act as pass-through correspondents. | ////////////////// | 6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on | ////////////////// | behalf of its respondent depository institutions that are also reflected as deposit liabilities| ////////////////// | of the reporting bank: | ////////////////// | a. Amount reflected in demand deposits (included in Schedule RC-E, item 4 or 5, | ////////////////// | column B) ................................................................................. | 2314 25 | 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 1,938 | 7.a. b. Unamortized discounts ..................................................................... | 5517 0 | 7.b. ______________________ _______________________________________________________________________________________________________________________________ | | |8. To be completed by banks with "Oakar deposits." | ______________________ | Total "Adjusted Attributable Deposits" of all institutions acquired under Section 5(d)(3) of | ////////////////// | | | the Federal Deposit Insurance Act (from most recent FDIC Oakar Transaction Worksheet(s)) .... | 5518 N/A | 8. | ______________________ | | _______________________________________________________________________________________________________________________________ ______________________ 9. Deposits in lifeline accounts ................................................................ | 5596 ///////////// | 9. 10. Benefit-responsive "Depository Institution Investment Contracts" (included in total | ////////////////// | deposits in domestic offices) ................................................................ | 8432 0 | 10. ______________________ ______________ (1) For FDIC insurance assessment purposes, "time and savings deposits" consists of nontransaction accounts and all transaction accounts other than demand deposits.
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Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-22 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-O--Continued ______________________ Dollar Amounts in Thousands | RCON Bil Mil Thou | __________________________________________________________________________________________________ ____________________ 11. Adjustments to demand deposits in domestic offices reported in Schedule RC-E for certain | ////////////////// | reciprocal demand balances: | ////////////////// | a. Amount by which demand deposits would be reduced if reciprocal demand balances between | ////////////////// | the reporting bank and savings associations were reported on a net basis rather than a | ////////////////// | gross basis in Schedule RC-E .............................................................. | 8785 0 | 11.a. b. Amount by which demand deposits would be increased if reciprocal demand balances between | ////////////////// | the reporting bank and U.S. branches and agencies of foreign banks were reported on a | ////////////////// | gross basis rather than a net basis in Schedule RC-E ...................................... | A181 0 | 11.b. c. Amount by which demand deposits would be reduced if cash items in process of collection | ////////////////// | were included in the calculation of net reciprocal demand balances between the reporting | ////////////////// | bank and the domestic offices of U.S. banks and savings associations in Schedule RC-E ..... | A182 12,262 | 11.c. ______________________ Memoranda (to be completed each quarter except as noted) ______________________ Dollar Amounts in Thousands | RCON Bil Mil Thou | __________________________________________________________________________________________________ ____________________ 1. Total deposits in domestic offices of the bank (sum of Memorandum items 1.a.(1) and 1.b.(1) | ////////////////// | must equal Schedule RC, item 13.a): | ////////////////// | a. Deposit accounts of $100,000 or less: | ////////////////// | (1) Amount of deposit accounts of $100,000 or less ........................................ | 2702 8,620,055 | M.1.a.(1) (2) Number of deposit accounts of $100,000 or less (to be Number | ////////////////// | ___________________________ completed for the June report only) ........................ | RCON 3779 | 1,261,937 | ////////////////// | M.1.a.(2) ___________________________ b. Deposit accounts of more than $100,000: | ////////////////// | (1) Amount of deposit accounts of more than $100,000 ........... Number | 2710 6,721,389 | M.1.b.(1) ___________________________ (2) Number of deposit accounts of more than $100,000 ........... | RCON 2722 | 17,080 | ////////////////// | M.1.b.(2) _________________________________________________ 2. Estimated amount of uninsured deposits in domestic offices of the bank: a. An estimate of your bank's uninsured deposits can be determined by multiplying the number of deposit accounts of more than $100,000 reported in Memorandum item 1.b.(2) above by $100,000 and subtracting the result from the amount of deposit accounts of more than $100,000 reported in Memorandum item 1.b.(1) above. Indicate in the appropriate box at the right whether your bank has a method or procedure for YES NO ______________________ determining a better estimate of uninsured deposits than the estimate described above ..... | 6861| |///| X | M.2.a. ____________________ b. If the box marked YES has been checked, report the estimate of uninsured deposits | RCON Bil Mil Thou | ____________________ 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: __________ Karen Gatenby, Vice President (713) 216-5263 _____________________________________________________________________________ ___________________________________________ Name and Title (TEXT 8901) Area code/phone number/extension (TEXT 8902)
32
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-23 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ 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. ____________ | C480 | (- 1. Test for determining the extent to which Schedule RC-R must be completed. To be completed _____ __________ only by banks with total assets of less than $1 billion. Indicate in the appropriate | YES NO | box at the right whether the bank has total capital greater than or equal to eight percent __________ _______________ of adjusted total assets ............................................................... | RCFD 6056 | |////| | 1. _____________________________ For purposes of this test, adjusted total assets equals total assets less cash, U.S. Treasuries, U.S. Government agency obligations, and 80 percent of U.S. Government-sponsored agency obligations plus the allowance for loan and lease losses and selected off-balance sheet items as reported on Schedule RC-L (see instructions). If the box marked YES has been checked, then the bank only has to complete items 2 and 3 below. If the box marked NO has been checked, the bank must complete the remainder of this schedule. A NO response to item 1 does not necessarily mean that the bank's actual risk-based capital ratio is less than eight percent or that the bank is not in compliance with the risk-based capital guidelines. ___________________________________________ | (Column A) | (Column B) | - -------------------------------------------------------------------- |Subordinated Debt(1)| Other | | NOTE: All banks are required to complete items 2 and 3 below. | | and Intermediate | Limited- | | See optional worksheet for items 3.a through 3.f. | | Term Preferred | Life Capital | - -------------------------------------------------------------------- | Stock | Instruments | ____________________ ____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | ______________________________________________________________________________ ____________________ ____________________ 2. Subordinated debt(1) and other limited-life capital instruments (original | ////////////////// | ////////////////// | weighted average maturity of at least five years) with a remaining | ////////////////// | ////////////////// | maturity of: | ////////////////// | ////////////////// | a. One year or less ...................................................... | 3780 0 | 3786 0 | 2.a. b. Over one year through two years ....................................... | 3781 0 | 3787 0 | 2.b. c. Over two years through three years .................................... | 3782 0 | 3788 0 | 2.c. d. Over three years through four years ................................... | 3783 0 | 3789 0 | 2.d. e. Over four years through five years .................................... | 3784 0 | 3790 0 | 2.e. f. Over five years ....................................................... | 3785 345,000 | 3791 0 | 2.f. ___________________________________________ 3. Amounts used in calculating regulatory capital ratios (report amounts | ////////////////// | RCFD Bil Mil Thou | determined by the bank for its own internal regulatory capital analyses): | ////////////////// | __________________ | a. Tier 1 capital ........................................................ | ////////////////// | 8274 1,301,429 | 3.a. b. Tier 2 capital ........................................................ | ////////////////// | 8275 549,651 | 3.b. c. Total risk-based capital .............................................. | ////////////////// | 3792 1,851,080 | 3.c. d. Excess allowance for loan and lease losses ............................ | ////////////////// | A222 49,747 | 3.d. e. Risk-weighted assets .................................................. | ////////////////// | A223 16,322,316 | 3.e. f. "Average total assets" ................................................ | ////////////////// | A224 19,437,285 | 3.f. ___________________________________________ ___________________________________________ | (Column A) | (Column B) | Items 4-9 and Memoranda items 1 and 2 are to be completed | Assets | Credit Equiv- | by banks that answered NO to item 1 above and | Recorded | alent Amount | by banks with total assets of $1 billion or more. | on the | of Off-Balance | | Balance Sheet | Sheet Items(2) | ____________________ ____________________ 4. Assets and credit equivalent amounts of off-balance sheet items assigned | RCFD Bil Mil Thou | RCFD Bil Mil Thou | ____________________ ____________________ to the Zero percent risk category: | ////////////////// | ////////////////// | a. Assets recorded on the balance sheet: | ////////////////// | ////////////////// | (1) Securities issued by, other claims on, and claims unconditionally | ////////////////// | ////////////////// | guaranteed by, the U.S. Government and its agencies and other | ////////////////// | ////////////////// | OECD central governments .......................................... | 3794 2,151,228 | ////////////////// | 4.a.(1) (2) All other ......................................................... | 3795 543,280 | ////////////////// | 4.a.(2) b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3796 31,888 | 4.b. ___________________________________________ ______________ (1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7. (2) Do not report in column B the risk-weighted amount of assets reported in column A.
33
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-24 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Schedule RC-R--Continued ___________________________________________ | (Column A) | (Column B) | | Assets | Credit Equiv- | | Recorded | alent Amount | | on the | of Off-Balance | | Balance Sheet | Sheet Items(1) | ____________________ ____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | ______________________________________________________________________________ ____________________ ____________________ 5. Assets and credit equivalent amounts of off-balance sheet items | ////////////////// | ////////////////// | assigned to the 20 percent risk category: | ////////////////// | ////////////////// | a. Assets recorded on the balance sheet: | ////////////////// | ////////////////// | (1) Claims conditionally guaranteed by the U.S. Government and its | ////////////////// | ////////////////// | agencies and other OECD central governments ........................| 3798 434,311 | ////////////////// | 5.a.(1) (2) Claims collateralized by securities issued by the U.S. Govern- | ////////////////// | ////////////////// | ment and its agencies and other OECD central governments; by | ////////////////// | ////////////////// | securities issued by U.S. Government-sponsored agencies; and | ////////////////// | ////////////////// | by cash on deposit .................................................| 3799 96,485 | ////////////////// | 5.a.(2) (3) All other ..........................................................| 3800 5,251,140 | ////////////////// | 5.a.(3) b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3801 206,324 | 5.b. 6. Assets and credit equivalent amounts of off-balance sheet items | ////////////////// | ////////////////// | assigned to the 50 percent risk category: | ////////////////// | ////////////////// | a. Assets recorded on the balance sheet .................................. | 3802 789,520 | ////////////////// | 6.a. b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3803 35,076 | 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 11,812,356 | ////////////////// | 7.a. b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3805 3,392,152 | 7.b. 8. On-balance sheet asset values excluded from the calculation of the | ////////////////// | ////////////////// | risk-based capital ratio(2) .............................................. | 3806 (15,822)| ////////////////// | 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 21,062,498 | ////////////////// | 9. ___________________________________________ Memoranda ____________________ Dollar Amounts in Thousands | RCFD Bil Mil Thou | ______________________________________________________________________________ ____________________ ____________________ 1. Current credit exposure across all off-balance sheet derivative contracts covered by the | ////////////////// | risk-based capital standards .................................................................. | 8764 71,253 | M.1. ______________________ _________________________________________________________________ With a remaining maturity of __________________________________________________________________ | (Column A) | (Column B) | (Column C) | | One year or less | Over one year | Over five years | | | through five years | | __________________________________________________________________ | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | _________________________________________________________________ 2. Notional principal amounts of off-balance sheet | //////////////////// | ////////////////// | ////////////////// | derivative contracts(3): | //////////////////// | ////////////////// | ////////////////// | a. Interest rate contracts ...................... | 3809 4,326,479 | 8766 3,219,976 | 8767 577,744 | M.2.a. b. Foreign exchange contracts ................... | 3812 283,141 | 8769 48,368 | 8770 0 | M.2.b. c. Gold contracts ............................... | 8771 0 | 8772 0 | 8773 0 | M.2.c. d. Other precious metal contracts ............... | 8774 0 | 8775 0 | 8776 0 | M.2.d. e. Other commodity contracts .................... | 8777 1,173 | 8778 11,392 | 8779 0 | M.2.e. f. Equity derivative contracts .................. | A000 0 | A001 0 | A002 0 | M.2.f. __________________________________________________________________ ______________ (1) Do not report in column B the risk-weighted amount of assets reported in column A. (2) Include the difference between the fair value and the amortized cost of its available-for-sale securities in item 8 and report the amortized cost of these securities in items 4 through 7 above. Item 8 also includes on-balance sheet asset values (or portions thereof) of off-balance sheet interest rate, foreign exchange rate, and commodity contracts and those contracts (e.g., futures contracts) not subject to risk-based capital. Exclude from item 8 margin accounts and accrued receivables 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.
34
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 FFIEC 031 Address: P.O. Box 2558 Page RC-25 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ Optional Narrative Statement Concerning the Amounts Reported in the Reports of Condition and Income at close of business on June 30, 1996 Texas Commerce Bank National Association Houston Texas _______________________________________________________________ __________________________________, ___________________________ Legal Title of Bank City State The management of the reporting bank may, if it wishes, sub- the truncated statement will appear as the bank's statement mit a brief narrative statement on the amounts reported in both on agency computerized records and in computer-file the Reports of Condition and Income. This optional statement releases to the public. will be made available to the public, along with the publicly available data in the Reports of Condition and Income, in re- All information furnished by the bank in the narrative state- sponse to any request for individual bank report data. How- ment must be accurate and not misleading. Appropriate ef- ever, the information reported in column A and in all of forts shall be taken by the submitting bank to ensure the Memorandum item 1 of Schedule RC-N is regarded as confidential statement's accuracy. The statement must be signed, in the and will not be released to the public. BANKS CHOOSING TO space provided below, by a senior officer of the bank who SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE thereby attests to its accuracy. STATEMENT DOES NOT CONTAIN THE NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK CUSTOMERS, REFERENCES If, subsequent to the original submission, material changes TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN are submitted for the data reported in the Reports of Condi- SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY ARE tion and Income, the existing narrative statement will be NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD deleted from the files, and from disclosure; the bank, at its COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing option, may replace it with a statement, under signature, ap- not to make a statement may check the "No comment" box below propriate to the amended data. and should make no entries of any kind in the space provided for the narrative statement; i.e., DO NOT enter in this space The optional narrative statement will appear in agency such phrases as "No statement," "Not applicable," "N/A," records and in release to the public exactly as submitted (or "No comment," and "None." amended as described in the preceding paragraph) by the management of the bank (except for the truncation of state- ments exceeding the 750-character limit described above). THE STATEMENT WILL NOT BE EDITED OR SCREENED IN ANY The optional statement must be entered on this sheet. The WAY BY THE SUPERVISORY AGENCIES FOR ACCURACY OR statement should not exceed 100 words. Further, regardless RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT of the number of words, the statement must not exceed 750 SIGNIFY THAT ANY FEDERAL SUPERVISORY AGENCY HAS characters, including punctuation, indentation, and standard VERIFIED OR CONFIRMED THE ACCURACY OF THE INFORMATION spacing between words and sentences. If any submission CONTAINED THEREIN. A STATEMENT TO THIS EFFECT WILL should exceed 750 characters, as defined, it will be truncated APPEAR ON ANY PUBLIC RELEASE OF THE OPTIONAL STATEMENT at 750 characters with no notice to the submitting bank and SUBMITTED BY THE MANAGEMENT OF THE REPORTING BANK. _________________________________________________________________________________________________________________________________ No comment | | (RCON 6979) | C471 | C472 |(- ___ ___________________ BANK MANAGEMENT STATEMENT (please type or print clearly): (TEXT 6980) /s/ Kenneth L. Tilton _____________________________________________ ________________________________ Signature of Executive Officer of Bank Date of Signature
35
Legal Title of Bank: Texas Commerce Bank National Association Call Date: 6/30/96 ST-BK: 48-3926 Address: P.O. Box 2558 City, State Zip: Houston, TX 77252-2558 FDIC Certificate No.: |0|3|2|6|3| ___________ THIS PAGE IS TO BE COMPLETED BY ALL BANKS - ---------------------------------------------------------------------------------------------------------------------------------- NAME AND ADDRESS OF BANK | OMB No. For OCC: 1557-0081 | OMB No. For FDIC: 3064-0052 | OMB No. For Federal Reserve: 7100-0036 | Expiration Date: 3/31/99 | PLACE LABEL HERE | SPECIAL REPORT | (Dollar Amounts in Thousands) | __________________________________________________________________ | CLOSE OF BUSINESS | FDIC Certificate Number | | | DATE | | C-700 | (- | 6/30/96 | |0|3|2|6|3| | | __________________________________________________________________________________________________________________________________ LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date) - ---------------------------------------------------------------------------------------------------------------------------------- The following information is required by Public Laws 90-44 and 102-242, but does not constitute a part of the Report of Condition. With each Report of Condition, these Laws require all banks to furnish a report of all loans or other extensions of credit to their executive officers made since the date of the previous Report of Condition. Data regarding individual loans or other extensions of credit are not required. If no such loans or other extensions of credit were made during the period, insert "none" against subitem (a). (Exclude the first $15,000 of indebtedness of each executive officer under bank credit card plan.) See Sections 215.2 and 215.3 of Title 12 of the Code of Federal Regulations (Federal Reserve Board Regulation O) for the definitions of "executive officer" and "extension of credit," respectively. Exclude loans and other extensions of credit to directors and principal shareholders who are not executive officers. - ---------------------------------------------------------------------------------------------------------------------------------- _____________________________ a. Number of loans made to executive officers since the previous Call Report date .............. | RCFD 3561 | 1 a. ____________________________ b. Total dollar amount of above loans (in thousands of dollars) ................................ | RCFD 3562 | 142 b. _____________________________ c. Range of interest charged on above loans _______________________________________________________ (example: 9 3/4% = 9.75) .......................................... | RCFD 7701 | 7.88 | % to | RCFD 7702 | 7.88 | % c. _______________________________________________________ __________________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________________ SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT | DATE (Month, Day, Year) | | | /s/ Kenneth L. Tilton Executive Vice President | 7-31-96 __________________________________________________________________________________________________________________________________ NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED (TEXT 8903) | AREA CODE/PHONE NUMBER/EXTENSION | (TEXT 8904) Karen Gatenby, Vice President | (713) 216-5263 | __________________________________________________________________________________________________________________________________ FDIC 8040/53 (6-95)
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